JUDICIAL ACTIVISM YES, BUT NOT SO

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By Jimena Marín Téllez

Many times I have defended the proactivity of the judges in the Superintendency of Companies and in the Superintendency of Industry and Commerce. However, what happened this week regarding a judge ordering the State to provide free COVID tests to the entire population has no presentation.

Lawyers know the impact that José Miguel Mendoza generated when he was Deputy Superintendent for Commercial Procedures of the Superintendency of Companies. It brought theories from more advanced jurisdictions than ours, generating a change in the agility of the procedures and an unprecedented trust in corporate courts.

When a judge uses his knowledge and experience to put it at the service of the effectiveness of justice, judicial activism is completely welcome. However, in Colombia various judgments have been presented which, although they are judicial proactive, generate a setback in the effectiveness of justice.

An example of this is the sentence that I mention. In a country like Colombia, requesting this from the Government would mean an impossible, even more so in the seat of guardianship, where a simple delay in compliance generates contempt, which entails time in prison.

An even more critical example is Ruling SU-074/20 of the Constitutional Court, which obliges EPS to finance in vitro fertilization treatments. Yes, how it sounds.

In a country where there are thousands of children awaiting adoption, our Court intends that health resources are invested in people who cannot or where it is difficult to have children.

This leads me to conclude that, in most cases, justice is detached from the reality of the country. Judicial activism should entail actions in favor of accompanying the rhythm of society, but it should not be the conversion of all the wishes of the population into rights that can be guaranteed by the state.