CONTROL OF SOURCES OF LAW (1992-2000)

CONTROL OF SOURCES OF LAW (1992-2000) INTRODUCTION

The sources of law in Colombia, have been a constant struggle between the executive and the judiciary, the two powers have sought to define the scope of such by executive decrees and orders and judgments on the other. The truth here is that the two powers broke a historic battle between the promulgation of the constitution in 1991 until 2000, leaving countless evidence and case law decrees that illustrate positions of the two powers, depending on the context and time and the purposes intended each. The historical tour is in sight to these judgments and decrees, help establish the endless theories that have opted in Colombia to determine what would fill the void left by the law in some difficult cases and regulatory gaps that live right on the move are inevitable?And the definition of compulsory ancillary each of these sources will be within the legal system. Analysis and disputes will be in the respective work each high court judgments that reflect their position on the issue, and the decrees issued by the executive and the interests of this to identify the sources of law.PERIOD (1992-1995): FIRST BATTLES IN THE CONSTITUTIONAL DEFINITION OF PREVIOUSTowards a strong precedencial driven by the executive: Article 21 of Decree 2067 of 1991. The constitutional precedent, and its value was defined by constitution, as an auxiliary criterion in the art. 230 which stated: "Los judges in their decisions, are subject to the rule of law. Equity, law, general principles of law and doctrine Are auxiliary criteria of judicial activity ¨. [1] but the executive in 1991 and some judges, with a trend of legal reform and the claim that the failure of enforcing the constitutional court, which had greater value and enjoyed by the formation, with such intentions, the executive of the time with a special constitutional power to define and regulate the procedures of the court, decides to enact the 2067 decree which in its content (especially the Arts. 21 and 23) were expressed positively the increase of normative value The court rulings have. However, the traditionalism of judges within the court, interposed between the executive's plans and some progressive judges, in that it rejected the new system of precedents that the reformers had been imposed by the decree. You sparked a battle within the court, which issued several statements, which at first glance they were to reveal the criteria by which the court did not consider if you want this decree, such criteria were: the traditional sources and functional autonomy . In one of the most controversial decisions of the court at this time is the c 113 1993, as this is reflected in the criteria that the court decided to reject outright the reformist trend of the sources of law, on the sidelines of the sentence seemed to have stopped the fight in that apparently provided a generous standard for constitutional precedent ¨ the sentences he utters the Constitutional Court have the force of res judicata are constitutional and binding on all authorities and individuals ¨ [2] very generous, it seems, but the court in the same statement later said that mandatory for authorities and private individuals, but only does the reference to a faculty already stipulated in the constitution [3] in which it will be for judgments of abstract review of constitutionality and is inter partes, which closes over the narrow field of mandatory precedent and no assistants. As for the functional autonomy, the court explained that it was her only which should set the value of the judgments that this is according to the constitution, because it has the duty and obligation to ensure the integrity and supremacy of Constitution . During the period 1991 to 1995, the court reiterated its multiple statements over and over again, because it paved the traditionalist view of the sources of law, but over the years, within the constitutional court, many judges were opting for the thesis reformist minority were always these, and it is very common to find sentences in which these defend, that position, because they had to take account of the surveillance had saved the integrity and guard the constitution and its verified the previous statements that aids the constitutional precedent. The reformers had the opportunity later was a suit challenging the law 153 of 1887, and primary law database throughout the system and the system of interpretation in the legal sources, this statement is demanded of this article 8 law, which he said: ¨ When there is no law exactly applicable to the case at issue, apply the laws governing such cases or matters, and failing that, the constitutional doctrine and general rules of law ¨. [4] the court to analyze this article, found a discrepancy between the expression of constitutional doctrine set forth in the above mentioned law and jurisprudence expression mentioned by the constitution. Which then generates the court made clear on the concept of constitutional doctrine and jurisprudence, in light of this ruling the court made clear that constitutional doctrine is divided into two: the first is the inclusive constitutional doctrine which is the same constitution and operates when there is a gap in the law and the constitutional doctrine of interpretation that are the interpretations that make the cut at the top card for this to be the top performer and legitimacy of this, which only meets clarify the legal gaps and hence