Judicial review of constitutional amendments in Colombia: a political and historical perspective, 1955–2016

ABSTRACT

The Colombian Constitutional Court is widely known for being one of the emblematic and activist Courts representing the New-constitutionalism of the Global South, and also for the judicial review of the constitutional amendments under the ‘constitutional replacement doctrine’ (substitution doctrine). The Court adopted the substitution doctrine since its decision C-551/2003, in a time that coincides with the global expansion of the judicial review of constitutional amendments. However, it is far less known that, in Colombia, the debate about the judicial review of the constitutional amendments commenced several decades before that global expansion. This article intends to reconstruct the judicial review path of the constitutional amendments, and to show the interdependence between the political context and the doctrines of both the Supreme Court (1955–1991) and the Constitutional Court (1992–2016). The article examines this interdependence to contribute to a better understanding of the role of the Legislature, the Executive and the Judiciary in the construction of legal doctrines, such as the supremacy of the Constitution, the principle of separation of powers, the intangibility of constitutional clauses or the power of constitutional reform in the complex political context of a South American country. In sum, this article seeks to present how the judicial review path of the constitutional amendments in Colombia began long before the ‘expansion’ of that phenomenon at a global level, to show the interdependence between Law and Politics on that path, and to highlight the different Supreme Court and the Constitutional Court judicial activism in this topic since 1955 to the present.

KEYWORDS:

• Judicial review of constitutional amendments
• constitutional history of judicial review
• judicial review in the global south
• courts and politics
• constitutional replacement doctrine
• political history of judicial review
• unconstitutional constitutional amendments

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Corrigendum

Disclosure statement

No potential conflict of interest was reported by the author.

ORCID

Mario Alberto Cajas-Sarria http://orcid.org/0000-0003-4070-0135

Notes

1 It is important to remark that the German Federal Constitutional Court expressed in 1951 that there are ‘implicit substantive limits on constitutional amendments’, even though, it did not judge a constitutional amendment at that time. See: Kemal Gözler, Judicial Review of Constitutional Amendments, A comparative Study (Ekin Press 2008).

2 On the spread of the judicial review of constitutional amendments, see: Yaniv Roznai, ‘Unconstitutional Constitutional Amendments, The Migration and Success of a Constitutional Idea’ (2013) 61 American Journal of Comparative Law 657; Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Process (Oxford University Press 2017). Also see: Rosalind Dixon ‘Transnational Constitutionalism and Unconstitutional Constitutional Amendments’ (2011) University of Chicago Public Law and Legal Theory Working Paper 349. Gabor Halmai ‘Unconstitutional Amendments: Constitutional Courts as Guardians of the Constitution?’ (2012) 19 Constellations 182. Richard Albert also presents a global ‘state of the art’ on constitutional amendments in his introductory chapter to The Foundations and Traditions of Constitutional Amendment (edited by Richard Albert, Hart Publishing 2017) (Forthcoming) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2892895> accessed 10 January 2017.

3 On the Constitutionalism and judicial activism from the Global South in a comparative perspective, see: Daniel Bonilla (ed.), Constitutionalism of the Global South: The Activist Tribunals of India, South Africa, and Colombia (Cambridge University Press 2013); Javier Couso and others (eds.), Cultures of Legality: Judicialization and Political Activism in Latin America (Cambridge University Press 2010); Rachel Sieder and others (eds.), Judicialization of Politics in Latin America (Palgrave 2005); Juan F. González- Bertomeu and Roberto Gargarella (eds.) (Routledge 2016); Julio Ríos-Figueroa, Constitutional Courts as Mediators, Armed Conflict Civil – Military Relations, and the Rule of Law in Latin America (Cambridge University Press 2016), and Rosalind Dixon and Tom Ginsburg (eds.), Comparative Constitutional Law in Latin America (Elgar 2017). On the role of judicial review and democracy in the Global South see: David Landau, ‘A dynamic theory of Judicial Role’ (2014) 55 B.C.L. REV. On the New Constitutionalism see: Ran Hirschl, Towards Juristocracy, The origins and consequences of the New Constitutionalism (Harvard University Press 2004); Lisa Hilbink: ‘Assessing the New Constitutionalism’ (2008), 40 Comparative Politics 2; Detlef Nolte and Almut Schilling-Vacaflor (eds.), New Constitutionalism in Latin America: Promises and Practices (Ashgate 2012); A theoretical perspective on the ‘New Constitutionalism’ see: Miguel Carbonell and Leonardo García Jaramillo (eds), El Canon Neoconstitucional [The New Constitutional Canon] (Universidad Externado de Colombia 2010). For an overview of the leading cases and the activist role of the Colombian Constitutional Court, see: Manuel José Cepeda and David Landau, Colombian Constitutional Law: Leading Cases (Oxford University Press 2017).

