Abstract

ESPINOSA HIOS, José Guillermo  and  RAMIREZ DAVID, Cristian Salomón. What to do with the problem of Unconstitutionality by Omission? Is the Tutelage a Control Mean for the Legislative Relative Omission?. Opin. jurid. [online]. 2021, vol.20, n.spe43, pp.231-260.  Epub Mar 08, 2022. ISSN 1692-2530.  https://doi.org/10.22395/ojum.v20n43a9.

This text aims towards explaining the main problems of the current constitutionalism. I.e, the problem of unconstitutionality by legislative relative omission. Our Political Constitution (1991), unlike what happened in other judicial ordinances, does not consecrate explicitly a direct constitutional means of control of the transgressive legislative silences of the Political Constitution. Is for that reason that, jurisprudentially, the Constitutional Court has recognized its competence for examining the phenomenon of the partial legislative omission. Nonetheless, it reduces such power to the abstract control of constitutionality. For that, the main objective of this text is to analyze if the action of tutelage is a suitable jurisdictional resource for aiding situations of unconstitutionality by legislative relative omissions. In order to do so, some techniques such as document, hermeneutic and jurisprudential reviewing will be applied. With the intent of affirming that, because of the traits of the phenomenon, the direct control of constitutionality, performed in the tutelage action, is a constitutionally valid resource for compelling the omissive attacks against the Political Constitution.

Keywords : legislative relative omission; indirect control by constitutionality; tutelage action; legislative silence; unconstitutionality by omission.

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