—Luis Guillermo Guerrero Pérez, Director of the Department of Public Law at the Pontificia Universidad Javeriana Law School, Bogotá, Colombia. Former President of the Colombian Constitutional Court and magistrate of that body from 2012 to 2020.
The Constitutional Court’s recent decision to provisionally suspend Decree 1390 of 2025, by which the Executive declared a state of economic emergency, has generated intense debate. Some observers view the measure as an unprecedented assertion of judicial authority and an overreach of its constitutional competence; others see it as a necessary response to an increasingly assertive Executive operating within a system of strong presidentialism that risks undermining the separation of powers. While both perspectives have merit, neither fully appreciates the deeper constitutional dynamics at play. To understand the significance of this decision, one must situate it within the broader trajectory of Colombian constitutional review, a path marked by moments of judicial restraint, episodes of doctrinal expansion, and a constant tension between constitutional text and constitutional practice.
Colombia is internationally recognized for having developed one of the most sophisticated systems of constitutional review. Yet the Constitution does not expressly grant the Court the power to provisionally suspend norms with the force of law. This silence is striking. The framers of the 1991 Constitution were deliberate in allocating powers of judicial review, but they did not include a mechanism equivalent to the provisional suspension available in administrative litigation. Historically, the Court itself has been cautious in assuming such authority. Indeed, it had previously declared unconstitutional certain provisions of the project of statutory law regulating states of emergency that allowed provisional suspension in specific circumstances, reasoning that such a power required explicit constitutional authorization.
This background makes the Court’s recent decision appear, at first glance, as a departure from its own jurisprudence. However, Colombian constitutional law has long been characterized by a dynamic tension between textual limits and functional imperatives. Throughout its history, the Court has deemed it necessary to adapt its tools, doctrines, and interpretive frameworks to meet evolving challenges, whether they arise from executive overreach, legislative omissions, institutional inertia, or structural inequalities that undermine fundamental rights. The decision on Decree 1390 falls squarely within this tradition.
I. The Evolution of Judicial Review: From the Supreme Court to the Constitutional Court
To appreciate the Court’s current posture, it is essential to recall that Colombia’s constitutional review system did not begin in 1991. The Supreme Court of Justice exercised constitutional review for most of the twentieth century, and its jurisprudence evolved significantly over time.
For decades after 1910, for instance, the Supreme Court held that it lacked competence to review procedural defects in the enactment of laws. This position was reaffirmed repeatedly, even though procedural irregularities were often at the heart of political disputes. The 1945 constitutional reform explicitly rejected the introduction of judicial review for procedural defects, reinforcing the Court’s restrictive stance. Yet in 1952, in a landmark decision, the Supreme Court reversed course and held that it indeed possessed such competence. This shift was not grounded in a new constitutional text but in a reinterpretation of the Court’s role as guardian of constitutional integrity.
A similar evolution occurred in the Court’s approach to constitutional amendments. For decades, the Supreme Court maintained that it lacked authority to review constitutional reforms, viewing them as expressions of constituent power beyond judicial scrutiny. This position was dramatically altered in the late 1970s. In reviewing the reform attempts of 1977 and 1979, the Court asserted that it could examine whether the procedures for constitutional amendment had been properly followed. Although the Court did not yet articulate a substantive doctrine of constitutional substitution, it laid the groundwork for the more robust review later developed by the Constitutional Court.
In what might be viewed as a transitional phase, following the adoption of the 1991 Constitution, the Constitutional Court reversed the position maintained by the Supreme Court of Justice regarding the control over the constitutionality of international treaties. The 1991 Constitution introduced a system of prior review for treaties before ratification. However, a question remained regarding treaties ratified before 1991, which had never undergone constitutional review. In the Concordat case, the Constitutional Court held that it could review the constitutionality of such pre‑1991 treaties, thereby overturning the Supreme Court’s long‑standing position that ratified treaties were beyond judicial scrutiny.
A similar transitional dynamic occurred in relation to decrees declaring states of exception. Under the Supreme Court’s jurisprudence, such decrees were considered “political acts,” subject only to formal review. The Constitutional Court rejected this limitation, holding that it could examine not only the formal aspects of decrees declaring a state of emergency but also their factual basis and substantive content. This shift reflected the new Constitution’s commitment to limiting executive power and ensuring that states of exception did not become tools for circumventing democratic controls.
These historical precedents demonstrate that Colombian constitutional review has never been static. The judiciary has repeatedly adapted its interpretive tools to confront new challenges, even when doing so required revisiting long‑standing doctrinal positions.
II. The Constitutional Court’s Expansive Doctrines: Tutela Against Judgments and Constitutional Substitution
Under the 1991 Constitution, two areas illustrate particularly well how the Court has expanded its jurisdiction in response to constitutional imperatives: Tutela — a legal procedure used to seek injunctions for protecting fundamental rights — against judicial decisions, and the doctrine of constitutional substitution.
1. Tutela Against Judicial Decisions: From Prohibition to Procedural Grounds
The 1991 Constitution did not expressly authorize tutela actions against judicial decisions. In fact, the 2591 decree, which regulates the “acción de tutela,” included provisions that allowed tutela against judicial rulings in certain circumstances, but the Constitutional Court initially declared those provisions unconstitutional. The Court reasoned that allowing tutela against judicial decisions would undermine legal certainty and disrupt the autonomy of the judiciary.
Yet the Court soon confronted cases in which judicial decisions produced manifest violations of fundamental rights. To address these situations, the Court developed the doctrine of the vía de hecho, holding that when a judicial decision was so arbitrary or capricious as to constitute a de facto act rather than a judicial ruling, tutela could be used as a corrective mechanism. This doctrine was initially narrow, limited to extreme cases of judicial abuse.
