Abstract

GARCIA-JARAMILLO, Santiago  and  GNECCO-ESTRADA, Francisco. CONSTITUTIONAL REPLACEMENT THEORY: FROM KEEPING THE SUPREMACY AND INTEGRITY OF THE CONSTITUTION, TO THE ANNIHILATION OF THE LEGISLATIVE POWER TO AMEND THE CONSTITUTION. Vniversitas [online]. 2016, n.133, pp.59-104. ISSN 0041-9060.  https://doi.org/10.11144/Javeriana.vj133.tsps.

This paper shall not discuss the power of judicial review, principle of the Colombian rule of law and carried out by the judiciary branch since 1910. In fact, the main purpose of this paper will be to carry out a critical analysis of the judicial review of unconstitutional constitutional amendments when these amendments are made by the legislative when exercising its power to amend the constitution. First of all, a short historical analysis will be made in order to demonstrate that the constitutional replacement theory was not created by the Constitutional Court in the decision C-551-03, but it was already discussed within the framework of the amendments to the 1886 Constitution. Such analysis shall evidence that this theory has been used as a political tool in complex and convulsed political moments of the Colombian history. On the other hand, this paper shall evidence that the Colombian Constitution of 1991 does not contain immutable clauses, nor does the Constitution concede to the Constitutional Court the power to undertake the judicial review of the content of the constitutional amendments -the Constitution grants the Court the power to review constitutional amendments exclusively on procedural grounds-, since such power is vested in the people when the constitution is amended by Congress.

Keywords : Constitutional amendment; constituent power; primary constituent power; secondary constituent power; democracy; unconstitutional constitutional amendments; immutable clauses; constitutional history.

        · abstract in Spanish     · text in Spanish     · Spanish ( pdf )