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In 2002, Alvaro Uribe Velez, the 39th President of Colombia was first elected to the presidency. At that point in time, the Colombian Constitution of 1991 prevented the re-election of any president. However, in 2004, Uribe, with the help of supporters in the Colombian Congress was able to pass a constitutional amendment allowing him to run for a second term. After running and winning the second term, Uribe attempted to call for a referendum to amend the [Congress of Colombia|Colombian Congress]] again and allow him to run for a third term in 2010. However, in 2010, the Constitutional Court of Colombia declared the proposed referendum unconstitutional because the constitutional reform it was trying to implement would constitute a full or partial substitution of the Constitution. For this reason, President Uribe was unable to run for a third term in Congress

Substitution of the Constitution Doctrine

The Substitution of Constitution Doctrine is formulated around the idea that a person, party or entity seeking a constitutional reform may only propose a reform that changes the existing constitution and is not a significant enough reform to replacing it with a new one. The Colombian Constitution, in Article 374, states that the Constitution may be reformed by Congress, a Constituent Assembly or by the people through a referendum. New legislation must not allow for certain constitutional changes to be so fundamental it results in the formation of a new constitution entirely. In the Constitution of 1991, there are no current clauses that are expressly unmodifiable, but this doesn't mean that there are no limits for constitutional reform. Currently, the only method for passing an amendment without any limitations is to invoke a Constituent Assembly, according to Article 379 (not the Congress or through a referendum). This Constituent Assembly would then have the power to implement amendments that would be considered significant enough to replace the existing constitution for a new one which is not possible under usual constitutional amendment process.

This doctrine is currently a very important tenet in Colombian law and precedent for determining the constitutionality of proposed reforms to the Constitution. It was a strong focal point during President Alvaro Uribe's attempts to amend the constitution to allow for second and third terms in the presidency in 2006 and 2010. The Court’s first judgement fully establishing the substitution of constitution doctrine was the 2003 Decision C-551 which dealt with a series of 18 distinct questions in a referendum which attempted to reform the Colombian constitution.

Decision and Court Case C-551 of 2003: Establishment of Substitution of Constitution Doctrine

Article 378 stipulates that with the initiative of the government or the citizens, a bill of “constitutional reform” may be submitted to a referendum where the voters will be able to choose from an agenda of various items for which they approve or disapprove of. Constitutional reforms may be approved if greater than half of the voters vote affirmatively. President Alvaro Uribe, after his inauguration in 2002, submitted a bill to Congress with a referenda that included 18 distinct questions. Eventually, Congressed passed the law which addressed several topics including the modification of the electoral system, reduction of state expenditures, and about 16 other topics.

Article 241 of the Constitution generally limits the Constitutional Court to reviewing laws that amended the Constitution "exclusively for errors of procedure in their convocation and implementation". While evaluating the distinct questions asked in the above referenda, they noted that some questions had procedural issues while other questions had more substantive issues, which included questions that sought to reduce the size of Congress and modify the system of election law. The Court had to evaluate whether these questions hindered the will of the voter which forced the Court to consider whether the Congress had the competency to carry out the amendments proposed in the referendum and whether the referenda proposed would not overreach what a constitutional reform could achieve, one of the first examples where the Court extended past solely reviewing the procedural makeup of referenda.

In their final decision, the Court defined two distinct terms to help clarify what powers that the public and the legislators had when trying to propose a constitutional reform. The first of these terms is the original constituent power, which is defined to “lie in the people, who preserve the power to give themselves a Constitution” and is not subjected to legal limits. Essentially, it emphasized that the ability to completely replace the constitution lay in the power of the people rather than the processes defined by the Constitution. On the other hand, the derivative constituent power, or power of reform, uses paths defined by the Constitution itself to bring out reform in the Constitution. Since it is directly defined by the Constitution, it “lacks the power to destroy the Constitution” and is only limited to revising the same. The Court, in its decision, then went on to state that the derivative constituent power “cannot carry out a substitution of the Constitution not only because it would then become an original constituent power," further emphasizing that the derivative and original constituent powers have clearly defined boundaries. Through Court Case C-551, the Constitutional Court established that they had the power to determined whether the substance of a referendum stayed within the limits of the derivative constituent power, which is something that had not been expressly stated as a power of the Court.

