Implementing the “Substitution Doctrine” as a Method for Protecting Constitutional Democracy Against Majoritarian Democracy

As I previously said the “substitution of the Constitution doctrine” was introduced in Colombia in the landmark judgment C-551/2003, where the Court says on para­graph 37 that:

The derivative Constituent power does not have the power to destroy the Constitution.

Similarly, in paragraph 39 of this decision the Constitutional Court stated that, “the amendment power, as a constituted power, has material limitations, as the power to amend the Constitution does not contain the possibility of repealing, sub­verting or replacing that constitution in its entirety”. Furthermore, it is also said that, “the Constitutional Court must consider whether or not the Charter was replaced by another, for which one needs to take into account the principles and values that the Constitution contains, and those arising from the constitutional block [as we explained before, with special regards to human rights treaties and labour treaties]”.

The use of the doctrine of substitution in Colombia, in more than 10 years of existence, is limited and was used only five times, in more than 30 constitutional amendments to the 1991 Constitution. I will explain the decisions briefly:

1. C - 1040 of2005, that undertook judicial review of the proposal of Constitutional Amendment Legislative Act No.

2. C- 588 of 2009, that adjudicated on the Legislative Act Number 01 of 2008, that amended Article 125 of the Constitution, establishing the possibility that provi­sional and commissioned employees could be named directly without public competition. The Court ruled that the decision replaced the essential principles of merit, civil service and equality, because it limits the possibility that anyone interested in these posts could participate in the same conditions as those provi­sional and commissioned employees.

3. C- 141 of 2010, that reviewed the constitutionality of the project of law 1353 of 2009, which called for a referendum to amend the Article 197 of the CP and permit the re-election of President for a second period, allowing him to stay 12 years in the post. The Court ruled that the amendment was unconstitutional not only because the procedural defects in the passage of the referendum, but also because if the referendum is approved the Constitutional principles of democ­racy, separation of powers, checks and balances, equality and alternation of power would be replaced.

4. C - 249 of 2012 that declared unconstitutional the Legislative Act No. 4 of 2011, which, like Judgment C-588 of 2009, established advantages scores for provi­sional and commissioned employees, because the amendment replaced the essential principles of merit, equity and administrative career.

5. C - 1056 of 2012, which declares unconstitutional the Legislative Act No. 1 of 2011, that amended article 183 of the Constitution in order derogate the provi­sion that establishes the loss of investiture for congressmen who violate the regime of inabilities and incompatibilities in deliberations about legislative enactmens. In this case the Court stated that such reform changed axial princi­ples such as the prevalence of general interest, the separation of the powers, the ability of the voters to control the Congressmen, the common good, the public morality, the incompatibility and illegibility regime itself and the rigidity of the amendment process.

Of these five decisions, two had a critical and direct political impact: Decision C-1040 of 2005, which allowed the President to be re-elected for one period, and Decision C-141 of 2010, which prohibited the president from being re-elected a second time. That reform would allow a two term re-election that could redesign the whole structure of the Constitution because a Constitution that was originally designed for a 4 years President’s term would accommodate periods of 12 years. Such amendment would produce an imbalance between the powers and affect what Sartori calls the “constitutional engineering”.

As we said before this decision is the most important judgement that the Court has taken in political matters, and illustrates the independence and autonomy of the Constitutional Court with regards to the executive and its majorities in Congress. This judgment may be comparable in importance to the cases decided by the Supreme Court of India in the mid-1970s - Minerva Mills Ltd. vs. Union of India in 1974 and Indira Nehru Gandhi vs. Raj Narain in 1975 -, decisions that had pro­tected the constitutional democracy in that country.

Thus it was evident in this case that the doctrine of the substitution of the Constitution, introduced by the constitutional jurisprudence through the thesis of the lack of competence of the reformer body can become the last resort in the defence of the constitutional democracy and in the prevention from the use of con­stitutional amendment to remove the pillars of material idea of Constitution.

Although the Colombian Constitutional Court has so far not established a detailed list of principles and values inherent to the Constitution that cannot be replaced, the Court has begun, in the resolution of specific cases, to establish which are such fundamental elements.

