Abstract

MORA MAYORGA, Julio Alexander  and  SANCHEZ HERNANDEZ, Hugo Alejandro. THE RESTRICTIVE NATURE OF DISABILITIES IN COLOMBIAN ELECTORAL LAW: A LOOK FROM THE JURISPRUDENCE OF THE COUNCIL OF STATE AND JOHN RAWLS'S DISCOURSE ON IMPARTIALITY. Novum Jus [online]. 2022, vol.16, n.3, pp.219-255.  Epub Mar 03, 2023. ISSN 1692-6013.  https://doi.org/10.14718/novumjus.2022.16.3.9.

Disqualifications are restrictions that seek to limit the right of access to public positions or functions. In this sense, they have a prohibitive, restrictive, and non-explanatory nature, while their interpretation is restrictive, and therefore their analogical or extensive application is not appropriate. However, the recent jurisprudence of the Fifth Section of the Council of State has established new interpretive criteria that make the scope of the grounds for electoral disqualification more flexible. In this sense, the present reflection addresses the nature of these inabilities through its confrontation with the thesis of justice as impartiality developed by J. Rawls in his work The Theory of Justice, with the aim of establishing whether this new hermeneutics ignores or not the fundamental minimums of citizens. The research approach is qualitative, reflective and critical, through the review and documentary analysis of rules, jurisprudence and doctrine, which is opposed to the jurisprudential hermeneutics on the subject under study. In that order, it was identified that, in the light of J. Rawls's thesis, the finalist reading applied by this recent jurisprudence ignores basic principles to safeguard a fair social order, such as respect for basic freedoms and equal opportunities of citizens, circumstances that also put legal certainty at risk as fundamental element of a social and democratic State of law.

Keywords : Electoral disqualifications; restrictive interpretation; judicial precedent; justice; impartiality; justice principles.

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