Colombian constitutional law : leading cases / Manuel José Cepeda Espinosa, David Landau.
2017
KHH2921 .C438 2017 (Map It)
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Title
Colombian constitutional law : leading cases / Manuel José Cepeda Espinosa, David Landau.
Published
New York, NY : Oxford University Press, [2017]
Call Number
KHH2921 .C438 2017
Former Call Number
Col 910 C3339 2017
Edition
First edition.
ISBN
9780190640361 (hardback ; alk. paper)
0190640367 (hardback ; alk. paper)
0190640367 (hardback ; alk. paper)
Description
x, 436 pages ; 27 cm
System Control No.
(OCoLC)959373260
Summary
"This book provides in English the case law of the Colombian Constitutional Court, which has become one of the most creative and important courts of the global south and the world since its creation in 1991. It offers ... extracts of the Court's most important cases, along with notes and introductory materials to place them in historical and comparative context. The book covers the Court's landmark rights jurisprudence, including the decriminalization of drug possession, the legalization of same-sex marriage, the protection of social rights through broad structural orders such as the ones covering internally displaced persons and the right to health. It also covers the protection of the rights of indigenous peoples to cultural autonomy and to be consulted before economic projects are undertaken on their land, and the rights of victims of the country's long-running internal armed conflict to truth, justice, and reparations. Also provided are the Court's most noteworthy structural cases, particularly its successful attempt to limit the use of states of exception and its substitution of the constitution doctrine, which allows it to strike down amendments that replace rather than amending core principles of the existing constitutional order. The materials focus on the Court's contributions in a comparative perspective, showing how they are exemplary of a range of problems faced by courts around the world and particularly as an example of aggressive judicial review by the courts of the global south. At the same time, they demonstrate how many of the Court's key cases - such as the judicial review of the peace process with guerrilla groups or the striking down of an amendment to allow a popular president to seek a third term - are reactions to the historical features of the Colombian legal and social landscape."-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Added Author
Table of Contents
Preface
ix
1.
Introduction to the Colombian Constitution of 1991 and the Constitutional Court
1
A.
Prelude to the 1991 Constitution: Institutional Decay and a Crisis of Public Order
2
B.
Making of the 1991 Constitution
5
C.
Structure and Powers of the Colombian Constitutional Court
9
D.
Constitutional Court's Decision-Making Process and Interpretive Style
14
E.
Constitutional Court in the Post-1991 Political Context
16
F.
Methodology and Plan of This Volume
19
pt. ONE
Constitutional Court
23
2.
Role of the Constitutional Court
25
A.
Role Conception of the Constitutional Court
27
B.
Precedent and the Effects of Constitutional Court Decisions
32
1.
Power of the Constitutional Court to Determine the Effects of Its Own Decisions
32
2.
Construction of a System of Precedent
35
C.
Constitutional Block: Incorporation of International Law
42
pt. TWO
Rights
49
3.
Dignity and Autonomy
51
A.
Decriminalization of Narcotics for Personal Use
52
B.
Euthanasia and Dignified Death
59
C.
Personal Appearance
65
D.
Intersex Rights
67
E.
Abortion
73
4.
Equality
83
A.
Equality and Dignity Rights of Same-Sex Couples
85
B.
Equality Affirmative Action, and Gender Quotas
101
C.
Discrimination against the Disabled and the Positive Dimension of Equality
108
5.
Freedom of Speech and Freedom of Religion
115
A.
Limitations on Speech for Security and Decency
117
B.
Limitations on Speech for Privacy and Reputation
121
C.
Freedom of Expression and Political Campaigns
128
1.
Financing Political Parties and Campaigns
128
2.
Access to Televised Debates
132
D.
Religious Establishment
134
E.
Accommodation of Religion and Conscientious Objection
138
6.
Social Rights
147
A.
Foundations of Justiciability: The Right to a Minimum Level of Subsistence
150
B.
Court and Economic Crisis
154
1.
Housing Finance Crisis
154
2.
Budgetary Crisis and Public Sector Salaries
159
C.
Right to Health: From Individual to Structural Remedies
167
1.
Individualized Enforcement
169
2.
Structural Enforcement
172
D.
Structural Remedy for Internal Forced Displacement
178
E.
Informal and Marginalized Work
190
1.
Street Vendors
191
2.
Informal Recyclers
195
3.
Sex Workers
199
F.
Right to Water
204
7.
Rights of Victims and Transitional Justice
213
A.
Rights of Victims during Criminal Processes
214
B.
Rights of Victims during Internal Armed Conflict
217
C.
Peace Process with Guerrilla Groups
226
8.
Rights of Indigenous Peoples
241
A.
Conflicts between the Rights of Indigenous Communities and Their Members
243
1.
Non-traditional Criminal Punishment
243
2.
Religious Conflict and Diversity
246
3.
Cultural Practices and the Rights of Children
249
B.
Diversity and Political Representation
252
C.
Right to Prior Consultation
255
1.
Consultation on Projects Exploiting Natural Resources
257
2.
Consultation on Government Programs
259
3.
Consultation on Congressional Laws
264
pt. THREE
Separation of Powers
271
9.
President: Problems of Executive Overreach
273
A.
Limiting Executive Discretion
275
B.
Separation of Powers and National Security
279
C.
States of Exception
287
1.
Review of the Declaration of a State of Internal Commotion
289
2.
Review of Decrees Issued during a State of Internal Commotion
297
10.
Congress: Problems of Abdication and Deliberation
303
A.
Scope of Parliamentary Inviolability
305
B.
Legislative Delegation to the Executive
310
C.
Legislative Deliberation and Procedure
317
pt. FOUR
Constitutional Change
325
11.
Constitutional Amendment and the Substitution of the Constitution Doctrine
327
A.
Procedural Review of Constitutional Amendments
328
B.
Control of Constitutional Reform via Referendum
334
C.
Substitution of the Constitution Doctrine
340
1.
First Re-election Decision
342
2.
Second Re-election Decision
351
3.
Fiscal Sustainability Amendment
360
Appendix 1
Orders of the Constitutional Court
371
A.
Modulated Decisions on Abstract Review
372
1.
Conditional Decision
372
2.
Deferred Decision
374
3.
Integrative Decision
376
B.
Tutela
377
1.
Structural Orders
378
2.
Inter Comunis or Inter Pares Effects
381
3.
State of Unconstitutional Affairs Doctrine
382
Appendix 2
Constitution of Colombia (1991) (selected provisions)
387
Table of Cases
417
Index
423