Reform of the Guardianship Action

The purpose of this constitutional action is to protect the fundamental rights of individuals. It has become a mechanism that is appreciated and close to the lives of Colombians. However, the Government presented a draft Legislative Act to reform it in the face of difficulties such as its excessive use and judicial congestion.

Will only the judges of the specialty or jurisdiction of the case hear the tutela action?

That is the proposal, but it has several drawbacks. Not all municipalities have specialized judges, for example, family, labor or administrative judges, and on the other hand, there are matters that do not correspond to a specific branch of law, such as health, education and the free development of personality, what is clear is that they are fundamental rights. That is why the tutela was conceived to be known by all judges, who in this function are constitutional. In addition, the reform may congest certain offices such as labor offices.

What does it mean that a guardianship can only be filed by any person with legal standing?

From now on, only the affected party, its legal representative or attorney-in-fact may file a complaint. The broad concept is changed so that whoever can present it is any person. It is regressive to restrict the enforcement of the rights of others or rights of collective ownership that indirectly affect people or certain resources such as natural resources, when other actions are not effective.

Are tutelas against court rulings being curbed?

They consider that this generates the so-called train wreck and judicial congestion, however, this issue has already been addressed by constitutional jurisprudence, the tutela against judicial decisions is inadmissible, except for violations of due process, that is to say that the judge deviates grossly from the procedure or rules without adherence to the law, among other aspects. Judges may make mistakes, set excessive requirements or demand that these tutelas be filed through an attorney-in-fact, which hinders the exercise of the tutela as a suitable mechanism of protection. Due process is a fundamental right that is violated within the processes, also generated by the actions or omissions of lawyers.

Can guardianship no longer be initiated at any time?

It is proposed that there be a forfeiture period. It is true that the best for the protection of a fundamental right that is violated or threatened is that it be protected promptly, that is, that there is immediacy, but this is not determined by the passage of time or the occurrence of a period or term provided by law, but by the assessment made by the judge in the specific circumstances of the case, sometimes there is material impossibility to exercise the tutela action and in others the violation or threat is maintained for years.

You have expressed objections to the government’s project, what do you propose?

From the Constitutional Observatory of the U. Libre we consider that with respect to the previous proposals, the guardianship should be maintained as it is at present. No reforms should be introduced that denaturalize it, take away its informality, its efficiency or distance it from ordinary people. This is not where the judicial congestion lies, in order to avoid so many tutelas or massive tutelas, for example, in health, we must attack the problem of poor service provision. Finally, if justice reform does not seriously address judicial congestion and corruption, it is useless.

Kenneth Burbano Villamarín
Thursday, September 20, 2018