Between the Explicit and Implicit Limits? An Analysis of Judicial Review of the Constitutional Amendment Doctrine in Colombia

Abstract

This chapter illustrates the Colombian Constitutional Court's explicit and implicit powers to undertake the judicial review of constitutional amendments. It begins by describing and analysing the 'explicit' procedural limits of the Colombian 1991 Constitution and the doctrine about the implicit unamendability. Through a quantitative analysis of both types of judicial review, the chapter demonstrates how the two approaches have developed in Colombia, and how in that context, there is an inverse relationship between the claims based on implicit limits (increasing behaviour) and those of explicit limits (decreasing behaviour). It then sheds some insights on the discretion that judges deploy when enforcing these implicit limits. The chapter raises some criticism on the fact that the Colombian Court does not have a clear interpretation on its own competence and scope to review constitutional amendments. It also claims that the excessive use of the doctrine of implicit unamendability has the undesired effect of focusing only in these principles, thus 'relaxing' procedural judicial review, giving the idea of less strict examination of the compliance with the rules governing the constitutional amendment process, and thus decreasing the quality in deliberation.