Normative Gaps And Contradictions Of Regulation To Social Protest

Normative gaps and contradictions of regulation to social protest

 In recent years around the world there has been an increase to social protest. From the streets of Barcelona, ​​Hong Kong, Beirut, through Quito, La Paz, Santiago de Chile and Colombia, we have witnessed a gigantic wave of people who take the streets to exercise their right to protest and demand changes in inequality, the corruption, economy and in general for a collective discontent for current governments.

In the history of Colombia, social manifestations became the strongest mechanism to defend constitutionally protected rights. According to the Popular Research and Education Center (CINEP), during 2013 the protests reached the figure of 1.025, the largest number recorded throughout the observation period that goes from 1975 to the present. 

The characteristics that have been developed in recent times in the country are stops, seedlings, road blockages, hunger strikes and cessation of activities. On the other hand, violence in the state’s response has been exacerbated, which repeatedly violates human rights through the arbitrary use of the criminal and police system that governments have given to social protest.

This work questions the scope of the right of social protest in Colombia, taking into account international and national regulations that reaffirm social protest as a fundamental right, taking into account such regulations, the gaps and contradictions of the regulation of protest may be evidenced Social.

In particular, it seeks to delimit the scope of the activities that the authorities can carry out in order to guarantee it and, at the same time, prevent citizens from abusing this right.

Criminalization of social protest:

The repression is not limited to the coercive control of the protest act. Protests, like any other type of collective action, require networks of social relations, organizations, identities and collective speeches. Edwin, c. R. citing Melucci.

Pacific social protest is a fundamental right in Colombia and for this reason, it cannot be criminalized, however, not all forms of protest have constitutional protection. Repeatedly, the Constitutional Court has ruled against the use of violence for political purposes, argued that in a democratic state of law is not allowed that type of coercion, since it closes the other institutional instruments such as: the statute of the opposition, the Revocation of the mandate, the principle of popular sovereignty, the control of constitutionality, the action of guardianship, the compliance actions and the popular actions which avoid armed confrontation and violent activities, since the existing mechanisms allow popular participation and receive Citizens’ claims.

In this way, the penalty is acceptable to the acts of violent protest, which must be clearly defined by law and be proportional, always thinking that it is the use of violence that can be penalized and not the act of protesting.

Regulatory framework for the protest and regulation of social protest in the Citizen Security Law:

International Human Rights Law recognizes the right to demonstration and social protest, which covers other rights such as the right to freedom of expression and opinion, freedom of meeting and freedom of association. That said, the Political Constitution of Colombia of 1991, in article 37 enshrines as a fundamental right to the meeting and the peaceful protest. Only the law may establish cases in which the exercise of this right may be limited. In the same way, it is protected by the International Human Rights Treaties that Colombia has signed, such as article 21 of the International Covenant on Civil and Political Rights and article 15 of the American Convention. Burbano, c. 

According to the above, authorities and media have expressed that social mobilizations affect other rights such as mobility, that is, it affects general interests, which is why they see the protest as part of the private interest, such as The right of a few. In fact, the confrontations that occur between protesters and police are to dissolve concentrations on public roads and give vehicular way, since in this way they justify the use of force, but according to the political letter no right is absolute, since it is limited for the development of others. So here we can see a contradiction in the national regulatory framework since the limitation of this right and, consequently of the social protest derived from it, is valid from the constitutional point of view, thus the general interests are affected.

When these types of cases are presented, we can talk about the “collision between rights”, this means that norms of the same category are prescribed and a logical contradiction arises, in this case some regulations of time, place and mode, always and always can be established When the protest exercise is not affected and stipulated in the law.

International standards establish that free vehicular traffic should not automatically have the peace of peaceful meeting, and, therefore, the competent institutions of the State have the duty to design adequate operational plans and procedures to facilitate the exercise of the right of meeting, including the rearrangement of the traffic of pedestrians and vehicles in a certain area. 

Law 1453 of 2011, called “Citizen Security Law”, modified the Criminal Code and gives rise to crimes such as road obstruction that affect public order (article 44), which, in reality, typifies as a criminal type the obstruction of the obstruction of Ways through the use of illicit media. This difference between the name of the crime and the typification of this has resulted in the authorities to stop the people who mobilize, creating a wrong concept between citizens and authorities that public roads obstruction gives prison.

In article 10 of the Citizen Security Law, article 359 of the Criminal Code was modified, which typified the crime of “employment or launch of dangerous substances or objects”, a crime that already existed and was adequate to international standards. Law 1453 established that: the one who uses, sends, remit or launch against a person, building or means of locomotion, or instead of public or open to the public, substance or object of those mentioned in the preceding article, will incur prison of sixteen to sixteen to ninety months, provided that the conduct does not constitute another crime. On the other hand, it has been evidence Which is a dangerous substance?

The judgment of the Constitutional Court C-121 of February 22, 2012 indicates that substance or dangerous object, is any substance, waste or hazardous, radioactive or nuclear residue considered as such by the international treaties ratified by Colombia or current provisions. The United Nations have determined 9 classes of dangerous substances or objects: explosives; gases; flammable liquids; flammable solids; Organic combustible substances and peroxides; toxic (poisonous) and infectious substances; radioactive materials; corrosive; and diverse dangerous goods. According to these Pimpones, they would not constitute a dangerous object, that is, the authority cannot prosecute it to him when he uses it.

Conclusion:

Although the exercise of the right to protest needs a regulation or something that guarantees it, it is also true that with said order the risk of canceling this right is running. According to historical analyzes, protest is one of the main forms of citizen participation in Colombia and therefore does not always plan and more when responding to violent acts such as murders to social leaders. Of course it would be ideal to notify in advance so that all the necessary standards for the protection of protesters and the other population that do not participate are met.

In short, the gaps and controversies of the national regulatory frame People who participate in the demonstrations.