Moreover, it should be noted that constitutional case law has been establishing a series of criteria of rationality and weighting - a “replacement” or “substitution test” - to determine when the amendment power is used to change or eliminate the basic structure of the Constitution. Upon the introduction of these criteria highlights the Judgment C-1200 of 2003, C-970 of 2004, C-1040 of 2005, C-588 of 2009 and C - 574 of 2011 as explained below:

1. In the Judgment C-1200 of 2003, which reviewed the Legislative Act 03 of 2002, that gave powers to the President in criminal and disciplinary matters, the Court established some parameters for the study of constitutional amendments. In that judgment it was stated that “constitutional judge can go to the various methods of interpretation based on objective benchmarks, such as the back­ground of the amendment. It can also go to the block of constitutionality, strictly speaking, to delineate the defining profile of the original Constitution and the fundamental constitutional principles and their realization throughout the origi­nal Constitution, without authorizing this Court to compare the reform with the content of a specific principle or rule of constitutional law”.

2. In the judgment C-970 of 2004, that reviewed transitional Article 4 of Legislative Act No. 3 of 2003, the Court introduced the first elements of the “Test or meth­odology of substitution”. First (i) the Court established that “the Court is simply stating the general elements that a particular institution has in contemporary constitutionalism, but particularly a defining element as it is configured in the Colombian Constitution and, therefore, it is part of its identity”. Secondly (ii) the Court must examine the act under review to establish, what is its legal effect, in relation to the identifi ed defi ning elements of the Constitution ”.

3. In the ruling C-1040 of 2005, which revised Legislative Act No. 2 of 2004, which, as we explained previously, gave the opportunity to the President to be re-elected only once, it was established the “Test of the seven steps”, according to which the Constitutional Court must do the following: (i) state very clearly what item is replaced; (ii) draw from multiple legal regulations which are the specificities of such element in the Constitution; (iii) show why that element is essential and defining for the identity of the Constitution fully considered; (iv) verify whether that defining element of the 1991 Constitution is irreducible to a section of the Constitution; (v) verify whether that essential element doesn’t constitute an untouchable material limit on the power of reform, in order to pre­vent the court from adjudication on a something supposedly intangible; (vi) verify that the essential element was replaced by another, and not simply modi­fied, affected, violated or annoyed; and finally (vii) verify if the new defining essential element of the Constitution is fully opposite or different to the point that is incompatible with the defining elements of the identity of the previous Constitution.

4. The Judgment C-588 of 2009, that reviewed the Legislative Act 01 of 2008, which stated that provisional employees could remain directly in their positions for a period of time without any other requirement of meritocracy. In this deci­sion the Court introduced the so-called “effectiveness test”, according to which it has to check three aspects: (i) that the reform is not apparent, in the sense that the article to be amended does not remain the same, because if it happen to be identical then there has not been any constitutional reform, but merely an appear­ance of it. Secondly, (ii) that the amendment does not established an ad hoc or particular preference that favour or benefit one person or group of people; and thirdly (iii) that it does not allow any tacit constitutional amendment, that allows an article or a part of the Constitution to be replaced indirectly.

5. Judgment C-574 of 2011, that made the judicial review of Legislative Act No. 2 of 2009, which amended Article 49 of the Constitution on the right to health of “the size and consumption of narcotic drugs or psychotropic substances”. Despite of the fact that the Court declared itself incompetent to rule on this case, it settled three principles that the Court must continue to carry out this kind of control. First (i) a major premise where the inherent element or principle or value of the block of constitutionality is determined irreplaceable; second (ii) a minor premise where the principle or new value entered is established and replaced; and thirdly (iii) a premise of synthesis in which the Court compares the beginning or irreplaceable value that is introduced to prove they are “opposed or integrally different”, in a way that is incompatible with the axial or inherent element.

