Keywords
judicial function
non-judicable issues
administrative police
superintendence
due process
procedural guarantees
double instance
impartiality
judicial forms
sanction
How to Cite
Abstract
One of the major achievements of the liberal State was the establishment of the principle of “balance of powers” by means of its separation, as a reaction to monarchic absolutism. Nevertheless, given that today the relations between the individuals are more intense, vertiginous and complex because we lived in a more interdependent and technified world, the State has had to adapt its institutions to the challenges of the modern society. As a result of that change, the functions of Executive authority go beyond “fulfilling the execution of law” and since old ages they include the power of intervention on diverse manifestations of life, in special by means of exercising the functions of administrative police, which entails faculties like regulation and control, whose scope and dynamism have allowed the executive authority to occupy spaces attributed previously to the other branches of the power, situation that produces serious restlessness about the extent in which these decisions can affect the State of Right.
In our country this change has been reinforced by the operative crisis of the Judicial Branch, so given the accumulation of processes, it has been decided to transfer the knowledge of some matters to the administrative authorities. Specifically, the present document comments on the implications of “law 446 of 1998”, which assigned judicial functions to some entities of the Executive Branch, and wants to put forward a critic to his authors by the form they constructed the value judgment that serves as the base for the promulgation of the law. This value judgment, no matter being valid from the light of the Political Constitution, suffers from failures on its foundations, necessity and formulation, taken in to account that a change on competitions of that nature cannot be simply considered as variation of the judge or a transfer of files, but requires a thorough revision of the matter, a coherent structuring of the procedural route that must be followed and a revision of the additional functions served by the respective organization.
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