Even though the constitution does not, in any of its articles or the Preamble, specify any unmodifiable clause, there are expressly stated limits to reform based on this definition of what a derivative constituent power can and cannot achieve. As the Court states, the “power of reform does not include the possibility of derogating [the Constitution], subverting it or substituting it in its integrity”. In Decision C-551, the Colombian court heavily considered whether any of the proposed reforms in the referendum constituted a substitution of the constitution, which jumpstarted the creation of the substitution of the constitution doctrine in Colombia, a doctrine that had not been expressly declared in the Constitution up to this point. The precedent set in Decision C-551 for the material limits of constitutional reform would later play a significant role in understanding key decisions behind the 2006 and 2010 re-election proposals set by President Alvaro Uribe as well as in future court cases that dealt with understanding constitutional reform and the limitations of amendments to the Constitution.

2006 Re-Election of President Uribe

Since the ratification of the 1991 Constitution, presidential re-election had been expressly forbidden in Article 197. However, halfway through President Uribe’s presidency, seeing the high levels of support for Uribe, a group of members of Congress presented a constitutional amendment that would allow for presidential re-election. The bill was approved by 113 to 16 in the House of Representatives after intense debate in both houses as some lawmakers were worried that the amendment would give presidents too much power.

On May 14th, in 2004, a couple of months before the bill was officially approved by the House of Representatives, its passage in the lower house was interrupted when 60 of the 172 lawmakers left the chambers and returned with their mouths taped shut in a symbolic gesture, constituting a boycott of the legislation since only 16 representatives voted against the legislation. As of December 2004, about 80% of Colombians were said to have supported the constitutional amendment. However, it is clear that many Colombians, and especially opponents of Uribe, had significant concerns about a presidential overreach of power with a re-election.

Decision and Court Case C-1040 of 2005: Constitutionality of Legislative Act to Allow for Second Term

On October 20th, 2005, the Constitutional Court ruled that Uribe could stand for re-election, overturning the single-term limit. They expressly stated that only a single re-election was allowed, allowing Uribe to run for a second term (which he eventually won and took office for the 2006-2010 election). In detailing their decision for the allowance of a presidential re-election, they relied heavily on the aforementioned substitution of the constitution doctrine in determining whether the amendment was constitutional.

This court case examined the constitutionality of the above described legislative act that was introduced to Congress in order to enable the re-election of the president for an additional term. A main focal point of this court decision was to understand whether this amendment constituted a substitution of the constitution. According to the Court, the responsibility of determining whether a defining core element of the 1991 Constitution has been replaced through the amendment lies on the Constitutional Court. To prove that a subtitution of the constitution had occurred, they must be able to clearly identify that core element, show why it is an essential and defining principle for the Constitution, show that it cannot be reduced to a specific constitutional article, and prove that the proposed amendment is so incompatible with this defining element that it constitutes a partial or complete rewriting of the constitution.

The Court decided that there was no core defining element constitution that was substituted or replaced by the amendment. In their decision, they stated that even with a re-election process, “the people will freely decide who to choose as president, institutions with powers of control and review will continue to have full authority, the system of checks and balances will still operate, … and the acts to be adopted as still subject to judicial review so as to guarantee respect for the social state of law”. While some were worried that this amendment would concentrate the power in one person and affect the separation of powers, a claim that also came up in the 2010 Re-Election Proposal, these worries only really represent fears that the president will abuse his power, rather than a real criticism of the amendment itself or the process of re-election. The Court went further to state that while those opposed to the amendment claim that this amendment will modify the Colombian political system in a way that the democratic nature of the Colombian state will be damaged, there are many examples in comparative law to suggest that a mechanism for reelection in no way implies a non-democratic state.