4 On the importance of interdisciplinary approaches to study in Comparative Constitutional Law, see: Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law (Oxford University Press 2014).

5 Ronald Kahn and Ken I. Kersch, The Supreme Court and American Political Development (University of Kansas 2006) 443–444.

6 Ronald Kahn and Ken I. Kersch, The Supreme Court and American Political Development (University of Kansas 2006).

7 Article 41, Legislative Act [Acto Legislativo] 03, 1910.

8 See: Mario Alberto Cajas Sarria, La historia de la Corte Suprema de Justicia de Colombia, 1886–1991, Tomo I [The History of the Supreme Court of Colombia, 1886–1991, Vol. I] (Universidad de los Andes and Universidad Icesi 2015).

9 ‘Rojas Pinilla’s takeover was greeted by Colombians with relief […] Darío Echandía provided the truest characterization of the military takeover. He termed it a “coup by public opinion”, sprung from the generalised understanding that there could be no end to the Violencia while Laureano Gómez remained in office’. See: James D. Henderson, Modernization in Colombia: The Laureano Gómez Years, 1899–1965 (University Press of Florida 2001).

10 Antonio Costa Pinto, The Corporatist Wave in Europe (Routledge 2017).

11 ‘[…] Rojas had rebuked circuit court Judge Rafael Rocha for overturning the conviction of Felipe Echavarría, the man charged with conspiring to murder Rojas before the June 13 coup, and several other men said to have conspired along with Echavarría. The president went on to criticize members of the judiciary as partisan and corrupt, strong words that caused all members of Colombia’s Supreme Court to resign […]’. See: Henderson (n 9).

12 See: Cajas (n 8).

13 Supreme Court of Colombia, Decision of 28 October 1955. Opinion of Justice: Luis Enrique Cuervo, Gaceta Judicial [Judicial Gazette] 2159.

14 Supreme Court of Colombia, Decision of 30 January 1956. Opinion of Justice: Ignacio Gómez Posse, Gaceta Judicial 2163/2164.

15 See: Cajas (n 8)

16 El Tiempo, (Bogotá, 18 October 1976).

17 During more than a year, there were confusing and heated debates in both, the House of Representatives and the Senate. By the end of 1977, a number of sectors, especially from the social movements, leftist groups and legal experts, warned that the ‘Little Constituent’ would have as one of its essential purposes the adoption of rules that will strengthen the repression at the expense of the citizens' rights and freedoms with the argument of fighting suitable and effectively against crime. In addition, it was clear that the Lopez administration sought a bipartisan amendment to renovate the National Front without any participation of the meagre political opposition, primarily from the left-wing that had proposed a ‘Popular and Democratic Constituent.’

18 See: El Tiempo, (Bogotá, November 18, 1977).

19 Supreme Court of Colombia, Full Chamber, Decision of May 5, 1978. Opinion of Justice José María Velasco Guerrero, Gaceta Judicial 2397- 104.

20 Supreme Court of Colombia, Full Chamber, Decision of 5 May 1978.

21 See: Mario Alberto Cajas Sarria. El control judicial a la reforma constitucional: Colombia, 1910–2007 [The Judicial Review of Constitutional Amendments: Colombia, 1910–2007] (Universidad Icesi 2008).

