Legitimacy of the substitution test carried out by the Constitutional Court: an alternative proposal

Abstract

Carlos Bernal Pulido, a former judge of the Constitutional Court at the conference on 'Dialogues with the world'' since 2011, has pointed out that the Constitutional Court, following judgments C - 551 of 2003 and C - 970 of 2004, under the pretext of being the supreme guardian of the 1991 Constitution, created the legal form of the Substitution Test to extend the powers granted by Articles 241 and 379 above, allowing a fundamental review of the reformatory acts of the Constitution to avoid replacing the 'defining axes' of the Political Charter and thus distorting the spirit that the primary constituent wanted for it, incurring three errors: a) An error of substantiation, in that the competence attributed lacks constitutional support; b) An error of meaning, in that there is a lack of conceptual clarity in relation to the ' because the competence of the branches of public power is abruptly interrupted. However, in order to propose a solution to the problems described, Carlos Bernal Pulido offers resolute postulates, which unfortunately suffer from the same errors as the Original Substitution Test of the jurisprudence of the Constitutional Court, and, consequently, they will be reviewed in this article and an alternative solution will be proposed that respects the principle of separation of powers and deliberative democracy, especially when Colombia is a social and democratic State governed by the rule of law.