Over time, however, the Court refined and expanded the doctrine. The concept of vía de hecho evolved into a more structured set of requirements for admissibility (causales de procedibilidad) and specific grounds (causales específicas), including defects of competence, procedural flaws, substantive errors, and violations of precedent. This framework transformed tutela against judicial decisions from an exceptional remedy into a central mechanism for protecting fundamental rights within the judicial system.
The trajectory is clear: the Court moved from declaring the statutory authorization of tutela against judicial decisions unconstitutional, to developing a comprehensive doctrine that effectively constitutionalized such review. This evolution was driven not by textual mandates but by the functional need to prevent irreparable harm to fundamental rights.
2. Constitutional Substitution: From Procedural Review to Competence Review
The Constitution grants the Court authority to review constitutional amendments only for procedural defects. The framers explicitly rejected substantive limits on constitutional reform, leaving the content of amendments to the political process.
Nevertheless, in the early 2000s, the Court developed the doctrine of constitutional substitution. Under this doctrine, the Court may strike down a constitutional amendment if it replaces one of the essential elements of the Constitution, thereby exceeding the competence of the constituted power to amend. The Court justified this doctrine by distinguishing between procedural defects, which the Constitution expressly authorizes the Court to review, and “competence defects,” which arise when the amending authority exceeds its constitutional mandate.
This doctrinal innovation significantly expanded the Court’s authority. It allowed the Court to review not only the procedures by which amendments were adopted but also their substantive compatibility with the identity of the Constitution. The doctrine has been applied in several high‑profile cases, including those involving presidential reelection.
Like tutela against judicial decisions, the substitution doctrine reflects the Court’s willingness to interpret its mandate expansively when necessary to preserve the constitutional order.
III. Control of States of Exception: Preventing Executive Overreach
As previously noted, the Constitutional Court has also exercised robust control over decrees declaring states of exception. Although the Constitution grants the Executive broad authority to declare emergencies, it also subjects such declarations to judicial review. The Court has interpreted this power broadly, examining not only the formal requirements of emergency decrees but also the factual basis for the declaration.
This jurisprudence reflects a recognition that states of exception pose inherent risks to democratic governance. In a system characterized by strong presidentialism, emergency powers can easily become tools for bypassing ordinary democratic controls. The Court’s vigilance in this area has been essential to preventing executive overreach.
IV. The Decision on Decree 1390: Preventing Control Elusion
Against this backdrop, the provisional suspension of Decree 1390 appears less as an isolated act of judicial assertiveness and more as a continuation of a long‑standing pattern in Colombian constitutional law. The Court faced a situation in which allowing the decree to remain in force during the months required for a full review would have risked rendering its eventual decision meaningless. The government could have collected and spent the extraordinary revenues authorized by the emergency, creating irreversible fiscal and legal consequences. By the time the Court issued its final ruling, the constitutional violation, if one existed, would already have been consummated.
This is a classic case of control elusion. A constitutional court that cannot prevent the irreversible execution of potentially unconstitutional measures risks becoming merely symbolic. The provisional suspension was, therefore, necessary to preserve the effectiveness of constitutional review.
V. The Need to Safeguard the Court’s Independence
Yet the decision also raises important institutional questions. Every time the Court expands its interpretive reach to confront an urgent constitutional threat, it accumulates substantial discretionary power, often unanticipated by the constitutional text. Such power is not inherently problematic; indeed, it has often been essential to the preservation of democratic order in Colombia. But it does impose a corresponding obligation: to ensure that the Court’s autonomy and independence remain beyond reproach.
This independence has two important dimensions. First, it refers to the freedom of judgment of each magistrate, ensuring their decisions are driven solely by constitutional concerns and not by other considerations, especially political affiliation. Secondly, and even more importantly, it relates to external independence, which shields the Court as an institution from undue influence by the Executive and Congress.
The latter is the true cornerstone of constitutional justice. A Court that exercises extraordinary powers, such as the provisional suspension of measures having the force of law, must be institutionally insulated from political interference, institutional capture, appointment manipulation, or legislative attempts to curtail its jurisdiction. Without such guarantees, the very authority that enables the Court to act as guardian of the Constitution becomes a source of vulnerability.
Safeguarding the Court’s autonomy vis‑à‑vis the political branches is a democratic imperative. The legitimacy of decisions like the provisional suspension of Decree 1390 depends not only on their legal soundness but also on the public’s confidence that they are rendered by a tribunal free from external pressures and political contingencies.
VI. Conclusion
The provisional suspension of Decree 1390 of 2025 is best understood as part of a broader historical pattern in Colombian constitutional law. Faced with the risk of control elusion and the dangers of executive overreach in a system of strong presidentialism, the Court acted to preserve the effectiveness of constitutional review. This decision, like earlier expansions of judicial authority, from tutela against judicial decisions to the doctrine of constitutional substitution, reflects the Court’s ongoing effort to adapt its tools to the demands of constitutional governance.
But it should be emphasized that the Court’s expanding role makes it essential to safeguard its autonomy and independence. Only a Court that is institutionally strong, politically insulated, and internally cohesive can legitimately exercise the extraordinary powers that constitutional guardianship sometimes requires.
Suggested citation: Luis Guillermo Guerrero Pérez, The Colombian Constitutional Court Taming Presidential Power: A Historical Overview, Int’l J. Const. L. Blog, Feb. 17, 2026, at: https://www.iconnectblog.com/the-colombian-constitutional-court-taming-presidential-power-a-historical-overview