Juan Gonzalez Bertomeu (Instituto Tecnológico Autónomo de México (ITAM)) has posted The Colombian Constitutional Court’s Doctrine on the Substitution of the Constitution (Forthcoming. Richard Albert, Carlos Bernal, and Juliano Zaiden Benvindo, Constitutional Change and Transformation in Latin America, Hart Publishing) on SSRN. Here is the abstract:
The defense of substantive limits on constitutional change has mainly taken two roads. One has been to claim that certain constitutional provisions cannot ever be changed, though they might be restricted or suspended under some conditions. This position (“intangibility”) has a textual basis in the German Basic Law as well as several other constitutions, including a host of Latin American ones. A second road has been to claim that, ex ante, any provision can be amended, though the constitution’s essential structure either cannot or can only be amended following a more restricted procedure. In other words, this position claims that a “normal” process of constitutional change cannot “substitute” or “replace” the constitution. Courts have taken active part in discussions around these limits. The notion of substitution or replacement—or close relatives—has been invoked in such different countries as Ireland, Italy, and India, to mention a few. In Latin America, it has been employed in politically salient decisions in the past fifteen years or so by the Colombian Constitutional Court (the rubric “substitution” is its own). This chapter concerns itself with this notion, and critically analyzes the Court’s invocation of it. The Court has taken pains to present the substitution doctrine on procedural grounds regarding both the Constitution’s amendment provisions and the Court’s authorization to supervise changes, and the chapter reviews that attempt. Yet, the doctrine also deals with substantive questions about the nature and content of the (Colombian) Constitution, the activation and limits of constituent power, and judicial review in a democracy. The chapter engages these questions as well. Given both the Court’s current use of the doctrine and the renewed discussions of constituent power in the region, these are all timely questions.