–Leonardo García Jaramillo, Full Professor of Government and Political Science, Policy and Development Area, Universidad EAFIT, Medellín, Colombia
Catalyst
The significance of critical scholarship toward jurisprudence was a key topic discussed during the 20th International Seminar “Democracy in Transformation: Tools for Resilience”, held last December at the Max Planck Institute for Comparative Public Law and International Law, in Heidelberg. If legitimization is discursively constructed,[1] academic criticism may promote reasoned acceptance of jurisprudence. Because of its depth, independence, and systematic approach, academia is particularly well-suited to assess both the coherence of jurisprudence and its excesses or omissions. In contexts of high judicialization and transformative constitutionalism, scholarly scrutiny helps delimit judicial activism by distinguishing justified activism from judicial excess.
In his intervention during the Seminar, Rodrigo Uprimny criticized some Colombian Constitutional Court rulings. I elaborated on the objection raised against one application of the Court’s constitutional substitution doctrine –the Colombian variant of the unconstitutional constitutional amendment doctrine. The application of this doctrine in the case to be considered is a good example of Roznai’s caution toward this criterion of annulling amendments. In his view, “Courts can use unamendability as a strategic trump, applying it selectively, and overall elevating their powers vis-à-vis other branches. This problem is accentuated with regards to implicit limitations on the amendment power, where, in contrast with situations in which the textual standard provides guidance and constraints, the judiciary has sweeping power to determine the ‘spirit’, ‘basic structure’, or ‘basic principles’ of the constitution”.[2] The power to materially review parliamentary attempts to constitutional reform must be exercised rigorously and scrupulously, responding appropriately to the burden of argument and the exceptional nature of its exercise. The unconstitutional constitutional amendment doctrine has been recognized for its potential to protect against abusive constitutionalism.[3] As Dixon warns, however, courts must apply it with great caution or refrain from applying it altogether.[4] The Colombian Court recognized the intricacy of the substitution doctrine and therefore underscored the necessity to exercise extreme caution when implementing it (ruling C-053/16).
The Colombian Variant
Congress’s authority to amend the constitution is derived because its origin, functions, and limits are granted in the constitution itself. Recognizing the contrary would imply that constituted and constituent powers are of the same hierarchy. The constitutional text exclusively bestows the authority to review constitutional amendments on procedural grounds, however, the Court has ruled that, in exceptional cases, it also has the power to conduct a substantive review of the reformative act, that is, a review of its content (rulings C-551/03, C-1200/03, C-970/04, and C-971/04). According to these precedents, the power to review the substance derives from the power to review the form in terms of the institution’s competence in enacting it.[5]
Analyzing procedural defects includes examining jurisdiction. This leads to the distinction between reform and substitution. Parliamentary amendments cannot be of such magnitude as to imply a substitution of the current constitution with a different one. Only the people, through a constituent assembly, can make such sweeping changes. Just by examining the content of the act, the Court would be capable of determining whether the valid text has been amended or replaced. The constitutional substitution doctrine was devised to guide the argumentation process in these cases and to justify the Court’s power to review the content of the amendments.[6] The power to amend should not exceed the scope intended by the constitution.[7] In light of the vagueness of the normative standard applied by the Court in conducting the analysis, and the acute tension it generates with the democratic principle, the doctrine can only be considered admissible in cases where constitutional substitution is plainly evident. By annulling a constitutional reform duly deliberated by Parliament, the Court asserts the “final word” on the matter. Therefore, the justification for the doctrine’s impact on the democratic principle hinges on a manifest replacement of constitutional core elements.
The Critique
The following inappropriate use of the constitutional substitution doctrine constitutes a form of judicial activism might be called “corporatist”.[8] Legislative Act 2 of 2015 (balance of powers reform and institutional readjustment) invalidated presidential reelection and modified the structure of the judicial branch. The Court reviewed this amendment in rulings C-285/16 (with a single dissenting opinion) and C-373/16 (without dissenting opinions[9]). In both cases, the Court applied the doctrine arbitrarily rather than broadly or discretionary. Not only was there a lack of self-restraint, but also a disregard for precedent.
