“New” Authoritarian Logics and Crisis of Rule of Law in Colombia.

An Analysis of Criminal Legislation of Emergency Inscribed in Legal Management of Social Protest

Abstract

This article aims to analyze a current issue and a concern to theorists of criminal law and the theory of the State, which is the social protest as a constitutional right and its processes of criminalization and prosecution by the Colombian State. The theme proposed to be studied here, has a close relationship with consolidation or debacle of social welfare law of Colombian Nation. This is due to the fact that the way the social protest is handled by the Government, suggests it’s democratic or authoritarian character, bearing in mind that criminal law turns out
to be an appendage of the constitutional right of the rule of law, and therefore, an appendix to the theory of the State.

Due to the above, the analysis made of the proposed theme, is looking from a critical perspective to determine the current situation in the exercise of the constitutional right to social protest, the challenges of ordinary legislation as regulations for emergency for full satisfaction of this right and the way how those challenges in authoritarian contexts, where takes precedence values such as safety above principles and higher values such as freedom, political pluralism and dissent; have denied in practice the exercise of this right, returning at times of the 1886 Constitution where it was expressly forbidden to exercise the citizen protest.

Under the same line of analysis, it will seek to warn that the processes of criminalization and prosecution of social protest in Colombia have become a conception of popular struggle as a crime, which could be contained through criminal law, thus, criminal law becomes an instrument of power to control and maintain the established order, thus fulfilling a political and ideological function that circumvents the main liberal and democratic principles, that should inform their practice, thus becoming an authoritarian paradigm of state openly against the rule of law which formally proclaims the 1991 Constitution.

According to the above, this research work seeks to demonstrate the following working hypothesis: “as opposed to the model of social and democratic state of law, formally declared in the Constitution of 1991, in reality there operates an authoritarian and democratic versión of State of Rule, very efficient in terms of social control. In this context, the orientation of the criminal system and “public safety” departs from the system of guarantees inherent in the rule of law; to become a kind of authoritarian criminal law considering certain people as enemies of society, applying criminal law emergency which is incompatible with the principles of the rule of law”.