Judicial Review Of Constitutional Amendments in Colombia. Substitution Of The Constitution, Competence Vices And Judicial Activism (2003-2010)

      Аннотация: Between 2003 and 2009, the Colombian Constitutional Court attempted to define the contours of the doctrine of ‘constitutional substitution’ and to define the methodology for the Court to apply every time it reviewed a constitutional amendment. However, the Court’s decision C-588 of 2009 diminished the internal coherence of the doctrine, raised the tier of scrutiny of the substitution test and magnified the scope of the Court’s jurisdiction. With this opinion, the Court shed virtually all limitations on reviewing the substantive aspects of a constitutional amendment, and instead revised the challenged reform as if it were an inferior provision, a practice against which the Court itself had warned since 2003. Therefore, under the theory of the “substitution” of the Charter, the Court significantly broadened the scope of its jurisdiction to review constitutional amendments, overruling the traditional reading of article 241 of the Charter. Given the political context at the time, these rulings raised intriguing questions regarding the limits of judicial review of constitutional amendments in Colombia and, consequently, the limits of the secondary constituent in amending the Charter.

Ключевые слова: judicial activism, judicial review, Constitutional Amendments, Substitution of the Constitution