The amendment created a Judicial Governing Council to administratively manage the judicial branch and advance public policies for its proper functioning. The creation of this Commission, according to the ruling C-285/16, replaced core constitutional principles, such as the autonomy of the branch and the due process. The Court argued that the constitutional reform infringed the rule of law by failing to identify the nature of the new institution or clearly determine its place in the State’s structure. The Court declared this feature of the amendment unconstitutional based on a constitutional substitution line of reasoning. It was argued unconstitutional a commission for officials under special jurisdiction (fuero) designed to moderate or restrict the excesses that members of the judiciary and other officials in the same position might commit. The commission would indict those officials, while the Supreme Court would be responsible for prosecuting them. The Constitutional Court held that the judicial branch’s autonomy as a constitutionally defined feature is only guaranteed if its members are tried by a body capable of balancing punishment with considerations such as “the pursuit of the common good,” “institutional stability,” or the “exceptional” nature of their powers.
According to the ruling, the Commission replaces the constitutional element of judicial independence and displaces bodies of popular origin in performing investigative and prosecutorial tasks “of sanctions, in open contradiction with an exceptional regime which, in view of judicial independence (…) sought to operate only in serious and extreme situations” (ruling C-373/16, § xii). Modifying the system of investigating, prosecuting, and trying of high court judges and the Attorney General, replaces the defining axis of “separation of powers and judicial autonomy and independence.” The Court found that Congress exceeded its amendment powers by introducing this novel system, which is incompatible with the original system purposes which sought to ensure the balance between the branches of government and the independence of the judicial branch. The argument that the “political sensitivity of the bodies that exercise judicial control over those with immunity” is part of the “spirit” of the Constitution, is debatable. It seems nonsensical considering that, after the Commission acted in disciplinary proceedings, political bodies (the House of Representatives and the Senate) retained the final say in indicting and trying those under special jurisdiction.
In this case, moreover, the parties involved in the proceedings were deeply divided on key issues. It was requested by the parties below that the amendment be declared in accordance with the Constitution: (1) Ministry of the Interior; (2) Ministry of Justice and Law; (3) Legal Secretariat of the Presidency; (4) four academic institutions; (5) a House Representative; (6) the Attorney General; (7) a former National Constituent Assembly (NCA) delegate; and (8) the NGO “Dejusticia”. Conversely, (1) another former NCA delegate and (2) a Superior Court of Bogotá judge, requested an unconstitutionality declaration. In this respect, at least, the Constitutional amendment did not obviously replace a core element of the Constitution.
In the second ruling the provisions establishing the new design of the judicial government were declared unconstitutional. The Court defines judicial self-government (C-285/16 §6.2, 6.3) based on the organic design of a specific institution (Consejo Superior de la Judicatura) without demonstrating the essential nature of this definition. Confusing an essential aspect of the Constitution with the design of an institution, without providing arguments to articulate the scope of this aspect in accordance with other constitutional provisions, effectively petrifies this design. It was not properly demonstrated that the new element contradicts the essential element or differs from it to such an extent that it is incompatible with other essential elements of the Constitution.
Conclusion
The implementation of the substitution doctrine is an example of judicial activism that is neither inherently beneficial nor detrimental to a substantive conception of the Rule of Law as a prerequisite to constitutional democracy.[10] It all depends on how the provisions are interpreted and the different methodologies applied, with the justification of both being crucial. By misusing substitution doctrine, the Court lends credence to critics who warn of the risks of judicial overreach. In both judicial decisions the arbitrary and insufficiently well-founded application of the constitutional substitution doctrine undermines the argument in favor of judicial review, as well as its potential to achieve and maintain legitimacy. The reasoning behind both decisions exhibits more characteristics of political judgement than legal judgement. Rather than examining constitutionality, the Court made a judgment based on political utility or convenience –and, above all, on its own convenience. In these cases, it seems that by applying the doctrine the Court is more concerned with preventing effective external horizontal control mechanisms than with protecting the constitutional “spirit,” “basic structure,” or “core principles”.[11] These rulings could be considered “corporatist activism” insofar as they demonstrate resistance to external control, institutional closures and reinforced self-protection without proper justification.
