Our constitutional democracies are characterized for a commitment not only to respecting human rights, division of powers, checks and balances, and to self-government in the form of government of, by, and for the people but also to reconciling two competing needs: fixity and flexibility. Since law must be stable, but cannot stand still, it is necessary to include both the possibility of channeling constitutional change via legislation and adjudication vis-à-vis interpretation, as well as the possibility of checking for unconstitutional constitutional amendments. In that sense, it is also necessary to recognize the possibility of coping with our imperfection either by promoting experimentation and controlling it.
The Colombian Constitutional Court in the decision C-551 of 2003 introduced the so- called Substitution of the Constitution Doctrine (SCD). Although the 1991 Constitution does not contain any eternity clauses the Court allowed to review the amendment, no only for procedural vices in strict sense, but for the possibility that the power of amendment uses its competence to change, derogate or substitute the structural pillars of the Constitution. The paper will analyze, from a descriptive point of view, the use of the methodologies to review the constitutional reforms and will evaluate whether they fulfill their purpose of restricting the discretionary interpretive power of the Court.
As in most peace negotiations, the (international) legal status of the peace agreement has been a significant and controversial issue in the negotiations between the Colombian government and the FARC-EP. In an (failed) attempt to protect the peace agreement from judicial and political challenges, the parties sought to attach international legal status to the 2016 Peace Agreement. This paper, firstly, demonstrates why this strategy was bound for failure on both legal and political grounds as armed groups lack agreement-making capacity in international law and as the strategy was perceived as an attempt to circumvent constitutional and democratic oversight mechanisms. Secondly, the paper explores how the Colombian Constitutional Court’s ‘peace jurisprudence’ emerged as a more feasible legal strategy that accommodated the peace agreement while maintaining the authority of the pre-existing constitutional framework.
The amendment/dismemberment distinction has been recently proposed by Richard Albert to make sense of constitutional changes that alter a key feature of the constitution’s identity but are not itself ilegitimate. We will assess the importance and usefulness of the distinction by applying it to two cases of the Argentine Supreme Court: “Fayt” and “Schiffrin”. Both cases discussed the validity of an amendment, introduced to the Constitution in 1994, that reduced the tenure of members of the judicial power from life tenure to an age-limited tenure (75 years old) with the possibility of a new presidential appointment. In “Fayt”, the Supreme Court decided that the amendment was ilegitimate, whereas in “Schiffrin”, the Court reached the opposite conclusion. I will argue that, in “Fayt”, the Court understood the change as a dismemberment, while in “Schiffrin” it was taken as an amendment. In that way, the distinction will cast light on the differences in judgement between the two decisions.