22 The liberalism spokesman, Carlos Lemos also said: ‘The Supreme Court has opened the doors to the coup d’état, when declaring in an unusual ruling, that the Congress cannot amend the Constitution […] It is a monstrous decision […]’. See: Mario Alberto Cajas Sarria, La historia de la Corte Suprema de Justicia de Colombia, 1886–1991, Tomo II [The History of the Supreme Court of Colombia, 1886–1991, Vol. II] (Universidad de los Andes and Universidad Icesi 2015).

23 See: Article 61, Legislative Act 01, 1979.

24 See: Supreme Court of Colombia, Full Chamber, Decision No. 7 of 1981, Opinion of Justice Fernando Uribe Restrepo, Gaceta Judicial 2405.

25 Supreme Court of Colombia, Decision No. 7 of 1981, Opinion of Justice Fernando Uribe Restrepo, Gaceta Judicial 2405.

26 See: Cajas (n 22).

27 For example, the Court has intervened in cases of severe violations of socioeconomic rights, adjudicating under doctrines of progressive constitutionalism. As Carlos Bernal Pulido synthetised: ‘Colombian Constitutional Court has issued concrete commands to the Congress and the government requiring the enactment of laws and their enforcement by means of policies and positive administrative actions with the purpose of, e.g., guaranteeing decent living conditions of prison inmates (judgment SU-995/1999), a yearly increase of the salaries of public employees according to the official inflation rate (judgments C-1433/2000, C-1064/2001, C-1017/2003, and C-931/2004), the rights to housing, education, and health of people displaced from the countryside to cities as a result of the activities of the guerrilla and paramilitary groups (judgment T-025/2004); protecting the right to housing against certain unfair rules governing mortgages rates (judgments C-383/1999, C-700/1999, C-747/1999, and C-995/1999); and enhancing the health system by having it include certain necessary minimal treatments and medications (judgment T-760/2008)’. Carlos Bernal Pulido, ‘Unconstitutional Constitutional Amendments in the case study of Colombia: An analysis of the justification and meaning of the constitutional replacement doctrine’ [2013]11 International Journal of Constitutional Law 339. For an analysis on the role of the Court in the adjudication of social rights see: ‘The Reality of Social Rights Enforcement’ [2012] 53 HLIJ 190. A comparative analysis on social rights including Colombia in: Katharine G. Young: Constituting Economic and Social Rights (Oxford University Press 2012). On the judicial activism of the Court also see: César Rodríguez Garavito: ‘Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America’, [2011] 89 Texas Law Review 1669.

28 See: Constitution of Colombia, Art. 241.

29 See: Cajas (n 21).

30 See: Joan Boesten: ‘Between democratic security and democratic legality. Constitutional Politics and Presidential Reelection in Colombia’ [2014] 5 Revista Jurídica Precedente 13.

31 On The Plan Colombia, see: Carl Boggs (ed.): Master of Wars, Militarism and Blowback in the Era of American Empire (Routledge 2003).

32 The Referendum issues were: Freezing public workers' salaries, State pensions, Regional auditing offices, Funding education and healthcare, Destination of oil revenues, Congressional voting Numbers of congressmen, Role of congress, and Government funding of regional projects. See: ‘Poll Blows for Colombia President’, BBC News: http://news.bbc.co.uk/2/hi/americas/3216395.stm accessed January 10, 2017.

