Petrificando la rama judicial en Colombia: autointerés judicial y control de constitucionalidad inapropiado de reformas constitucionales a la justicia

Abstract

Abstract This article analyzes the judicial review of constitutional amendments aimed at modifying the judiciary in Colombia. It holds that when the Supreme Court of Justice (under the previous Constitution) and the Constitutional Court (under the Constitution currently in force) have quashed acceptable amendments to the judiciary, they have probably exercised such a review in a self-interested way, that is, in a non-impartial manner. Building upon the notion of “inappropriate judicial review,” the article argues that this potential lack of impartiality deepens traditional objections associated with judicial review of amendments (like democratic, interpretive and petrification issues) and undermines courts’ credibility before public opinion, thus risking their independence. After diagnosing this constitutional pathology and showing it has spread to some other jurisdictions, this research suggests that judicial review of amendments should continue in place to neutralize abusive constitutional changes. Nevertheless, regarding reasonable amendments to the judicial branch, it proposes a set of institutional and behavioral alternatives that could help mitigate the difficulties that underly a judicial scrutiny of a constitutional amendment that impacts the judges in charge of such a scrutiny.