Dismissal and general disqualification of popularly elected officials

Constitutionality review as per a citizen request (Lilian Maria Perea Benitez & others) of Article 45 (Partial) of Act 734 of 2002

Date:  03/13/2019

Judge-Rapporteur:  Carlos Libardo Bernal Pulido

Concurrence:  Alejandro Linares Cantillo.  Antonio José Lizarazo Ocampo

Dissent:  José Fernando Reyes Cuartas.   Alberto Rojas Ríos

The reviewed provisions.  By Act 734 of 2002 the Civil Service Disciplinary Code was issued.  Challenged portion of Article 45 stated that the Inspector General has the power to dismiss and disqualify elected officers, when imposing disciplinary actions.

The plaintiff´s arguments.  The plaintiffs, in joined actions, pointed out that the word “elected”, in mentioned Article 45, indirectly transgressed Article 23 of the American Convention on Human Rights – ACHR.  This Convention is in effect in the Colombian legal system by means of the authorization by Article 93 of the Political Constitution.  Article 23 of ACHR sets up the rights of the citizens to participate in Government.  The demandants claimed that the Inspector General has not the authority to punish popularly elected officials.

Issue: Does the Inspector General have the power to punish popularly elected officials?

Ruling and reasoning.  Yes.  The Court concluded that the challenged regulation does not violates the Constitution nor the ACHR, since the disciplinary investigation of elected officials is a legitimate restriction of their status provided that due process is followed and trial guarantees respected.  Besides, the decisions by the Inspector General are themselves subject to further control by the judiciary.  The Court explained that it was following a precedent in the matter, and did not find any reason to deviate from it.

As a consequence, the Court declared CONSTITUTIONAL the accused regulation.