33 See: Constitutional Court of Colombia, Decision C-551, July 9, 2003, Opinion of Justice Eduardo Montealegre Lynett.

34 Ibid.

35 On the ‘constitutional replacement doctrine’ by the Court see: Carlos Bernal Pulido (n 31); Vicente Benítez, Constitución popular, no judicial, [A popular Constitution, not a Judicial one] (Universidad de la Sabana 2014). Also: Gonzalo Ramírez, ‘The Unconstitutionality of Constitutional Amendments in Colombia: ‘The Tension Between Majoritarian Democracy and Constitutional Democracy’, in: Thomas Bustamente and Bernardo Gonçalves (eds) Democratizing Constitutional Law: Perspectives in Legal Theory and the Legitimacy of Constitutionalism (Springer 2016). In a comparative perspective see also: Joel Colon Rios: ‘Beyond Parliamentary Sovereignty and Judicial Supremacy: The Doctrine of Implicit Limits to Constitutional Reform in Latin America’ (2013) 44 VUWLR 521. For a comparative perspective on the constitutional amendments that erode the democracy and some responses to the problem see: David Landau, ‘Abusive Constitutionalism’ (2013) 47 U.C. DAVIS L. REV. 189.

36 An analysis on the context of the decision in: Landau, David. Doctoral dissertation, Harvard University, Graduate School of Arts & Sciences https://dash.harvard.edu/handle/1/14226088 accessed December 2, 2016.

37 Uribe won the Presidential elections with 62.23%, more than 7 million votes, the highest voting rate for a single candidate to the Presidency ever registered in the history of the Country.

38 See: Dissent of Justice Jaime Córdoba Triviño to decision C-1040 of 2005, Constitutional Court of Colombia.

39 See: ‘Colombiás ‘parapolitics’ scandals casts shadow over president’, The Guardian (London, 23 April 2008). <https://www.theguardian.com/world/2008/apr/23/colombia> accessed 28 December 2016.

40 These armed groups were responsible for massacres, serious violations to human rights, land dispossession, and forced displacement. Even several members of Congress were convicted for having benefited from these paramilitary groups, and getting to the Senate and the House of Representatives with the financial and armed support of the paramilitaries.

41 ‘More former Uribe aides charged for wiretapping Colombiás Supreme Court’, Colombia Reports (Bogotá 21 January 2016). <http://colombiareports.com/more-uribe-aides-charged-with-wiretapping-supreme-court/> accessed 29 December 2016.

42 See: ‘Uribe possible third term and conflict resolution in Colombia’, International Crisis Group, Latin American Report No. 31, 18 December 2009. <https://d2071andvip0wj.cloudfront.net/31-uribe-s-possible-third-term-and-conflict-resolution-in-colombia.pdf>

43 On the controversial nominations as well on the judicial independence under the Uribe government see: Javier Rebolledo, ‘Expertos y seguidores: Poder nominador del presidente, burocracia y capacidad del estado colombiano, 2002–2010 [‘Experts and Fans. The Presidential Nomitation Power, Bureaucracy, and the Colombian State Capacity, 2002–2010’], [2010] 15 Pap. Polit 411. Also see: Helena Durán Crane, ‘¿Una Corte de bolsillo? Reelección presidencial e independencia judicial. Un contraste entre las consecuencias institucionales de la reelección presidencial en Colombia y la percepción de la opinión pública tras la elección de la tercera Corte Constitucional’ [An Independent Court? Presidential Reelection and Judicial Independence: a Contrast Between the Institutional Implications of the Presidential Reelection in Colombia and the Perception of Public Opinion After the Election of the Third Constitutional Court] [2014] 32 Revista de Derecho Público 4.

44 The dissenter Justices: Jorge Pretelt and Mauricio González were nominees to the Court by President Uribe.

45 Constitutional Court, Decision of 26 February 2010, Opinion of Justice: Humberto Sierra Porto.

46 ‘When the Constitutional Court declared unconstitutional a potential third term in the Presidency in 2010, it manifestly displayed its own institutional independence. President Álvaro Uribe occupied the mandate with charisma and a sense of mission that led him in many instances to test the borders of constitutional limits. Part of his political program as well as his political persona displayed distaste for limits on popular elected officials. Together with the wide-spread public support he and his Democratic Security enjoyed, his constitutional reform agenda was posed as a threat to the integrity of the 1991 Constitution project, of which the Constitutional Court was an integral part. If we add to these factors the generically weak conditions of Colombia’s state and political institutions, the display of the Court’s institutional independence becomes even more remarkable’, Jan Boesten (2014) Revista Jurídica Precedente 34.

