Friday, December 8, 2017

Cajas on Judicial Review of Constitutional Amendments in Colombia

Mario Cajas, Universidad Icesi, Colombia, has published Judicial Review of Constitutional Amendments in Colombia: A Political and Historical Perspective, 1955-2016” in the journal Theory and Practice of Legislation (2017):
The Colombian Constitutional Court is widely known for being one of the emblematic and activist Courts representing the New-constitutionalism of the Global South, and also for the judicial review of the constitutional amendments under the ‘constitutional replacement doctrine’ (substitution doctrine). The Court adopted the substitution doctrine since its decision C-551/2003, in a time that coincides with the global expansion of the judicial review of constitutional amendments. However, it is far less known that, in Colombia, the debate about the judicial review of the constitutional amendments commenced several decades before that global expansion. This article intends to reconstruct the judicial review path of the constitutional amendments, and to show the interdependence between the political context and the doctrines of both the Supreme Court (1955–1991) and the Constitutional Court (1992–2016). The article examines this interdependence to contribute to a better understanding of the role of the Legislature, the Executive and the Judiciary in the construction of legal doctrines, such as the supremacy of the Constitution, the principle of separation of powers, the intangibility of constitutional clauses or the power of constitutional reform in the complex political context of a South American country. In sum, this article seeks to present how the judicial review path of the constitutional amendments in Colombia began long before the ‘expansion’ of that phenomenon at a global level, to show the interdependence between Law and Politics on that path, and to highlight the different Supreme Court and the Constitutional Court judicial activism in this topic since 1955 to the present.

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