[Editor’s Note: I-CONnect is pleased to feature short posts based on papers presented at a symposium on “Contemporary Discussions in Constitutional Law” held at the Externado University of Colombia. This online symposium will feature nine parts, including this Introduction. We are very grateful to Professors Magdalena Correa Henao and Andrés Mauricio Gutiérrez Beltrán for convening the symposium, and for serving as guest editors for this online symposium.]
–Magdalena Correa Henao & Andrés Mauricio Gutiérrez Beltrán, Externado University of Colombia
The Department of Constitutional Law of Universidad Externado de Colombia hosted a symposium entitled Contemporary Discussions on Constitutional Law. The main goal of the event was to analyze some of the most relevant topics that are currently discussed in the field of constitutional law.
The symposium began with a presentation by Professor Carlos Bernal Pulido, justice of the Colombian Constitutional Court, who shared some thoughts about the great paradox of the “Transformative Role of the Colombian Constitutional Court.” This Court is well-known worldwide for carrying out transformations related to the enforcement of constitutional rights and the elimination of discriminatory practices, among other important issues. However, these changes have still failed to achieve in full the goals set by the Court, which leads to the above-mentioned paradox: if the Court declines the task of issuing its characteristic transformative decisions, the constitutional objectives concerning the realization of constitutional rights, the rule of law and deliberative democracy will never be achieved in full. However, if the Court carries on with the changes, its decisions might not generate the desired transformative effects. His paper will form the basis of his short post for I-CONnect, to be published next in this multi-part online symposium.
Sabrina Ragone, Professor of Comparative Law at the University of Bologna, presented a work-in-progress on the constitutional amendments passed in Latin America allowing presidential reelection. Specifically, Sabrina studies the role played by the corresponding supreme and constitutional courts in the process of reviewing the constitutional validity of these reforms. When analyzing the cases of Colombia, Ecuador and Venezuela, it is clear that the courts in these countries have achieved different and contradictory conclusions. Her research exposes these contradictions and tries to explain the reasons behind the ambivalent use of the principles of equality and separation of powers, which were applied by these domestic courts with different results.
Andrés Gutiérrez, Professor of Constitutional Law at Universidad Externado de Colombia, addressed the issue of the measurement of the effectiveness of transformative judgments. Based on the particular case of the structural decisions handed down by the Colombian Constitutional Court, Andrés pointed out the main difficulties faced by the prevalent approaches that attempt to assess the fulfillment of these judicial interventions. He claims that it is necessary to frame a new evaluation method that focuses on the situation of the victims, instead of paying attention to marginal results that do not consider the real changes of their living conditions.
Richard Albert, Professor of Law at the Universtiy of Texas at Austin, presented a co-authored work-in-progress on the formalist resistance to the unconstitutional constitutional amendments doctrine. Courts around the world have either asserted or exercised the power to invalidate a constitutional amendment on substantive grounds. The dominant view in the field is overwhelmingly favorably inclined toward the idea that courts should have the power to invalidate a procedurally-perfect amendment they deem unconstitutional, even in cases where the codified constitution does not entrench a formally unamendable rule. In his paper, Richard explores three jurisdictions—France, Georgia and Turkey—whose constitutions and attendant constitutional practices have rejected this doctrine. In doing so, he attempts to offer an alternative account to the prevailing approach according to which this doctrine ought to be a necessary feature of contemporary constitutionalism. As a consequence, Richard claims that design and practice in these jurisdictions show that a universal consensus on this matter is far from being achieved.
Vicente Benítez, JSD student at NYU and Constitutional Law Professor at Universidad de La Sabana, shared some of the main ideas of his doctoral dissertation. In this research, he evaluates whether the Colombian Constitutional Court is, as scholarship assumes, a robust institution in matters related to the limitation of presidential powers, and aims to explain the factors behind its strength or weakness. In this presentation, Vicente pointed out that, in spite of the common usage of the notion of judicial strength, its meaning is not accurate enough to capture its main traits and implications. In this context, the paper is a first approach that attempts to propose a definition of a “strong” court and tries to offer some tools to measure judicial strength. More specifically, the paper claims that judicial strength is composed by three elements: sincerity, compliance and effectiveness.
Diego González, Professor of Constitutional Law at Universidad Externado de Colombia, presented a paper on the causes that explain the institutional role played by the Colombian Constitutional Court in this country. Challenging the dominant opinion that claims that the Court has become a central player in the political system due to the black holes left by the political branches, created by either the lack of political will or by dysfunctional public policies, Diego argues that there are four arguments that better explain this situation: historical, normative, conceptual and practical ones.
Luisa Fernanda García López, Professor at Universidad del Rosario, presented a paper on “The Political Parties: From a Two Party System to the Crisis of Representation in Colombia.” In her paper, Luisa examines the changing role of political parties in moments of institutional transformation in Colombia, beginning from the period of “violence” in 1948 through the present day. Luisa tracks the multiplication of political parties in the country, and explores what the rise of new parties means for Colombia’s traditional parties.
Finally, Magdalena Correa, Head of the Constitutional Law Department at Universidad Externado de Colombia, addressed the issue of the popular consultations carried out in Colombia in order to develop mining projects. In this paper, she argues that, in spite of the economic benefits that these projects bring to the country, it is necessary to consider the side effects that they provoke in the regions affected by these activities. In that sense, she claims that local inhabitants have a legitimate right to oppose to this and that this right strengthens democracy as it allows people to participate in the decision of matters that directly concern them.
The symposium confirmed that classic subjects such as judicial activism, democracy and the counter-majoritarian difficulty have not lost their relevance in contemporary constitutionalism, and they still provoke great interest. However, it seems clear that these topics demand new and fresh approaches considering the tough challenges that constitutionalism faces nowadays. Today, courts must deal with issues that were not their business in the past: contamination, extreme poverty, human migration, to name just a few. The participants agreed that the exchange of ideas in this symposium was both productive and enjoyable. They agreed that learning about others’ works-in-progress proved fascinating and useful, and also helped to generate new ideas for their own research.
Universidad Externado de Colombia is pleased to host these seminars and welcomes future events that may enrich our discussions related to constitutional rights, the rule of law and social justice.
Suggested Citation: Magdalena Correa Henao & Andrés Mauricio Gutiérrez Beltrán, Introduction to I-CONnect Symposium–Contemporary Discussions in Constitutional Law, Int’l J. Const. L. Blog, Oct. 31, 2018, at: http://www.iconnectblog.com/2018/10/introduction-to-i-connect-symposium-contemporary-discussions-in-constitutional-law