47 See: <http://wsp.presidencia.gov.co/Normativa/actoslegislativos/Documents/2012/ACTO%20LEGISLATIVO%20N%C2%B0%2001%20DEL%2031%20DE%20JULIO%20DE%202012.pdf> accessed 15 December 2016.

48 Declarations of Alias: ‘Pablo Catatumbo’, negotiator from the Farc side in La Habana, ‘Farc rechazan el marco para la paz’, El Espectador, 6 August 2013. <http://www.elespectador.com/noticias/paz/farc-rechazan-el-marco-paz-articulo-438326> accessed 10 December 2016.

49 Constitutional Court of Colombia, Decision of 28 August 2013. Opinion of Justice Jorge Pretelt.

50 For an analysis of the decision see: Kai Ambos and others: Justicia de Transición y Constitución: análisis a la sentencia C-579 de 2003 de la Corte Constitucional (Temis 2014).

51 Declaration of the Delegation of Farc- EP, ‘No more legal Treats to Peace’, 12 August 2014: <http://prensarural.org/spip/spip.php?article14810> accessed 26 December 2016.

52 Later, in 2014 the Court declared constitutional the provision #3 of Legislative Act 01/ 2012, on the possibility for the former members of illegal groups to participate in politics after serving their sentence. According to the Court, the offences that acquire the connotation of crimes against humanity and Genocide committed systematically must be excluded from the definition of ‘Related political crime’ in future statutory legislation on the peace agreements. Thus, that any found guilty of atrocious war crimes cannot hold public office. On the constitutional replacement doctrine, the Court stated that this restriction did not substitute the Constitution because it didńt affect the democratic and participatory principles of the Constitution. See: Constitutional Court, Decision C-577 of 6 August 2014. Opinion of Justice Martha Victoria Sáchica.

53 See: Mario Alberto Cajas Sarria, ‘The Unconstitutional Constitutional Amendment Doctrine and the Reform of the Judiciary in Colombia’ [2016] International Journal of Constitutional Law, Blog, 1 September 2016, at: http://www.iconnectblog.com/2016/09/the-unconstitutional-constitutional-amendment-doctrine-and-the-reform-of-the-judiciary-in-colombia/ accessed December 23, 2016.

54 Some congressmen threatened to denounce the Justices of the Constitutional Court for the crime of malfeasance. See: ‘Amenaza del Congreso a la Corte Constitucional’ [Congress threat to the Constitutional Court], Semana, 8 June 2016: <http://www.semana.com/nacion/articulo/consejo-superior-congreso-y-corte-constitucional-en-disputa-por-fallo/476806> accessed 28 December 2016.

55 See: ‘No se puede modificar por acto legislativo la estructura esencial de la carta política’ [‘The essential structure of the Constitution cannot be amended by legislative act’] El Heraldo, 16 July 2016 <http://www.elheraldo.co/politica/no-se-puede-modificar-por-acto-legislativo-la-estructura-esencial-de-la-carta-politica> accessed 28 December 2016.

56 See: Mario Alberto Cajas: ‘The Unconstitutional Constitutional Amendment Doctrine and the Reform of the Judiciary in Colombia’, International Journal of Constitutional Law Blog, 1 September 2016, ibid.

57 See critical opinions in influent newspapers: El Espectador: ‘Jugando con fuego’, [‘Playing with Fire’] 7 June 2016: <http://www.elespectador.com/opinion/jugando-fuego>. Also: ‘Los magistrados intocables’ (The Untouchable Justices), in Semana, 4 June 2016: <http://www.semana.com/nacion/articulo/judicatura-revive-y- plantea-debate-por-reforma-a-la-justicia/476327> accessed 10 December 2016.

