State of Emergency in Colombia and Application of the Proportionality Principle: Analysis of Six Representative Cases
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Abstract
This article accounts for the way proportionality principles have
been executed in Colombia for the control of constitutionality of the
states of emergency, through the evaluation of six (6) special cases
from 1991, four (4) of them related to internal states of exception
and two (2) of them related to social emergency. A qualitative
methodology was used to describe the way the Constitutional
Court was applying the proportionality principle to analyze such
exceptions, accounting for an analysis matrix that describes the
key points of such principle, to wit: a) the existence of a special
crisis and not of a structural damage to the states of exception; b)
not suspension of human rights or basic freedom of people over
which measures are imposed; c) not interruption of the normal
operation of the government branches; d) the exercise of powers
exclusively to effectively face abnormalities; the strict relationship
between cause and abnormality and, in this sense, the direction of
decrees only and exclusively to resolve the causes that give origin
to the state of exception; e) the length defined for the states of
exception (Cifuentes, 2002) to conclude that the Constitutional
Court, while applying the proportionality principle, has failed to
make an exhaustive judgment of the requirements incorporated;
in this way, it has allowed a perpetuation of the executive power
and a government with no separation of powers.