—Vicente F. Benítez R., JSD student at NYU and Constitutional Law Professor at Universidad de La Sabana (Colombia)
In a decision recently analyzed here on I-CONnect by Gonzalo Ramirez-Cleves, the Colombian Constitutional Court upheld a constitutional amendment that purports to shield the peace agreement between the FARC guerrillas and the Colombian Government. Although Ramirez-Cleves has summarized some of the main points of the decision and the reader can find a detailed description there, there are some issues that, in my view, raise important theoretical questions about the role of the Court as guardian of the Constitution, as well as about the scope of the substitution doctrine.
In this entry I will focus my analysis just on three points. But before examining them, two brief disclaimers are important. First, the Constitutional Court has not published its final decision yet. It is already a tradition of the Court’s decision-making procedure that, before the official publication of the decision, it issues a press release mentioning–but not elaborating on–the broad reasons that led to the outcome. Therefore, this is a preliminary analysis that draws on the press release’s content and probably might change in light of the final text of the Court’s opinion. Secondly, I don’t mean to answer the theoretical problems that I will present. My purpose is much more modest: I just want to bring up some concerns and posit some possible consequences that, from the perspective of constitutional theory, stem from the press release.
I. Supraconstitutional Congressional Clauses?
One of the main challenges of any peace accord involves its legal implementation. In the Colombian case, the agreement established several obligations that cannot be enforced given its incompatibility with some constitutional and legal rules. Consequently, in 2016 Congress passed an amendment to create an abbreviated procedure to enact those constitutional amendments and statutes required to implement the peace pact. Thanks to this expedited path, in May 2017 the Colombian Congress approved an amendment providing that those aspects of the agreement related to international human rights law (IHRL) norms or international humanitarian law (IHL) rules “shall be mandatory interpretive parameters as well as reference standards for assessing the validity and application of the norms and statutes aimed at implementing the final agreement […]”. As a result, “[…] any legal development to implement the Final Agreement […] shall be coherent with it […] in order to preserve the contents, commitments, spirit and principles of the Final Agreement”.
One plausible interpretation of the previous excerpts would run as follows: if several constitutional amendments are required to develop the agreement, those amendments must be coherent with it. Even more, if an amendment passed by Congress to implement the agreement is not compatible with those elements of the accord connected to IHRL or IHL rules, it will be invalid. Presumably, in this scenario the Court would have to quash the amendment. If we accept this reading, a possible implication would be that the said IHRL and IHL components of the agreement are supraconstitutional. Let me explain why.
Following Alf Ross and Leopoldo Uprimny, I have argued elsewhere that, in the Colombian case, any limit to constitutional amendments (be it procedural or substantive, explicit or implied) necessarily and logically has to be a supraconstitutional norm. In effect, (a) the Constitutional Court has consistently held that a constitutional amendment has the same rank as a constitutional provision. According to the Court, a constitutional amendment cannot be understood as a rule inferior to the Constitution because otherwise most of them would be unconstitutional given that they, to a greater or lesser extent, seek to modify (and in some way contradict) the Constitution; (b) The Constitutional Court has also concluded that a constitutional amendment can be quashed in case it infringes the basic structure of the Colombian Constitution or the procedural rules for its amendment; (c) To declare a rule as an invalid one (in our case, as an unconstitutional amendment), it must have breached a higher norm; (d) Consequently, any limit to a constitutional amendment, must be a supraconstitutional standard (a+b+c).
According to this logic, it reasonable to ask whether the Congress has created a supraconstitutional rule that constrains the substantive content of those constitutional amendments whose purpose is the implementation of the agreement. If the answer to this question is positive, then we might wonder whether the Colombian Congress has the competence to create supraconstitutional norms. Recognizing that this assertion deserves further reflection, I think Congress should not be authorized to do so for several reasons, but this is the main one: if the legislature could institute supraconstitutional rules, it would become a sovereign body that can define its own competences on constitutional amendment issues without any legal restrictions. In other words, if Congress has the attribution to amend the Constitution, but the same Congress can define the limits to this power, it can then modify this attribution as it deems fit. Indeed, the famous ‘substitution doctrine’ would be ineffective because although the Court can establish limits to the amendment power derived from the basic structure of the Constitution, Congress could easily circumvent them by creating new supraconstitutional norms. To pose a tragic but legally feasible scenario under the previous assumptions, Congress could remove all restrictions to amend the Constitution given that it can create (and arguably repeal) those supraconstitutional norms that restrict its actions.
II. Supraconstitutional Judicial Clauses?
Even though this is not the first time, the Court ‘saved’ the amendment by adding some interpretations to its textual content. In other terms, the Court concluded that in order to avoid the annulment of the amendment due to a possible violation of the constitutional basic structure, it should be read “in conformity with the Constitution”. To accomplish this mission, the Court added four hermeneutical standards that harmonize the amendment with the Constitution. In Ramirez-Cleves’ post there is an explanation of the content of these criteria. I just want to put forward the possibility that, by doing this, the Court has created supraconstitutional rules. Let me explain why.
In the European (Kelsenian) model of judicial review, the existence of additive decisions is a well-established and traditional practice. Particularly in Italy it is widely known that when there is a partial legislative omission, the Constitutional Court can fill this gap to avoid the annulment of a given statute. Some criticisms have been leveled against this kind of decision, contending that the Court would be performing a typical congressional attribution. However, a sound argument to counteract this critique lies in the fact that the Court can fill this partial omission only if the judicially-added content is clearly predefined by the Constitution. For example, if an arbitrary statute grants a series of rights only to men (implicitly excluding women), the Court can uphold the rule under the condition that it shall be interpreted as including also women. Thus, the Court wouldn’t be engaging in full-fledged legislative activity, but rather it would be just applying, to the challenged statute, a constitutional provision (i.e. equality). In one word: it is not the judge the one who is crafting legislative rules, but it is the Constitution (a higher rule) that imposes this interpretive addition to the rule.