In the same decision, it is said that in the major premise, the Court must under­take a transversal and comprehensive reading of the Constitution, to determine whether the item being replaced is set as a structural or axial element, and whether this essential element can be reflected or contained in several articles of the Constitution. Also, it must check if the constitutional element could be determined through historical or systematic interpretation of the Constitution. Finally it ruled that to build this premise it is necessary for the applicant in its action and for the Court in its decision: (i) to state very clearly what that item is; (ii) to draw it from multiple policies regarding their specificities in the context of the enactment of the 1991 Constitution, and (iii) to show why it is essential and defining for the identity of the Constitution as a whole.

Despite the advantages of the substitution of the Constitution doctrine to protect the so-called constitutional democracy against the majoritarian democracy, the introduction of this doctrine in the Colombian constitutional case law has faced some criticisms that can be classified into two types. First, there was (i) a criticism related to the adoption of this thesis itself, and secondly (ii) some criticisms that have to do with the difficulties that can lead to the implementation of the doctrine in constitutional jurisprudence.

With regards to the criticism related of the adoption of the doctrine of substitu­tion, some authors consider that from a formal point of view the Court cannot carry out this type of review because there are no clauses in the 1991 Constitution expressly establishing this competence. This objection has been pointed out for example in the dissenting opinion of Judge Humberto Sierra Porto in the decision C-970 of 2004, who argued that, “the Constitutional Court has no jurisdiction to review constitutional amendments different from those established in Article 241.1 of the Constitution. This competence is restricted to errors of form or procedure; all others, whether they are material or competence vices are excluded from the review that corresponds to the Court”.

On the other hand, criticisms related to the implementation and development of the substitution doctrine have focused on two aspects: firstly (i), on the difficulty to identify when an amendment to the Constitution can be considered a substitution of the Constitution, and what items or axial values of the Constitution cannot be replaced and to what extent, and, secondly (ii), on the wide discretion granted to the Constitutional Court in the implementation of the substitution doctrine.

Professor Carlos Bernal Pulido in the VII Meeting of the Colombian Constitutional Court held in Bogota in October 2011, presented an influential paper where he focused on these problems and suggested an alternative test to determine the prin­ciples or values that would be irreplaceable (Bernal Pulido 2013).

Bernal, using some ideas related to the proportionality test, established the thesis that a constitutional amendment could only be unconstitutional when it is of such magnitude that it could affect the structural elements of the Constitution. That means that the doctrine would only be used as a last resort, when the “enormity of the abnormality” of the constitutional amendment has been clearly proven. It means that wherever it appears that the amendment power exceeded its faculties and made an intervention in the inherent elements of the Constitution it could be considered an unconstitutional amendment.

Secondly, Bernal proposes two principles that should be considered irreplace­able. First, those elements which relate to the principle of democracy and legality, and those which refer to the fundamental rights catalogue, the principle of rule of law and the principle of separation of powers. Secondly, those elements that are related to the guarantee of a deliberative democracy, which is provided by the effec­tive participation of citizens in decisions that affects them.

Finally, Bernal reviews a dissenting opinion in Judgment C-572 of 2004 by Justice Rodrigo Uprimny. Uprimny noted that the 1991 Colombian Constitution regulates three mechanisms of amendment - reform by the Congress (Article 375), constitutional reform by referendum (Article 378), and reform by a National Constituent Assembly (Article 376) - and thus argued that it should use the rule that a higher degree of popular participation in the mechanism of reform should imply a lesser degree of intensity in the judicial review. Bernal agreed with this statement that “the more a constitutional amendment is the result of a procedure observing the rules of deliberative democracy, the less intensive should be the judicial review” (Bernal Pulido 2013, 357).

Although Bernal’s proposal is a first attempt to establish a series of conditions of reasonableness for the implementation of the doctrine of substitution in the determi­nation of the constitutional review of the constitutional amendments, the alternative thesis has posed several problems.

One has to do with the scope of what should be understood as the “democratic and legality principle” and also the term “deliberative democracy”. Although there have been some doctrinal and jurisprudential analytic elaborations on how these principles should be understood, the breadth of the definition allows a large degree of discretion in the Court. The experience of comparative law indicates that even express intangible clauses concepts such as “Republic” or “rule of law” have a degree of interpretation that can be extended or restricted, resulting in minimalist or maximalist interpretations in assessing the irreplaceable elements.