its application or is not only a pattern auxiliary, while the inclusive doctrine that is the same constitution has implied obligation that is not debatable. In the case of precedents, which are the rulings of the court as to guardianships and other court not to have a value of obligation as well as in similar cases with similar circumstances. With this and other rulings, the Constitutional Court during this period, close the page in the discussion of constitutional precedent as an auxiliary source or mandatory, to stop clear cutting is necessary to express the traditionalist and the constitution and have been given the implicit value their judgments, and that is a function of monitoring and safeguarding the integrity of it could not fail in another way that the constitution has already been pronounced. For many, this only proves that the judges of that time were either too cautious with their work or about dinosaurs right.[1] Constitution of Colombia. 1991. Read, 2011 edition. [2] Judgement c113 of 1993. MP. Jorge Arango Mejía. [3] Article 241, no. 4 č.p. [4] Act 153 of 1887. General rules on the validity and enforcement.CONSOLIDATION IN THE PERIOD ABOVE COVERS THE YEARS 1996 TO 2000For the consolidation of constitutional precedent could not reach a consensus of the nine judges who make up Colombia's constitutional court judges dominated by about 5 to purely ideological tendency traditionalists on the sources of law not allowed to take the big step of constitutional precedent is essential in a social state of law.The constitutional precedent is based on fundamental principles and rights that apply to similar cases in the theory and have a binding force for the judges to be issued by our constitution in the Colombian case this is true in the future when our constitution so young but in cases that merit review and to break with failure dictates of other courts.Consolidation is achieved with the previous sanction of statutory law for the administration of justice in Article 48 before its amendment said. SCOPE OF THE JUDGEMENT IN THE EXERCISE OF CONSTITUTIONAL CONTROL. The judgments issued pursuant to constitutional control have the following effect:   1. The Constitutional Court handed down as a result of the review of legal norms, whether by action or prior review, the performance of automatic control of constitutionality, shall be binding upon and with effect erga omnes in its operative part .The relevant part constitute auxiliary criterion for judicial activity and the application of the rules of law in general. Only the interpretation by way of authority does Congress have mandatory general. [1]    Which generated the union of judges who then formed the constitutional court. To defend against direct attack from Congress in an effort to limit the scope of the rulings by that entity. Declared enforceable emphasized eliminating the expression before the original text of the standard.With this step, the court began its constitutional doctrine based on the precedent and very important at the time of granting the right to equality and legal certainty enshrined in the constitution of Colombia, but also started a fight in the judiciary by the thesis which hosted the Constitutional Court. Perhaps for lack of knowledge about the extent of the powers conferred by the nascent constitutional court. Whose function is to safeguard our constitution.  One of these conflicts are seen in the judgment SU-640/98 dealing with the period of election of mayors that conception is different from the council of state in the sentence reads: "The State Council, however, disagrees the position expressed by the Constitutional Court, as expressed in various judgments. The supreme court in the administrative court finds that the period of mayors and governors is institutional, that assertion based on a proper interpretation of the relevant constitutional provisions. That is, the position of the State Council - based on a serious and respectable argument - deliberately departs from the position it has consistently defined the Constitutional Court on this matter. That is precisely one of the main reasons for declaring the partial invalidity of the National Electoral Council resolution which extended the period for exercising the mayor of Fresno [2].From our point of view, the state council directly violated the constitution by failing to abide by court decisions to interpret constitutional and prosperous of the constitution, not being competent to do so.As the constitution law of laws supreme authority over the law shows that the constitutional court for the jurisdiction and authority emanating from the higher standard is the highest court in the country and the others must abide by its decision to maintain harmony and legal certainty.    CONCLUSIONSThe Constitutional Court is the head of the entire legal system in Colombia, has absolute jurisdiction and powers granted by the Constitution.Despite attempts of the legislature to restrict its broad spectrum achieves the constitution imposed on the three branches of power, this is evident in constitutional studies makes the decisions handed down by other courts.  If the role of lawyers and so is peace and to achieve this goal is the best mechanism for conciliation adquem that does not seem there was a higher-level political card.    Which leads us to believe that the flaws in the judicial system because judges do not assimilate medieval constitution change pachydermal making it the judicial function.