La objeción de conciencia en la jurisprudencia de la Corte Constitucional colombiana

Abstract

El examen de los casos comprende una exposición breve de los supuestos de hecho de la demanda de tutela, o la descripción de las normas demandadas de inconstitucionalidad en cada ocasión, según el caso, los argumentos de los demandantes, las consideraciones de la Corte Constitucional y la decisión adoptada en cada oportunidad.

This paper offers a synthesis of the overall set of judgments pronounced by the Colombian Constitutional Court up to this date, where the subject of conscientious objection has been addressed. This overall vision allows the introduction of findings and conclusions relating to the evolution of the constitutional jurisprudence in this respect. In addition, the close relationship between freedom of conscience and religious freedom can as well be appreciated, this relationship being, as it will be seen, the determinant reason in all the objection cases examined by this court. All the awards and decisions relating to this matter are analyzed, both those pronounced either in the exercise of the abstract control of the constitutionality of the laws or in terms of legal protection (“tutela”) of fundamental rights, and not only the ones involving bioethical topics. As per the theoretical frame emanating from these judgments, it can be summarized into the following conclusions:

a) The freedom of thought is the power to profess or adhere to a given ideology, philosophy, or cosmic vision.

b) Religious freedom involves not only a belief or act or faith, but basically a personal relationship of the individual with God, or divinity or higher spirit or superior being, as translated into supporting or following a given moral system.

c) Freedom of conscience is the power to discern between what can be taken as good or bad in moral terms with relation to what we specifically think we must or must not do in a given situation. It is the subjective morality rule.

d) The relationship existing between and among the freedoms of thought, conscience and religion consists in the fact that the first one is a consequence of the other two.

e) Both freedom of thought and religious freedom involve the opportunity for individuals to achieve coherence between their personal life and the dogmas and beliefs of their own religion or the postulates of their philosophy, ideology or cosmic vision.

f) Freedom of thought and freedom of religion can not be mistaken for freedom of conscience, since enrolling in a certain philosophy or religion is not necessary to become able to deliver practical judgments or opinions around what is right or wrong in a specific situation.

g) Conscientious objection is the figure that enables any individuals to refuse to perform a given juridical obligations if the related activity implies the performance of actions, conducts or behaviors running contrary to their personal convictions or in any way conflicting with them.

As it can be noticed, the conceptual framework established by the jurisprudence with regard to both the definition of the conscientious objection as an exercise of freedom of conscience, and the relationship between this right and the freedoms of thought and religion is clear. But not the application of this theoretical conceptual framework to the solution of particular cases where, as analyzed in this article, the jurisprudence seems to be quite restrictive in some cases and contradictory in others, although in general lines it has evolved towards a broader defense of religious freedom and the use of conscientious objection.

The examination of cases includes a brief exposition of the assumptions of fact in the claim for legal protection (“tutela”), or the description of the rules of unconstitutionality demanded each time, as the case may be, as well as the arguments of the plaintiffs, the considerations of the Constitutional Court, and the decisions adopted in each case.