58 See: Manuel José Cepeda Espinoza, ‘The peace process and the Constitution: Constitution making as a peace making’. Blog of the IACL, AIDC, 4 July 2016: <https://iacl-aidc-blog.org/2016/07/04/manuel-jose-cepeda-espinosa-the-peace-process-and-the-constitution-constitution-making-as-peace-making/> accessed 19 December 2016.

59 For instance, even in a press report dated 13 January 2016, they reiterated it: ‘Farc insist on a constituent to endorse peace agreements’. See: El Espectador: <http://www.elespectador.com/noticias/paz/farc-insisten-constituyente-refrendar-acuerdos-de-paz-articulo-610541>

60 See: Martha Maya: ‘Colombian Peace Hangs on a Very Special Plebiscite’. 17 September 2016: <https://iacl-aidc-blog.org/2016/09/17/analysis-colombian-peace-hangs-on-a-very-special-plebiscite/> accessed 21 December 2016.

61 ‘Colombia referendum: voters reject peace deal with Farc guerrillas’. The Guardian, 3 October 2016: <https://www.theguardian.com/world/2016/oct/02/colombia-referendum-rejects-peace-deal-with-farc> accessed 15 December 2016.

62 See: ‘Colombian Congress ratifies new Farc Peace accord’: BBC News, 1 December 2016: <http://www.bbc.com/news/world-latin-america-38165752> accessed 19 December 2016.

63 On the role of the Court in the peace process, see: David E. Landau, ‘Constitutional implications of Colombiás judicialized peace process’, 29 July 2016: <http://www.constitutionnet.org/es/news/constitutional-implications-colombias-judicialized-peace-process> accessed 30 November 2016.

64 See: ‘Colombian Court gives big boost to peace deal with FARC rebels’, The Washington Post, 31 December 2016 <https://www.washingtonpost.com/world/the_americas/court-gives-big-boost-to-colombias-peace-deal-with-farc-rebels/2016/12/13/cc5d8c92-c07c-11e6-a52b-a0a126eaf9f7_story.html?utm_term=.2abc4db436a5> accessed 29 December 2016.

65 See: Constitutional Court of Colombia, Decision C-699 of 13 December 2016. Opinion of Justice María Victoria Calle Correa.

66 See: Ibid.

67 ‘Had the judges ruled against the government’s plan, the peace deal would have had to proceed through Colombia’s Congress along a slower, traditional legislative path. Santos insisted that the cease-fire with the FARC was too fragile to wait that long and said the peace deal would be at risk of falling apart or getting bogged down in lengthy congressional debates’. See: ‘Colombian Court gives big boost to peace deal with FARC rebels’, The Washington Post, 13 December 2016.

68 See: ‘Colombia approves amnesty agreed in Farc peace deal’, BBC: <http://www.bbc.com/news/world-latin-america-38455493> accessed 30 December 2016.

69 For instance, Rodrigo Uprimny said that the decision was a ‘tragic case’, referring to any decision sacrificing a significant value. He pointed out that the Court's decision produced conflicting feelings, because while those who supported peace considered it was crucial to move towards the implementation of the FA, there remained the dismay that the Court had considered that a new popular endorsement of the new signed agreement was not necessary. See: Rodrigo Uprimny: ‘Refrendación Progresiva III’ [‘Progressive endorsement III]’. <http://www.elespectador.com/opinion/transiciones-y-paradojas> accessed 28 December 2016. Similarly, Rodolfo Arango suggested that the decision had not successfully drawn the tensions between participatory democracy demanded by the FA, and the role of constitutional justice to resolve a controversy that had divided the Country in the polls. See: Rodolfo Arango: ‘Transiciones y paradojas’ (Transitions and Paradoxes), El Espectador, 25 December 2016: <http://www.elespectador.com/opinion/transiciones-y-paradojas> accessed 27 December 2016.

70 A fifth new justice was elected by the Senate on November, 2016.

Additional information

Funding

This article forms part of the research project: ‘25 years of the Constitution: balances and perspectives on the building of the Social State of Law (CA 0313233)’ financed by Icesi University, Cali, Colombia.