Unconstitutional of Constitutional amendment in Colombia: dilemmas and solutions

The doctrine of the substitution of the Constitution in Colombia refers to the fact that the Constitutional Court can declare a constitutional reform unconstitutional, without the 1991 Constitution containing any axial eternity clauses. This doctrine originates in decision C-551 of 2003, where the Constitutional Court stated that the power of reform cannot go beyond its powers and change, repeal or replace one Constitution with another.

In this first decision, the Court established that the constitutionality parameter to establish when a constitutional reform replaces the Constitution are: (i) the principles and values ​​that the Constitution contains, and (ii) those that arise from the constitutionality block, that refers mostly to the human law treaties that Colombia had signed.

The doctrine of the substitution of the Constitution in Colombia, has an origin and justification similar to the basic doctrine of the Constitution of India, which since the end of the sixties introduced the idea that the reform power cannot change the basic elements of the Constitution. Both the doctrine of the “Basic Structure of the Constitution” of India, and the “Doctrine of substitution” in Colombia, have given rise to a series of problems that derive from the wide degree of interpretation that constitutional courts have in establishing when It is substituting one Constitution for another.

The paper will study the development of the substitution of the constitution doctrine and the problems it has raised, as well as the possible solutions regarding the interpretation and application of this doctrine.