Judicial Review of Constitutional Amendments in Times of Peace: The Colombian Case

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Vincente Benítez-R.

Universidad de La Sabana

The vast majority of the analyses concerning the Colombian peace process have focused on the transitional justice component. However, one key — and often overlooked — issue is the role of the Constitutional Court when reviewing the constitutionality of the multiple and profound constitutional amendments required to implement the agreement. I will try to offer here an insight about the significance of the Court in the implementation phase, and how the need for executing the agreement in a quick manner has led the Court to make the judicial review of amendments more flexible than what it was when originally designed in 2003.

The Contextual Background

One of the main political projects of President Juan Manuel Santos was reaching a peace agreement with the FARC Guerrilla Group to attain a durable and stable peace in the long-lasting Colombian armed conflict. The peace negotiations that began in August 2012 in Cuba concluded with a definitive and far-reaching accord signed in September 2016, as it was reported in this blog. The implementation of some of the agreement’s components implies manifold constitutional amendments. To illustrate the point with just one case, one of the crucial elements of the accords was the institution of a new “Peace Jurisdiction” in charge of prosecuting the most serious crimes committed during the conflict. However, the establishment of this new jurisdiction required a constitutional amendment to modify the judiciary’s structure.

Both the government and FARC also agreed that the ordinary procedure to amend the Constitution was very burdensome and could delay and threaten a quick agreement’s execution. Consequently, Congress passed a constitutional amendment by which it diminished the procedural requirements to approve the amendments aimed at implementing the agreement. More specifically, this “fast track” procedure (1) reduced the number of required debates to pass an amendment from eight to four; (2) granted wide powers to the government in the amendment procedure — the government is in charge of introducing “peace amendments” to the Congress, but Congress cannot modify the proposed text unless there is a previous governmental approval; and (3) assigned to the Constitutional Court an ex officio judicial review of all constitutional amendments passed by means of this “fast track” procedure.

Considering the apparent restriction in terms of democratic deliberation brought by the “fast track” amendment, it also provided that this abbreviated procedure to amend the Constitution would be activated only if there was a “popular endorsement” to the agreement.  Pursuant to this rule, President Santos called a plebiscite — which took place on October 2, 2016 — but a slight majority of the voters rejected it by a narrow margin.

As a consequence, Santos decided to renegotiate the agreement with FARC in order to include some of the main stances held by the political sectors that promoted the agreement’s rejection. In November 2016, the parties settled on a new agreement although opposition leaders claimed that Santos was eluding the popular will because the accords’ changes were superficial and did not reflect the true motivations of the people’s rejection in the plebiscite. Despite this, Santos argued that the “fast track” procedure could be triggered if the Congress — as representative of the people — decided to endorse the second agreement, without any need of convoking a new plebiscite.

Judicial Review of Amendments in Colombia: From a Strict Analysis to a Soft Scrutiny in Times of Peace

From the foregoing account it is evident that the Court is a centerpiece in the legal apparatus built to implement the agreements. On one hand, according to article 241.1 of the Constitution, it has the attribution of analyzing the constitutionality of the “fast track” amendment required to speed up the implementation. Additionally, all the amendments enacted using the “fast track” procedure will be automatically reviewed by the Court. As long as the “fast track” amendment and the subsequent “peace” reforms aim to crystallize some of the agreement’s essential components, it is reasonable to conclude that the Court might either halt or facilitate their implementation depending on its decision pertaining the constitutionality of the amendments.

From a strategic approach, presumably the Government would be interested in a more lenient judicial review of the amendments to guarantee the smooth application of the agreement. However, these preferences were at odds with a stricter judicial stance adopted by the Court since 2003. The Constitution of 1991 originally provided that the Court had the attribution of conducting judicial review of constitutional amendments based only on procedural grounds. In this sense, from 1992 to 2003 the Court maintained that an amendment was compatible with the Constitution if it had been passed in accordance with the procedural requirements regardless of its content.

Nevertheless, this lenient procedure-based scrutiny was abandoned in 2003. In one of its landmark cases, and closely following the Indian Basic Structure Doctrine, the Court held that although the Congress may amend any constitutional provision, this does not mean that it is entitled also to destroy or replace the constitutional identity which, in turn, is composed by certain essential implicit elements which are identified by the Court in each case. From this follows that Congress must not only comply with the procedural requirements when modifying the constitutional text, but it also cannot supersede essential pillars of the Constitution. Any “amendment” that derogates this basic constitutional structure, is deemed an ultra vires act: the Court ruled that only the people (as sovereign power) might destroy their Constitution’s identity. Thanks to this new doctrine, the Court has been able to curb the congressional amendment power. For instance, it has struck down at least five constitutional amendments such as the one that tried to allow a third presidential term or another one that gave some extra points to temporarily appointed public servants, so that they could have a slight advantage over private citizens when applying to a permanent public position.

In light of this, several columnists (here and here) feared that the strict application of the Court’s theory would mean the annulment of the “fast track” amendment. Additionally, FARC commander announced that without “fast track”, they would return back to the mountains presumably to restart their warfare operations. Even the President explicitly asked the Court to uphold the amendment right after receiving the Nobel Peace Prize: he argued that any delays in the accord’s implementation might endanger the fragile ceasefire. Therefore, in his opinion, the “fast track” was absolutely necessary to avoid such scenario.

In this context, the Court endorsed the amendment’s constitutionality and also deferred to Congress to determine whether the “fast track” procedure could be activated despite the popular rejection of the agreements in the plebiscite. Echoing the proposal of a prominent Colombian Constitutional Law Professor, the Court lowered the level of scrutiny given the historical juncture: it concluded that the amendment did not replace any essential feature of the Constitution. This is so because the Court considered that Colombia is in a transitional process to attain peace which, in turn, is a compelling end. In this sense, the amendment procedures could be reasonably lowered to recognize such reality. After the Court’s decision, there was a relative consensus among constitutionalanalysts, that the constitutional analysis deployed in this case had been less harsh than the one used in previous cases.

Peace as Constitutional Dismantlement?

This gradual relaxation of the level of scrutiny probably is not the end of the story. Perhaps even this more indulgent perspective was not enough for the governmental preferences associated with an expedited implementation of the peace agreement. In effect, the “fast track” amendment — passed by the Congress and supported by the executive branch — established that even though the Court was entitled to develop a judicial review of the peace amendments approved by means of this abbreviated procedure, it also provided that the scope of this review was restricted “only” to procedural grounds. This provision could be interpreted as the government’s desire to return back to the pre-2003 scenario in order to assure that the Court, and its replacement theory, will not be an insurmountable obstacle to implement the accords.

Ultimately, the Court will have the final say when the first amendments enacted under the provisions of the “fast track” procedure are submitted to the Court for their constitutional analysis. But, in any case, the constitutional dilemma is served: will the Court renounce the doctrine that allowed it to prevent the Constitution’s defacement by striking down the amendment that permitted a third presidential term? Or, on the contrary, will the Court protect the Constitution’s essentials even over the need for a swift implementation of the peace agreement?

Vicente F. Benítez-R. is a Constitutional Law Professor at Universidad de La Sabana (Colombia)