Someone might contend that this same reasoning might be applied to the judicial addition of interpretations to constitutional amendments. Nevertheless, and as I mentioned before, if an amendment is hierarchically equivalent to the Constitution, the adhered judicial interpretations cannot stem from the Constitution, but from somewhere else. As it occurred in a previous decision, perhaps they may come from the very basic structure of the Constitution. Recall that I claimed that a possible implication of the Colombian Court’s case law is that any limit to the enactment of constitutional amendment is logically a supraconstitutional limit. Thus, when the Court identifies the implied essential features of the Colombian Constitution (which can invalidate an amendment), it is building supraconstitutional rules. These rules, in turn, are useful not only to assess the constitutionality of an amendment, but also to provide hermeneutical leverage to ‘save’ it from its annulment by means of the incorporation of certain interpretations. Ultimately, the Court would be in charge of producing supraconstitutional norms (i.e. the essential pillars of the constitutional structure) as well as constitutional norms (the interpretations added to the constitutional amendment’s text). Following R. Albert and Robert Schapiro, there would be, then, a double supercountermajoritarian difficulty: the Court not merely reviews and eventually strikes down amendments, but it also completes and corrects the work of the delegated constituent power.
III. The Marks Rule Travels to Colombia? A Possible Plurality Opinion
Finally, the Court announced in the press release that its decision was a unanimous one: there was not a single dissenting opinion. However, it is striking to notice that eight out of nine Justices announced that they will file concurring opinions. Unfortunately, the reasons provided in the press release are not enough to identify whether the holding of this case will be endorsed by, at least, five members of the Court. This is a particularly crucial issue because considering that the Court added in its reasoning section a series of interpretations to uphold the amendment, we will have to wait to see if they are sustained by the Court’s majority. If this were not the case we would be, for the first time in the Court’s history, before a plurality opinion and, eventually, the Court would have to build a rule to clarify what judges should do under these circumstances.
Far from trying to answer these complex questions, I have tried to raise a number of inquiries and some possible implications from the vantage point of democratic and constitutional theory, and in light of the Constitutional Court’s case law.
Since the Constitution is the ultimate positive rule in a state, the questions concerning constitutional amendments are metaconstitutional issues. Therefore, courts that review amendments based on implicit limitations have to rely on material, unwritten and maybe supraconstitutional rules that may amount to one of the most extreme forms of judicial activism. So, caution is advised.
Suggested Citation: Vicente F. Benítez R., Judicial Review of Peace Amendments in Colombia: Towards Supraconstitutional Rules and Plurality Opinions?, Int’l J. Const. L. Blog, Oct. 31, 2017, at: http://www.iconnectblog.com/2017/10/judicial-review-of-peace-amendments-in-colombia-towards-supraconstitutional-rules-and-plurality-opinions
 Two complete accounts in English about the Colombian substitution doctrine are offered by Carlos Bernal-Pulido, “Unconstitutional constitutional amendments in the case study of Colombia: An analysis of the justification and meaning of the constitutional replacement doctrine,” 11 International Journal of Constitutional Law 339 (2013); and Gonzalo Ramirez-Cleves. The Unconstitutionality of Constitutional Amendments in Colombia: The Tension Between Majoritarian Democracy and Constitutional Democracy. Democratizing constitutional law. Springer, 2016.
 Available at: http://www.corteconstitucional.gov.co/comunicados/No.%2051%20comunicado%2011%20de%20octubre%20de%202017.pdf [in Spanish].
 This is the so-called ‘fast track’ amendment. See Acto Legislativo 1/2016.
 See Acto Legislativo 2/2017. Non-official translation.
 Cf. Alf Ross, On Self-Reference and a Puzzle in Constitutional Law. 78 Mind 1 (Jan. 1969).
 See Leopoldo Uprimny, “Puede una reforma de la constitución ser inconstitucional?,” Revista de la Academia Colombiana de Jurisprudencia 174 (1957).
 Vicente F. Benítez R. Constitución Popular, no judicial. Temis, Bogota, 2014.
 See, for example, decisions C-551/2003 and C-1200/2003.
 See, for instance, decision C-574/2011.
 An interesting proposal to overcome the problems derived from the possibility of amending the amendment rules can be found in Richard Albert, “Amending constitutional amendment rules,” 13 International Journal of Constitutional Law 655 (2015).
 See decision C-579/2013.
 I have explored this topic here: Vicente F. Benítez R. and J. González. Cuando las constituciones callan: Omisiones constitucionales relativas y la sentencia C-579 de 2013. Anuario de Derecho Constitucional Latinoamericano. Konrad Adenauer Stiftung, Bogota, 2015. Available at: https://revistas-colaboracion.juridicas.unam.mx/index.php/anuario-derecho-constitucional/article/view/4139/3585
 This is what Vezio Crisafulli called ‘sentenze a rime obbligate’. See Vezio Crisafulli, Lezioni di diritto costituzionale. Vol. 2. CEDAM, Padua, 1984.
 See footnote 12.
 Cf. Richard Albert, “Nonconstitutional Amendments,” 22 Canadian Journal of Law and Jurisprudence 5 (2009).
 See Robert Schapiro, “The Legislative Injunction: A Remedy for Unconstitutional Legislative Inaction,” 99 Yale Law Journal 231 (1989).