Thus, the principle of legality limits the exercise of public authority to the legal system that governs it, “so that the actions of the authorities, the decisions they take and the measures they take are at all times subordinated to what is previously prescribed and regulated by the Constitution and laws”. In other words, the principle of legality limits and subjects the exercise of official authority to the law. This means that the decisions taken by the authorities and the actions they take are at all times subordinated to what was previously provided for by the Constitution and the law. In a dictatorship, the will of the tyrant is done, in a democracy, the will of the law can only be done and exclusively. Gutierrez, S. (2018). Scope of the principle of legality: lex certa, lex praevia, lex scripta, lex stricta. The principle of legality and its relationship with typicality. Passion for law. lpderecho.pe/principio-legalidad-lex-certa-lex-praevia-lex-scripta-lex-stricta-casacion-456-2012-del-santa/. Barber, N.
(2017). The parent? Application of the principle of legality in international criminal law. Nuevo Foro Penal, 13(89), 156-173. Gómez-Ramírez, N. (2016). Analysis of the principles of criminal law. bdigital.ula.ve/storage/pdf/crimi/v32n1/articulo4.pdf Thus, that principle of legality is also intended to govern the exercise of powers both to legislate and to lay down penalties and the conditions for imposing such penalties. That is to say, this principle seeks in this perspective, it is that there is a previous law that regulates the situation or behavior of persons and this before the punishment for behavior, which is also characterized and clearly expressed in the Penal Code of Colombia. It requires the application of the principle of legality in sanction procedures arising from this Code, in the sense of investigating and sanctioning conduct described as defective in the law in force at the time of its implementation. (Clause 4) If “the constitutional principle of legality has a twofold condition on the one hand, it is the guiding principle of the exercise of power and, on the other hand, the guiding principle of the assent of the law. As a guiding principle in the exercise of power, it is understood that there are no powers, duties or actions that public servants may exercise that are not prescribed, defined or established expressly, clearly and precisely by law.
This principle requires that all civil servants always be subject to the legal order established by the Constitution and developed by other laws. “, as stated by the Constitutional Court in its judgment C-710 of 2001, how does it explain that this constitutional principle is no longer respected in the investigation and punishment of justices of the peace, since there is no explicit normative consecration indicating the applicable procedure for investigation and sanction? Could it be that Bill 497 of 1999 is the exception to this constitutional principle? Within the framework of the principle of legality, it acts in conjunction with the principle of the general interest, according to which the private interest must give way to the public or social interest, and with the principle of the separation of powers, according to which the public authority is divided into bodies with specific and limited functions for each of them. In a broader sense, the principle of reservation of rights is the set of provisions whose regulation concerns only parliaments and which must be defined in the form of a law. According to the principle of legality in criminal law: Orduz, C. P. (2010). The principle of legality in Colombian criminal law. Legal warranty criterion, 2(2): 100-107. Article 6 of the Colombian Penal Code, which provides that no one may be brought to justice except in accordance with the laws prior to the act of which he is accused. However, according to the Constitutional Court`s judgment C-710 of 2001, this principle has a twofold condition: on the one hand, it is understood as a guiding principle of the exercise of power and, on the other hand, as a guiding principle of sanctions law. This means that there is a prior law governing the situation or conduct in question, and that the same law specifies precisely the definition and consequences of such a situation or conduct, so that the discretion of the authorities is limited to the maximum. Respect for the principle of legality is therefore a sine qua non for ensuring due process.
If the principle of legality is not respected, due process guarantees are violated. Ávila-Martínez, A., Castellanos-Rodríguez, N. F., & Triana-Agudelo, A. M. (2016). The political theory of Thomas Hobbes and its influence on the construction of the principle of legality in the modern state. Revista Vía Iuris, (20): 149-162. Velásquez, F. V. (2012). The flexibility of the principle of legality and crimes that aggravate humanity.
Cuadernos de derecho penal, (7): 91-105 doi.org/10.22518/20271743.399 The principle of legality and reservation of rights, one of its most characteristic expressions, are among the inevitable predicates of the constitutional state of democratic descent. The central argument in support of this assertion is based on the assumption that legal norms that forcibly regulate social life are legitimate insofar as they derive from the will of representative democratic bodies, a scenario in which, after a process of deliberation in which different sectors that have seats in Congress, have the opportunity to participate, define the rules, which are binding and whose non-compliance entails the sanctions that the same system must provide.