2010 Attempted Re-Election of President Uribe

After winning re-election in 2006 and serving his second term, Uribe remained very popular and in 2009, members of Congress began collecting signatures to call for a public referendum whose sole purpose was to allow for an additional re-election of the president and extending presidential term limits by one more term. This was different from legislation passed in to re-elect Uribe in 2006, since that was an amendment proposed by Congress, not through referenda. In September 2009, Colombian lawmakers passed a bill allowing Uribe to seek a third consecutive term with eighty-five in favor and five opposed to the bill. Similar to the re-election proposal in 2006, many were concerned that the president was once again overstepping his presidential powers by campaigning for a third term and the proposed legislation went to the Constitutional Court for review.

In the determination that the proposed referendum would in fact lead to a substitution of the constitution, the Court noted several irregularities and controversies involved with the Uribe's 2010 re-election attempt before making its final decision. These controversies included improper delegations of campaign funding, an irregularity where the text of the law that would have been voted on was different from the version approved by the Colombian Congress, and where legislators would change their political affiliation to approve the law. These irregularities were taken into account when determining whether the referendum constituted a substitution of the constitution.

Decision and Court Case C-141 of 2010: Constitutionality of Referendum Allowing for Third Term

Once again, similar to the Case C-1040 in 2006, the Constitutional Court had to determine whether the amendment proposed formulated a partial or total substitution of the constitution. One significant difference between the 2006 proposal for re-election and the 2010 proposal was that the Constitutional Court was investigating legislation passed by Congress in 2006 and in 2010 they were investigating a referendum that would allow the people to determine whether re-election was possible for a third term, which are both defined as methods by which the constitution can be amended. Some argued that this referendum was an example of "original" or "primary constituent power" because it was initiated by citizens rather than the government. However, despite the fact that the people are the ones who would ultimately amend the constitution, a referendum is still considered a manifestation of derivative constituent power according to the Court. In addition, for the Court, the intervention of Congress in crafting the referendum left serious doubts whether the public is acting like an original constituent power. For this reason, the constitutionality of the referendum depended on whether the referendum had the possibility of introducing a significant enough change to replace a core defining element of the constitution.

The Constitutional Court eventually decided that, looking at the experience of other countries with strict presidential systems, going beyond an 8-year term limit has “serious risks of perversion of the regime and of the structure defined by the constituent power”. The Court analyzed the president’s role within a number of institutions to determine whether serving three terms would give the president an unreasonable amount of power. Their claim is that lengthening the presidential term of twelve years will allow the president to have an extended influence in the executive and legislative branches since all members of Congress get re-elected every four years as well as an extended influence in independent departments such as the Bank of Republic and National Television Commission. With presidential terms lasting longer than the terms of the heads of these individual departments and legislative bodies, the president would have control over personnel replacements in certain departments which would lead to overreach of the executive branch. In this sense, having a twelve-year presidency would severely limit the checks and balances possible within the government.

The Court, in this case, also sees an obstacle with this amendment when considering the rights of the voters and the necessity of equality between candidates who are running for the presidency. To the Court, the advantage of serving for eight years as president allows that candidate to have more” negotiating power and higher political recognition” than their counterparts who are running for their first term, creating a vicious cycle where the person who has been in power the longest has a significant advantage in retaining and consolidating their power. This directly affects the constitutionally-protected right of having a truly free election since an environment is created where voters cannot develop an objective understanding of each candidate’s proposals and policies.

Overall, the reason why the Constitutional Court classified this proposal from Congress as a substitution of the Constitution is because it threatens the voters’ rights to a free and equal election and also threatens the set of checks and balances laid out in the constitution to prevent a situation in where there is a concentration of power in the executive branch. A third term would involve a “breakdown of constitutional order” and would substitute multiple axes of the 1991 Constitution. The proposed referendum was then declared unconstitutional on the basis of the substitution of constitution doctrine with a 7-2 majority vote which President Alvaro Uribe accepted gracefully.