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Carta Magna and its principles
Within the Magna Carta, several fundamental principles and rights, which must be complied with by the State in general, and under no circumstances will be accepted or consent its transgression and/or run over, although it is true, each and every one of the Justice administrators enjoy interpretive autonomy to issue their decisions, also true that they cannot fail to capture all their decisions according to law. Within the purposes of the Colombian State, defined by article 2 of the Constitution, is that of the guarantee and respect for human rights.
That is why the Constitution is that norm that will always have significant prevalence over others, since it is the Magna Cart Legal Reasoning Methods. In Colombia, in accordance with the higher norm, Law 1564 of 2012 in its article 1 indicates: every person or group of persons has the right to the effective jurisdictional protection for the exercise of their rights and the defense of their interests, subject to due process of reasonable duration.
The procedural terms will be observed with diligence and its unjustified breach will be sanctioned, General Code of the Process. For its part, the Constitutional Court seeks and pursues the guarantee of human rights, therefore, has pointed out the following: within the perspective of permanently creating and defining new human rights that respond to the demands of the various historical conjunctures, it is He speaks today of a fourth generation of such rights that would have as a specific purpose that of responding to both scientific and technological progress and the questioning caused by genetic manipulation.
Or for the risk of the universal misinformation of the ultramodern procedures of the media (Constitutional Court, First Review Room. However, within the Colombian system, various shortcomings are presented against the real guarantee of human rights since, in 1997, it evidences the contradiction that exists between what enshrines the Colombian Constitution and the reality that millions of Colombian citizens live. The Constitution establishes a social rule of law and the branches of public power must ensure compliance.
The Constitution as a norm of norms. As a first measure, the law must be understood with a system of legal norms, (principles and norms), established for the correct regulation of relations within a society, being its compliance compliance, however, despite the clear imperativity In observance of them, it is common for them to be transgressed and raped not only by people, but on numerous occasions by the State itself, judicial authorities and/or administrative authorities, therefore, it is necessary to cover them of inviolability, being symbolized in sanctions Applied by the State.
In accordance with the foregoing, in order for law to exist, there must be norms, and every norm must be immersed within the interior of a specific legal system, in the particular case the Colombian, that is, a norm is valid in Colombia: in accordance with the patterns that Colombian law believe for the formation of norms or laws, all aimed at proper functioning and therefore balance between the State and individuals, looking for a country that works correctly, and for them there must also be limits between each of the Public powers of the State, allowing to maintain the correct balance.
Likewise, the Constitution must be understood as the norm of norms, which forces the State to establish a constitutional control system, empowering it to cancel the failures that the Constitution contravenes, declaring them as unconstitutional, and thus recognize its prevalence and superiority. "The Constitution is established as a source of norms that establishes values, principles and fundamental rights of the ordering, which limit the power of the legislator through constitutional control, whose guardian is the same Constitutional Court" Calderón Villegas. Interpretive autonomy of the judge.
In Colombia, the judicial precedent with the passing of time, has taken great strength, since it is from it, both obligations and rights are recognized or denied, as the case may be, therefore, leave the door open for a greater interpretation and regulatory hermeneutics of the one who administers justice that knows of a particular case, which admits a higher level of interpretive autonomy of the judicial operator, regarding the abstraction of the norms in general and its correct application, since, according to the Constitutional Court , with this creative function, the judge must not only be reduced to the simple mechanical attribution of general postulates.
Impersonal and abstracts enshrined in law to specific cases. Constitutional court. According to the above, the judge’s function must be understood as a work of broad complexity, because with this creative characteristic, the plurality of cases similar to decreased because, it is no longer a matter of a net adjustment of the case to regulations applicable to the case, and That currently abounds the uniqueness of social reality, that is, individual and specific cases are gaining strength are no longer so simple to resolve and the judge’s responsibility has grown abysmally, therefore, superior interpretation and hermeneutics of the norm are needed.
Because these types of cases cannot be fully understood by the current current positive legal system. Therefore, the role of the judge, in addition to containing the creative function, has a rational type and in addition to greater complexity, it also has the function of integrating the right to legal system and therefore to a state to a state. The timely solution of a conflict and in turn to the effective guarantee of fundamental rights, is and must be the main objective of the judge that interprets the norm, consequently, the creative function turns out to be of greater responsibility, since it is not only to create by Create rights.
But, on the contrary, it is to frame the right to the new political relations that society is going through, since it is in constant change and evolution. However, this creative function, which indisputably goes hand in hand with the interpretive autonomy and the discretion of the administration of justice, cannot mutter an inadmissible arbitrariness, since it is inconceivable that, because of what is mentioned, they are emitted decisions that contradict the law in force in force, and in consequent, rights that may be of a fundamental type. Therefore, the judge or who is empowered to administer justice.
It is obliged to fail in accordance with the provisions of the legal system and the judicial precedent, that is, at all times the starting principle should be applied, by which the provisions of hierarchical superiors may not cease to be applied, except except That the existence of facts in the process that make the precedent to the specific case, however, the Constitutional Court have indicated that: the judge is submit to the decisions of the high courts, except in constitutional matters whose doctrine is mandatory, it cannot be understood absolutely, since the principle of judicial autonomy would be completely annulled.
In addition, jurisprudence would become inflexible to social changes. Constitutional Court, Third Review Room. Faced with this issue, the jurisprudence of the Constitutional Court has indicated: the decidenci ratio, which is the direct legal basis of the judgment, the judicial precedent that, by virtue of the right to equality, has binding effects and must be applied to resolve cases similar, this because it constitutes the set of legal arguments that allow solving the problem debated in the case and explaining the decision adopted in the light of the facts that support it.
So that the decidendi ratio expressed in the judicial precedent constitutes an important limit to judicial autonomy that cannot be unknown to the judges. Constitutional Court, Ninth Review Chamber. Likewise, the jurisprudence states that in cases where the inapplicability of the judicial precedent is reasonable for the correct solution of a dispute or litigation, the judge is authorized, however, it must provide a reasoning of sufficient justification for the provisions of the provisions of the provisions of the Hierarchical superior organ, reasons that must contemplate the existence of elements of judgment that were not reviewed or considered in its opportunity by the hierarchical superior.
Consequently, from this, the application of the judicial precedent is inadmissible, since it can violate fundamental rights, therefore, the Constitutional Court, warns of the interpretive autonomy and judicial independence of those who administer justice that: “The officials commissioned To administer justice, they should not be subject to any type of pressures, insinuations, recommendations, demands or advice in parts of other organs of the Judiciary or even the same judicial branch ”. Which allows us to interpret that judicial agency is not absolute.
Well, as indicated in article 230 of the Political Constitution of Colombia, “the judges, in their orders, are only subject to the empire of the law. Equity, jurisprudence, the general principles of law and doctrine are auxiliary criteria of judicial activity. “, In the understanding that the judge must utter the provisions of him with observance of the provisions accepted by the legal system of a legal nature respecting the constitutional principles and rights corresponding to each matter. The above is contradictory, since it is understood that the judge is obliged to fail in accordance with the provisions of the law and not in accordance with the orders of the hierarchical superiors of the judicial branch.
However, the criterion that the same judge has regarding the same issue may vary later because it is unlikely that the judge maintains his judgment or criteria with the passing of the years, because as mentioned above, according to the changes and The volatility and evolution of society, and therefore the administration of justice, the right in general is linked to change and for this reason, is also forced to evolve, which leaves a door open to disconnect and separate from the provisions Article 230 of the Political Constitution of Colombia cited above.