Abstract

RESTREPO TAMAYO, John Fernando  and  VERGARA CARDONA, Santiago Aicardo. Action of Unconstitutionality by Relative Legislative Omission: a Constitutional Procedural Instrument for the Effective Judicial Protection of the Fundamental Rights. Opin. jurid. [online]. 2020, vol.19, n.39, pp.203-226. ISSN 1692-2530.  https://doi.org/10.22395/ojum.v19n39a9.

Through the constitutional jurisprudential analysis method it can be said that based on the C-108 Sentence of 1994, there is a constitutional precedent that recognizes in a reiterated way the competence of the Colombian Constitutionalist Court for performing, through an unconstitutionality action, the abstract constitutionality control of the relative legislative omissions, which is a competence that has progressively widen its audit margin and has allowed the constitutionality control to not be exclusively restricted to constitutional scenarios of infringement to the equality principle, but also to be performed to any incomplete legislative development that turns out to be incompatible with the Constitution. For this reason, once this constitutional precedent is analyzed, this work proposes and understands the unconstitutionality by relative legislative omission as the lack of appropriate and timely legislative development of the Constitution that is verified in the partial non-compliance of a concrete constitutional duty and binding to be legislated, which is derived from the evolutionary and systematic interpretation of a discriminatory legal disposition, deficient or incomplete, that produces the infringement of the equality principle, the transgression of the right to due diligence or another constitutional guarantee; thus restricting or making difficult the enforceability, direct application and material efficacy of the Constitution.

Keywords : unconstitutionality by omission; legislative omission; unconstitutionality action; constitutionality control; constitutional supremacy; fundamental rights; legal activism; constitutional procedural law.

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