The Unconstitutional Constitutional Amendment Introducing Life Imprisonment in Colombia

Sebastián Serna Herrera

Universidad Externado de Colombia

Editor’s note: A different version of this post was originally published in Spanish on the blog Agenda Estado de Derecho. 

Article 34 of the Political Constitution of Colombia prohibits punishments of life imprisonment. However, in 2020, the Congress of the Republic adopted a constitutional amendment (Legislative Act 01 of 2020), establishing life imprisonment – which could be subject to revision every 25 years – for those convicted of criminal offenses against the sexual integrity and sexual freedom of minors, aiming to deter crime by increasing penalties. Last September, however, the Constitutional Court declared this amendment unconstitutional, as explained below.

Implicit limits to the power of amendment and life imprisonment in the Colombian case

In Colombian constitutionalism, the theory of implicit limits to the power of amendment is called the “substitution doctrine”. In this regard, first, it must be noted that article 241.1 of the Constitution empowers the Constitutional Court to carry out the judicial review over the constitutional amendments issued by the legislative authority solely for procedural errors. Furthermore, it is important to keep in mind that the Constitution of 1991 does not contain entrenched clauses, hence, does not explicitly limit the power to amend.

Even though according to the constitution the power to carried out judicial review over constitutional amendments is limited to procedural erros, in the judgment C-551/2003, the Constitutional Court provided a broad interpretation of the concept of "procedural errors”. In so doing, it concluded that this concept also includes the errors of competence in which the Congress of the Republic may incur, when, instead of amending the constitution, it replaces it; a power that belongs exclusively to the people, the primary power.

Per the constitutional doctrine established by the Court, this substitution is evidenced when the content of the amendment drastically affects a "defining axis" that identifies the Constitution of 1991. Thus, when this axis is eliminated or modified, the Political Charter can no longer be considered as modified or amended but replaced by a different one. Currently, the identification of these defining axes is conducted by the Constitutional Court on a case-by-case basis.

In this sense, the Constitutional Court, in the judgment C – 294/2021, held that the constitutional amendment that established life imprisonment, which can be reviewed every 25 years, for those who committed crimes against sexual integrity and sexual freedom of minors was unconstitutional. This decision was reached on the basis that this amendment violated the Social and Democratic character of the State, founded on human dignity (Estado Social y Democrático de Derecho)—a  defining axis of the constitution, according to the Court. As such, the amendment was replacing the Constitution. 

In Colombia, the application of the substitution doctrine entails a syllogism that contains a major premise, a minor premise, and a conclusion. An example of the syllogism will be developed hereunder, regarding the review conducted by the Court in its decision on the revisable life imprisonment:

Major premise: In this first step, the Court identifies the defining axis derived from the constitutional text that has allegedly been violated. In the case at hand, the Constitutional Court concluded that the essential limitation to the amendment power was the Social and Democratic character of the State, founded on human dignity and expressed in the right to rehabilitation of the sentenced person.

Minor premise: According to the Court, this second stage implies the definition of the scope of the content of the amendment, In this case, the Court maintained that the amendment established (i) the elimination of the express prohibition of the imposition of life imprisonment established by the primary constituent power in the Constitution; (ii) its exceptional application in relation to crimes committed against the life and sexual integrity of children and teenagers; and (iii) the main object of the amendment was the protection of the rights of children and teenagers.

Conclusion: This final stage consists of a comparison between the essential limitations detected in step 1 and the scope and implications of the amendment examined in step 2. If indeed, the former is significantly undermined by the latter, it can be said that the Constitution has been replaced as one of its essential features has been implicitly repealed: The Court held that the constitutional amendment repealed a defining axis of the 1991 Constitution given that it eliminated an express prohibition imposed by the primary constituent that drastically affected the right to rehabilitation that the convicted person has, within the framework of a Social and Democratic character of the State, founded on human dignity. As a consequence, this amendment, in the Court’s view, replaced the Constitution.

For the Court, a conviction with such effects violates the dignity of the person as well as the rehabilitation purpose of the punishment "because only if it is recognized that the convicted person can resume his life in society, it is understood that the modification of their behavior and the development of their autonomy and self-determination is possible ”. Thus, for the Court, the possibility of revising the sentence after 25 years was not enough, since this revision depended on future and uncertain events, which violated the dignity of the convicted person. Additionally, this type of penalty, according to the Court, violates international treaties, such as the International Covenant on Civil and Political Rights and the American Convention on Human Rights, which prevents it from passing the substitution test.

In a similar vein, the Court reasoned that human dignity entails understanding the human being as an end in itself and that the guarantee of rehabilitation is a way of achieving said principle. Therefore, the State is allowed to limit the right to liberty for punitive purposes, but it is not allowed to abolish it.

Numerous scholars criticized the constitutional amendment arguing that it was an act of "legislative populism" and a punitive policy. That is to say, the amendment was not aimed toward developing the fundamental goals of the State, but to earn citizen sympathy and mistakenly aspire to solve the problem of criminal offenses against the sexual integrity and sexual freedom of minors, through stiffer penalties. This, in turn, disregards the fundamental rights of those deprived of liberty and the need to strengthen child and youth protection policies. Therefore, a sizeable share of legal scholars in Colombia is relieved because this constitutional amendment was already widely criticized before the decision of the Court. Similarly, the decision of the constitutional court has also been criticized because for another sector of the academia, the constitutional amendment did not violate any fundamental axis of the Constitution or because they simply disagree with the doctrine of substitution.

Sebastián Serna Herrera, is a graduate of Universidad Libre, Pereira campus, Colombia and a Public Law Specialist candidate at Universidad Externado de Colombia

Suggested Citation: Sebastián Serna Herrera, ‘The Unconstitutional Constitutional Amendment Introducing Life Imprisonment in Colombia’, IACL-AIDC Blog (17 May 2022) https://blog-iacl-aidc.org/new-blog-3/2022/5/17/the-unconstitutional-constitutional-amendment-introducing-life-imprisonment-in-colombia.