Introduction
The Colombian Constitutional Court in decision C-551 of 2003 introduced the “Constitutional replacement doctrine” or “unconstitutionality for substitution”. This doctrine means that the Constitutional Court could review the content of a constitutional amendment and declare them unconstitutional not only due to procedural irregularities in the strict sense, but also for irregularities of competence when such power changes “an inherent part of the Constitution” or the principles and values derived from the international treaties that Colombia had signed, especially related to human rights protection (art.
93 of the Constitution) and Labour protection (The treaties from the International Labour Organization ILO- Art. 53.4 of the Constitution) that it has called “the constitutional block”.G.A. Ramirez-Cleves (*)
Universidad Externado de Colombia, Cl. 12 #1-17 Este, Bogota, Colombia
e-mail: gonzalo.ramirez@uexternado.edu.co
© Springer International Publishing Switzerland 2016 213
T Bustamante, B.G. Fernandes (eds.), Democratizing Constitutional Law,
Law and Philosophy Library 113, DOI 10.1007/978-3-319-28371-5_10
The “Constitutional replacement doctrine” is an eminently judicial creation, because the 1991 Constitution does not contain express clauses that prohibit the constitutional amendment such as the “Eternity Clauses” in the German Constitution of 1949 - Basic Law - in Article 79.3, the Italian Constitution of 1947 in Article 139, the French Constitution of 1958 in Article 89.5, the Portuguese Constitution of 1976 in Article 290, and in the Latin American context, among others, the Brazilian Constitution of 1988 in Article 60.4, the Constitution of El Salvador of 1982 in Article 248, the Venezuelan Constitution of 1999 in Article 342, and the 2008 Ecuadorian Constitution in Article 441, where one can find specific prohibitions from changing general aspects related to the concept of Constitution such, fundamental rights and the rule elements of law, the alternation of power, the articles on constitutional amendment and other particular elements that refer to the type of state and political organization of each state, such as the federal character of the state, the social state of law, the republican character, the popular participation in the local government or the prohibition of presidential re-election.
The declaration of unconstitutionality of constitutional amendments in constitutions that lack prohibition clauses of amendment is not common in comparative law. Initially there was the practice in India where the Supreme Court since 1967 in the case Golaknath vs. State of Punjaba established that the power of reform could not be confused with the constituent power, a thesis that has led to the doctrine of the “Basic Structure” which was introduced in 1973 in the case Kesavaranda Bharati vs. Kerala. In that decision the Supreme Court said that are some structural elements that cannot be modified and that the Court has enabled the power to declare unconstitutional constitutional amendments in that country.
The doctrine of the material limits of constitutional amendment has been adopted as a growing trend in the comparative constitutionalism, as Yazniv Roznai demonstrated in a thesis presented in 2014 at the London School of Economics entitled “ Unconstitutional Constitutional Amendments: A Study of Nature and the Limits of Constitutional Amendment Powers”, where he explains that the Tribunals and Constitutional Courts around the world are increasingly likely to ground judicial review of constitutional reforms on the understanding that there are some structural, inherent, axial, basic or essential elements in the Constitution that cannot be changed through the power of amendment (Roznai 2014).
The same author explains in a shorter article that despite the particularity of judicial review of constitutional reforms in constitutions that have no prohibition clauses, the phenomenon has been expanding in countries such as India, Bangladesh, Colombia, Argentina, Peru, Taiwan and Mexico resulting a form of “Migration of constitutional Ideas" (Roznai 2013), using this concept of Sujit Choudry (2006), which means that it has created a constitutional tendency of such practice evidenced, for example, by a recent ruling issued by the Constitutional Court of Turkey in June 2008, which annulled a parliamentary constitutional amendment that removed the ban on wearing headscarves in public universities, because such reform affect the principle of secularism that is a basic principle of the Constitution of that country.
As we said before, Colombia has implemented the doctrine of unconstitutional constitutional amendment since the landmark Judgment C-551 of 2003, that had led to the declaration of unconstitutionality of constitutional amendments on five occasions until now.
Those judgments took into account structural principles such as separation of powers (C-1040 of 2005 and C-141 of 2010), the democratic state (C-141 of 2010), checks and balances (C-141 of 2010), equality (C-588 of 2009 and C-249 of 2012), merit (C-588 of 2009 and C-249 of 2012), civil service (C-588 of 2009 and C-249 of 2012), the prevalence of general interest (C-1056 of 2012), the duty of Congress to act at all times with fairness and common good (C-1056 of 2012), the public morality (C-1056 of 2012), the possibility that voters control the actions of the elected (C-1056 of 2012) and a particular configuration of the component assigned to the different mechanisms of judicial review (C-1056 of 2012).Within the five rulings, special emphasis is deserved by Judgment C-141 of 2010, which reviewed law 1345 of 2009, that called a referendum to amend Article 197 of the Constitution in order to allow the re-election of the President of the Republic for a second time. In this case, the Constitutional Court ruled that the proposed amendment replaced the democratic principles of separation of powers, checks and balances, alternation of the power and equality, and declared it unconstitutional. This historic judgment, perhaps the most important that the Constitutional Court has issued in a political matter in its entire history, has led it to consider as necessary the constitutional replacement doctrine for the protection and maintenance of constitutional democracy in Colombia.
In this paper I will study whether the doctrine of substitution is a good way to resolve the tension that occurs between majoritarian democracy and constitutional democracy, but also but why it is necessary to have in such review elements of rationality and proportionality to avoid the excessive discretion of the Constitutional Court in the application of the constitutional replacement doctrine.
The hypothesis of this chapter is that the “constitutional replacement doctrine” can be a good way of protecting constitutional democracy from the majoritarian conception of democracy, but the doctrine should be applied only in extreme cases where it becomes apparent that some of the structural or axial elements of the Constitution are threatened or jeopardized.
To determine this, the Court should use arguments of reasonableness and avoid excessive discretion in applying the doctrine in the judicial review of the constitutional amendments.Given this premise, the paper will take into account two aspects: firstly (i) constitutional democracy as a way to avoid the risks of majoritarian democracy (or democracy of majorities), and secondly (ii) the constitutional replacement doctrine as a way of protecting constitutional democracy against democracy of majorities, where I will study the potential problems of the adoption of this doctrine in Colombia and the proposals for overcoming them, considering the premise that such doctrine has to avoid extreme judicial discretion.
10.2