For example, in the case of the Constitutions of France and Italy that have an eternity clause related with the concept of “Republic”, the doctrine and jurispru­dence have offered a maximalist interpretation, so that “Republic” should be under­stood not only as that regime which differs from the monarchy, but also a regime that establishes and guarantees the separation of powers, protection of rights, the rule of law, the alternation of power, the principle of constitutional supremacy and the possibility of judicial review of laws, among others.

On the other hand, when attempting to perform a detailed list of irreplaceable items such as the case of express clauses of intangibility established in Article 288 of the Constitution of Portugal,^[CCLXXXV] many of these maximalist enumerations may become obsolete before changing or informal mutations of the Constitution as has happened in the country after the signing of the Treaty of Maastricht. Authors such as Almeida Santos considered that the clauses of intangibility referring to the prin­ciple of collective ownership of the means of production, democratic planning economy and participation of grassroots organizations in the exercise of local power are considered “ unconstitutional by disuse” (De Almeida Santos 1988, 955).

Given these two experiences we can conclude that the solution to the dilemma of the indeterminacy of the irreplaceable essential elements in the Colombian case cannot be solved through an exhaustive and detailed list of such elements in a maxi­malist or minimalist way, because it could be the case that the problem of the factual and legal cases exceed the prohibitions listed.

One of these cases in Colombia, not intended as an inherent element, was the amendment that was established for provisional employees in order to avoid the need for competition. This issue lacked any direct relation with the principles of deliberative democracy or legality, but the Constitutional Court, in Judgment C-588 of 2009 and C-249 of 2012, declared the proposed amendments unconstitutional by substitution taking into account principles such as merit, equality, civil service and public competition.

I think the methodology of the Constitutional Court is better. This methodology suggests that the judgement should be open for the idea of a “living Constitution” that constantly changes its interpretation. In effect, the court established that the substitution doctrine “is not a complete, finished or permanently exhausted concept to identify the total set of hypotheses”. This idea is more practical and allows an effective response of the court while assessing the possible changes of the under­standing of the essential elements of the Constitution.

Considering the above, I think the limitations or restrictions of the Constitutional Court in the review of the constitutional amendments must focus on the protection of the constitutional democracy from the democratic majorities held in the Congress. Moreover, I am also persuaded that the precedent settled by the Constitutional Court in the study of a constitutional amendment becomes binding for future deci­sions related with those principles exposed as structural or axial in a previous judgement.

Finally it should be noted that a new problem begins to appear on the issue of the material limits of the Constitution and the implementation of the of the substitution doctrine in Colombia. This problem refers to the possible collision or tension between principles that are considered essential to the Constitution. This new prob­lem was first evidenced in the recent rulings C-579 of 2013 and C-577 of 2014, that examined the unconstitutionality of Legislative Act No. 1 of 2012, known as the “Legal Framework for Peace”, that set the possibility of applying transitional jus­tice rules in the criminalization of the former guerrilla members as well of the politi­cal participation or prospective candidates.

In those decisions, the Court decided not to declare unconstitutional this amend­ment but in the same way introduced modifications of the amendment in topics related with the international treaties related with the rights of the victims of truth, justice, reparation and conditions of non-repetition. In these two cases the Court considered whether the principle of the search for peace and reconciliation, seen as structural, should take precedence over the also essential principle of the rights of victims, and decided to harmonize them through the techniques of balancing (Villa Rosas 2014).

In sum, I believe that the “substitution doctrine of the Constitution” implemented by the Constitutional Court in the judgment C-551 of 2003 has been a good way to safeguard constitutional democracy on the possible excesses of majoritarian democ­racy. On the other hand I consider that it is better to establish the essential principles in the assessment of each concrete case, since the formulation of a series of maxi­malist or minimalist principles can represent new problems in the interpretation of the content and meaning of those elements.

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