Suggested citation: Leonardo García Jaramillo, “Corporatist Judicial Activism” in Colombia: A Critique, Int’l J. Const. L. Blog, Jan. 13, 2026, at: http://www.iconnectblog.com/corporatist-judicial-activism-in-colombia-a-critique/
[1] Jürgen Habermas, Between Facts and Norms, Cambridge, The MIT Press, 1996, chapters 3.3 and 4.2.
[2] Yaniv Roznai, Unconstitutional Constitutional Amendments. PhD dissertation. London School of Economics, 2014, pp. 229-230: https://etheses.lse.ac.uk/915/1/Roznai_Unconstitutional-constitutional-amendments.pdf (9.12.25).
[3] David Landau, Rosalind Dixon, & Yaniv Roznai, “From an Unconstitutional Constitutional Amendment to an Unconstitutional Constitution?”, in: Global Constitutionalism, Vol. 8, Issue 1, 2019.
[4] Rosalind Dixon, Responsive Judicial Review, Oxford University Press, 2023, p. 49.
[5] See, in general, Carlos Bernal, “Unconstitutional constitutional amendments in the case study of Colombia”, in: International Journal of Constitutional Law, Vol. 11, Issue 2, 2013.
[6] In ruling C-1040/05, the Court changed the concept of “defining element of the Constitution´s identity” to “essential element.” The parameters for establishing the major premise in the substitution judgment, are: (1) identify clearly the essential element that has allegedly been replaced, (2) explain its specific characteristics in the 1991 Constitution based on multiple normative references, and (3) demonstrate why it is essential to the Constitution identity as a whole. Then, it must be verified whether (4) this essential element cannot be reduced to a single article, in order to prevent it from being transformed into an “entrenched clause”, and whether (5) the analytical statement of that essential element is not equivalent to setting material limits that cannot be affected by the amendment power (C-1040/05, C-288/12).
[7] Richard Albert, Constitutional Amendments: Making, breaking, and changing constitutions, New York, Oxford University Press, 2019.
[8] In comparative terms, courts across countries frequently utilize the unconstitutional constitutional amendment doctrine in this manner. See, Po Jen Yap & Rehan Abeyratne, “Judicial self-dealing and unconstitutional constitutional amendments in South Asia”, in: International Journal of Constitutional Law, Vol. 19, Issue 1, 2021. I am grateful to David Landau for this reference, among other insightful comments.
[9] After issuing a press release announcing the ruling, the Court took seven months to publish the 232-page long text of the decision.
[10] Leonardo García Jaramillo, “Judicial Activism”, entry in the Max Planck Encyclopedia of Comparative Constitutional Law, Oxford University Press, forthcoming.
[11] Celemín refers the dangerous side of the substitution test and its instrumental use. See, Andrea Celemín, “Sustitución constitucional: reflexiones a partir del principio de pesos y contrapesos”, in: Prolegómenos, Vol. 23, Issue 46, 2020. The problem with applying the doctrine to cases other than those concerning the defense of fundamental rights is that it creates rigidities that distort the State’s structure. See also, Alejandro Ramelli, “Luces y sombras del ejercicio del test de sustitución en Colombia”, in: Derecho del Estado, Issue 48, 2021. Landau, Dixon and Roznai have explored how the doctrine operates when it covers claims against the original constitution itself rather than a subsequent amendment. The oxymoron of an “unconstitutional constitution” is analyzed. See, David Landau, Rosalind Dixon, & Yaniv Roznai, “From an Unconstitutional Constitutional Amendment to an Unconstitutional Constitution?”, cit.