Monday, March 1, 2010

More on the Colombian Constitutional Court ‘No’ to Presidential Re-election

As Martín’s earlier post explains, the Colombian Constitutional Court has just struck down a law calling for a referendum to amend the Constitution of 1991 in order to allow for a second Presidential re-election. The basis of the decision was announced by the President of the Constitutional Court in a press conference, but I understand the complete text of the opinion will be issued in a few months (the text of the press release can be found here, and a video of the press conference, here). In a way, this decision should not be a surprise, since it is consistent with the recent jurisprudence of the Constitutional Court. However, because some of the members of the Court had been recently appointed by the current government, many of us have been surprised (in a good way) by the Court’s independence.

I would like to make a few comments here about the doctrine of “constitutional substitution” (sustitución constitucional), developed by the Colombian Constitutional Court in 2003 (Sentencia C-551/03) as a way of asserting its jurisdiction to declare ‘unconstitutional’ a constitutional amendment on the basis of its content (which I will then connect to the recent decision on Presidential re-election). The doctrine is a very interesting (and I think mostly successful) effort to overcome the fact that the Constitution of 1991 contains a provision that explicitly limits the Court’s jurisdiction to review proposals for constitutional amendments to procedural or formal errors, and the fact that the constitutional text does not place (like the German and many other constitutions) any clauses outside the scope of the amending power (e.g. eternity or entrenchment clauses).
How did the court overcome these limits to its review powers? In a nutshell, the court’s argument in the 2003 decision was the following. It is true that, given the lack of eternity or entrenchment clauses, any provision of the Constitution of 1991 can be amended or repealed. However, this does not mean that the ordinary amendment process can be used to adopt a new and different constitution, as opposed to merely amending the already existing one. The power to adopt a new constitution, the court maintained, rests with the people as the subject of constituent power, a power that might be exercised through extraordinary mechanisms like a Constituent Assembly, but never through the ordinary amendment process. If government attempts to use the amendment process to modify the constitution in a way that amounts to substituting it with a new one, it is the duty of the Court to declare that government was acting ultra vires, that it was exceeding its jurisdiction (competencia).

The Court has not explained in detail what kind of amendment would amount to the adoption of a new constitution, but it has given some hints. For example, in a 2005 case (Sentencia C-1040/05), the court declared a proposed amendment unconstitutional because it was contrary to the principle of the separation of powers. Since the separation of powers is one of the basic principles in which the Constitution of 1991 rests, the court reasoned, amending the Constitution in a way that is inconsistent with this principle amounts to a creating a new Constitution, something that can only be done by 'the people'.

In that same case, however, the court upheld an amendment that allowed President Alvaro Uribe to run for a second term. The court also suggested that the constitutionality of the proposed amendment depended in an important way on the fact that it was only allowing for a single re-election (e.g. allowing a President to run for only a second term).

As was noted in Martín’s post, Uribe’s and his follower’s attempt to call for a constitutional referendum in order to allow Presidents to run for a third term was struck down on different grounds, including ‘strictly’ procedural grounds. Nevertheless, the court seemed to have made clear that, even if the amendment process had been fully respected, a constitutional amendment to allow for a President to run for a third term would be unconstitutional in light of the doctrine of “constitutional substitution”. In this respect, the press release announcing the decision reads: “…The Court has found that [the proposed amendment] violates part of the structure of the Political Constitution, such as the principle of separation of powers, its system of checks and balances, the rule regarding the alternation in power…, the right to equality and the general and abstract character of the laws”.


  1. Joel, excellent post! I am very curious about the decision. I see why they may say that allowing for a third consecutive terms goes against the doctrine of separation of powers. However, that is not an obvious conclusion. Perhaps they have Pettit's republican conception of the rule of law in mind?

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