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Estudios constitucionales

On-line version ISSN 0718-5200

Abstract

SILVA, Luis Alejandro  and  CONTRERAS, Fernando. The Constitution Replacement doctrine in Colombia. Estudios constitucionales [online]. 2020, vol.18, n.1, pp.395-434. ISSN 0718-5200.  http://dx.doi.org/10.4067/S0718-52002020000100395.

The Colombian Constitutional Replacement Doctrine has been created by the Constitutional Court in order to review whether amendments to the Constitution are substantially constitutional or not, despite the fact that the Constitution prescribes that such a review is circumscribed to procedural defects in its creation only. In this article we present the Replacement Doctrine, its background and the premises on which it is built. We then provide a critique. On the one hand, the critique aims at the theoretical inconsistency of the doctrine, both from a logical and legal perspective. On the other, it points out the implications the doctrine has within the separation of powers structure. The critique emphasizes how problematic the position taken by the Constitutional Court as an arbiter of Colombian politics is. Also, it underscores how the doctrine distorts the principle of constitutional supremacy and the legitimate field of autonomy of the political.

Keywords : Constitution supremacy; constitutional amendment; government by the judiciary.

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