Inhibitory rulings

In relation to the recent ruling of the Constitutional Court on the Wealth Tax, which we abide by and respect, we have some comments:

Almost two (2) years to know said ruling, when Decree Law 2067 of 1991 establishes peremptory terms to issue a Ruling.
The Constitutional Court did not rule on the merits, but decided not to rule on the lawsuit against the wealth tax.

But what is an inhibitory ruling?

They are those judicial decisions that, for various reasons, put an end to a procedural stage without deciding the merits of the matter before the judge or magistrate, that is, without adopting a decision on the merits, or rather, that the administration of justice does not pronounce, that is, does not rule, does not decide, does not judge.

In the case that occupies our attention, the Full Chamber of the Constitutional Court, after a detailed study of the claim and the structure of the arguments raised, decided to abstain, since it considered that the charges did not meet the necessary requirements for a substantive study against the challenged articles that regulate the wealth tax.

Consequently, the Sole Decision was: To declare itself INHIBITED to hear the claim proposed against Articles 35, 36, 37, 38 and 39 of Law 2277 of 2022 on the charges proposed for the alleged violation of Articles 95.9, 317 and 363 of the Political Constitution due to substantive ineptitude of the claim, since it found that the charges did not comply with the minimum requirements of substantive aptitude to advance a substantive study, such as specificity, sufficiency and clarity.

The foregoing merits the following consideration: There are a large number of unconstitutionality claims that are ending in inhibitory sentences.

For what reason? Because the Court has imposed, based on certain jurisprudential rules, severe requirements to rule on the claims and no matter how hard the plaintiffs try to support their arguments for the Court to make a decision on the merits, these end up in inhibitory rulings, which restricts access to constitutional justice.

We are not unaware that there is a very important work that takes place in the Office of the Magistrate Sustaning Judge, in which it is preliminarily verified that the claim complies with the legal and jurisprudential requirements for its study. Consequently, one would think that when the file reaches the Plenary Chamber, all the elements of judgment are already in place to rule on the merits.

In Judgment T-713 of 2013, the Constitutional Court addressed the issue of the content and scope of the inhibitory judgments, which it defined as

“those by virtue of which, for various reasons, the judge puts an end to a stage of the process, but in fact refrains from penetrating the subject matter of the matter before him by failing to adopt a decision on the merits, that is, ‘resolving’ only formally, with the result that the problem that has been brought before him remains in the same initial state. The indefinition subsists”.

Consequently, the inhibitory ruling prevents the guarantee of the fundamental rights to due process and access to the administration of justice, since it does not resolve the controversy for which the citizen sought the jurisdiction, thus prolonging the uncertainty about the alleged subjective right.

In the study of Ruling C-384 of 2022, the Constitutional Court declined to rule on the constitutionality of the challenged articles (on tax matters) due to substantive ineptitude of the claim; however, Justice NATALIA ANGEL CABO partially saved her vote against the decision of declining to rule because: “in the face of this charge, all the bases to make a judgment of equality could be seen in the action:

“in the face of this charge, all the grounds to make a judgment of equality could be seen in the action (...) To demand from a citizen greater argumentative burdens for the Court to proceed to make a decision on the merits, denaturalizes a public action.
(...)
the important thing in the study of admissibility is that the action can generate a rational and understandable debate about the alleged unconstitutionality of a norm”.

In this same sense and in the same Judgment C-384 of 2022, in stating his dissenting opinion, Justice JORGE ENRIQUE IBAÑEZ NAJAR in his analysis conceptualized that:

“although the judgment reiterates what has been said so far by the jurisprudence of this Court on the requirements for the admission of actions of unconstitutionality, the severity of the requirements to formulate them and with it the raising of charges for the violation of the principle of equality, increasingly distances the public action of unconstitutionality from the purpose set by the Constituent in Articles 40 and 241 of the Constitution according to which it is a public action as an expression of the fundamental political right of citizens to seek control over public power. Consequently, the Court is obliged to rethink such requirements to guarantee citizens' access to constitutional justice.”

.....

“The severity and exigency of the requirements established by the jurisprudence to formulate the charges for the violation of the principle of equality, are increasingly distancing the public citizen action that constitutes a political right of public control over the exercise of public power to convert or transform it into a cassation lawsuit for unconstitutionality which can only be proposed by experts, All of which does not conform to the provisions of Articles 40 and 241 of the Constitution and obliges the Court to rethink such requirements to ensure citizen access to constitutional justice under the terms of Articles 229 and 241 of the Constitution.

Finally, I note with concern the high number of unconstitutionality actions that are inadmissible or rejected for not complying with the strict requirements that the Court has imposed based on certain jurisprudential rules and the high number of inhibitory sentences in which, after the constitutional litigation process has been carried out, the inadmissibility of the claim is discussed again without considering the material requirements to decide on the merits, thus wasting an important effort of the intervening parties, the experts and the work of the Corporation itself in substantiating a process that ends with an inhibitory decision”.

A judicious interpretation of the facts described above would indicate that the claim of constitutionality of a norm would seem that it should become a strict constitutional cassation brief with all the technical requirements of an expert cassation lawyer in its study, drafting and presentation, in order to reach a decision on the merits.

Otherwise, the high number of inhibitory sentences produced by our Constitutional Court cannot be understood.