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10 - Between Exception and Transition

Proportionality and Necessity in the Colombian Quest for Peace

from Part III - Proportionality, between Transformation and the Status Quo

Published online by Cambridge University Press:  27 October 2022

Francisca Pou-Giménez
Affiliation:
Institute for Legal Research, Universidad Nacional Autónoma de México
Laura Clérico
Affiliation:
Universidad de Buenos Aires, Argentina
Esteban Restrepo-Saldarriaga
Affiliation:
Universidad de los Andes, Colombia
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Summary

Proportionality purports to contrast means with ends to decide whether a specific rule breaches the Constitution. The chapter starts by analyzing discussion of the 2016 agreements between the Colombian government and the FARC guerrilla in the Colombian Constitutional Court, whose justices split over the standard of review to be used to decide the scope of the special legislative powers conferred to the president to implement the Peace Agreement. Part of the Court believed that those special presidential powers were to be scrutinized under stringent standards similar to those applied in judicial review of emergency powers. Others pointed out, by contrast, that those powers were to be deployed not in an emergency setting, but in a transitional one where more lenient standards of review apply. The chapter suggests that this debate between exception and transition illuminates the analysis of how judicial discourses build relations between means – legislative and executive norms – and goals – attaining peace – adding dimensions to the proportionality/necessity framework as a field where judges deploy their powers to exert political control over other public branches. While the Court framed the debate around the concept of “necessity,” Colombian constitutional discussions suggest that necessity and proportionality could even be interchangeable concepts.

Type
Chapter
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Proportionality and Transformation
Theory and Practice from Latin America
, pp. 223 - 242
Publisher: Cambridge University Press
Print publication year: 2022

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