The resistance against the constitutionalization of Administrative Law: The Council of State and the discretionary acts case that ordered the withdrawl

Abstract

The purpose of this article is to analyze the intensity of the constitutionalization in Colombian administrative law, especially in discretionary administrative acts, that command the retirement of members of the Military Forces, Police, Administrative Department of Security (DAS) and Penitentiary National Institute of Colombia (INPEC). In order to achieve said purpose, the author compares –through dynamic and static analysis of case law- the readings made by the Council of State and the Constitutional Court, and concludes that the position of the latter is the most legally convenient and the most efficient when it comes to the administration of public resources, therefore, it must be accepted by the Council of State. The convenience analysis uses as reference points 1) some constitutional principles; 2) the Constitutional State; 3) the national and foreign administrative doctrine; and 4) some Inter-American Court of Human Rights rulings.