¿Gobierno de los jueces o gobierno del pueblo? Consultas populares ambientales y activismo judicial regresivo en Colombia
In Colombia, the socio-environmental conflicts have escalated through the phenomenon of judicial expansion on two fronts (Feoli, 2015), via judicialization of politics and via judicial activism. First of all, when competing actors use different legal mechanisms to resolve environmental issues (such...
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| Format: | Article |
| Language: | Spanish |
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2021
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| Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=8409285 |
| Source: | Estudios de derecho, ISSN 0120-1867, Vol. 78, Nº. 172, 2021, pags. 281-312 |
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| Summary: |
In Colombia, the socio-environmental conflicts have escalated through the phenomenon of judicial expansion on two fronts (Feoli, 2015), via judicialization of politics and via judicial activism. First of all, when competing actors use different legal mechanisms to resolve environmental issues (such as the prior control of the constitutionality of referendums, the protective action against judicial decisions, and the nullity of rulings of the Constitutional Court), instead of solving them in scenarios of democratic participation, own of other powers. While the second occurs when the judiciary makes decisions that escape the traditional adjudication of the Law, which in terms of López (2018) is typical of anti-formalism. Within the environmental referendums and from the case study of the regime of environmental competences of territorial entities, this text answers two questions: I) Can the ruling SU-095 of 2018 of the Colombian Constitutional Court be classified as activism? And II) Are the changes in the constitutional precedent of the competence of territorial entities to prohibit extractive activities due to changes in the magistrates of the Constitutional Court? This text concludes that, on the one hand, the ruling SU-095 of 2018 is in fact activism and represents a case of excellency of the government of judges that oppose the government of people, expressed in the referendums done and, on the other, that the changes in the composition of the Constitutional Court did influence the change of precedent in this matter. |
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