Case Summary and Outcome

The Colombian Constitutional Court rejected three constitutional challenges against law 1801 of 2016, that regulates the exercise of the right to assembly and to demonstrate in public. The Court considered that these laws are a legitimate way of dealing with the tension between freedom of expression and other rights that emerge in the context of public demonstrations. The decision, however, reiterated that these laws must be understood within a broader case-law that is highly protective of freedom of expression and the right to assembly in public.

Facts

Plaintiffs Carlos Esteban Romo Delgado, César Rodríguez Garavito and Sebastián Lalinde Ordoñez questioned, on different but similar grounds, law 1801 of 2016, an act of Congress that regulates public demonstrations in Colombia. In particular, the plaintiffs questioned article 53.1 of Law 1801/2016 that establishes that public demonstrations may take place when they pursue “any other legitimate end”; article 53.2 insofar as it asks from organizers to notify authorities beforehand when a public demonstration will take place; and Article 54 for it permits authorities to refuse authorizations in “exceptional circumstances”. Several other complaints against Law 1801 were considered but discarded by the principle of constitutional *res judicata*. The Court referenced, in that sense, decisions C-233/2017, C-024/1994, C-2011/2017, C-176/2007, and C-281/2017. The state and several state representatives had defended the constitutionality of Law 1801.

Decision Overview

The decision by the Constitutional Court was laid down by judge Gloria Stella Ortiz Delgado. It began by highlighting how the law regulating public demonstrations had experienced a paradigm shift from the 1886 to the 1991 Constitution, for the right of assembly and petition authorities had become—in the newer constitutional text—a fundamental pillar of “a participative and robust democracy” [para. 29]. In particular, judge Ortiz Delgado highlighted how the 1991 Constitution had eliminated the prerogative to discretionally define when a public gathering could be dissolved [para. 30]. The decision also highlighted the inherent link between the right to assembly and freedom of expression [para. 33].

The decision also reiterated the Court’s criteria regarding the need for demonstrations to be “peaceful” in order to be protected [para. 35]. However, the Court also acknowledged that some disturbance to the rights of others is to be expected in the context of the exercise of the right to assembly. The Court noted that the tensions that ensue between the exercise of this right and other rights or legitimate state interests must be weighed through “reasonableness” and “proportionality” analyses [para. 35], and that these analyses should include a duty of authorities to tolerate some degree of impact on the daily life of the community in which public assemblies of citizens take place. In that sense, the Court highlighted how non violence “does not mean … that the public order cannot be affected in any way” [para. 41].

The Court considered that these tensions are “natural” and that the questioned law passed by the Legislature was a way of navigating those tensions [para. 42]. But because the law affects a fundamental right—such as the right to freedom of expression—strict limits apply. The judge Ortiz Delgado, the legislator has the duty, in drafting these laws, to respect the essential core of these rights [para. 43] as described by the Court in previous decisions such as C-024/1994 and C-742/2012.

In analyzing the specific concerns raised by plaintiffs, the Court sided with the State in all three constitutional challenges.

Regarding the first argument on Article 53.1, the Court judged that insofar as the law establishes that public demonstrations may take place when they pursue certain ends that Article 53.1 enumerates and “any other legitimate end”, the law is constitutional. For judge Ortiz Delgado, the legislature chose a wrong path that should not be followed when regulating constitutional rights: in general, the exercise of freedom of expression in the context of a public demonstration may have many ends, and almost all of them should be considered as legitimate. Hence, the Court considered that the legislature had erred when in Article 53 of law 1801 it had stated that “Any person can gather and demonstrate in a public site with the goal of expressing ideas and cultural, political, economic, religious, or social collective interests…”. However, for the Court, the fact that the legislator had added after the quoted text the phrase “or any other legitimate ends” saves the provision [para. 54]. For the Court, the fact that a “legitimate end” is a concept that is fairly easy to determine based on the Court’s own case-law on freedom of expression gives a rather precise content to these words, and thus passes the legality analysis [paras. 59-60]. The Court recalled that non-legitimate ends are to be interpreted in a restrictive fashion, and only include war propaganda, the apology of hate, violence and crime, child pornography and the public and direct instigation to commit crimes [para. 61]. These are fairly precise and narrow categories accepted within Colombian law and that partially flow from the Inter-American standards of human rights.

Regarding the second argument that questioned the law’s command to notify authorities of upcoming public demonstrations, judge Ortiz Delgado also considered the requirement to be constitutional. The Court considered that the provision does not make “spontaneous” demonstrations illegal in and of themselves, and recalled that the Court has already considered a similar requirement constitutional in a previous decision (T-456/1992). The Court recalled, in that sense, that the goal of the notification is to allow public officials to “take the necessary measures to facilitate the exercise of this right without blocking in significant way the normal development of communal life” [para. 64]. The Court found—applying an intermediate level of scrutiny—that the legal requirement of prior notification is “reasonable and proportionate” [para. 74].

Finally, regarding the third argument that questioned Article 54 for it permits authorities to refuse authorizations in “exceptional circumstances and *force majeure*”, the Court also considered the law to be constitutional. For judge Ortiz Delgado, these two criteria are sufficiently precise; an alternative—such as a closed enumeration of conditions that allow administrative officials to refuse a demonstration permit—would be unreasonable [para. 79]. The Court accepted, however, that officials invoking these reasons must motivate their decisions and explain why they apply to a particular case at hand [para. 80].