Amendment by Other Means: Informal Change and the Replacement Boundary in Indonesia, Colombia, and India

Abstract

Comparative scholarship draws the boundary between constitutional amendment and constitutional replacement almost exclusively around formal amendment, while treating judicial interpretation, conventions, organic statutes, and desuetude as separate and largely benign channels of informal change. This article examines Indonesia, Colombia, and India through a normative-comparative analysis of their constitutional texts, constitutional court and supreme court decisions, implementing legislation, and parliamentary practice from 1973 to 2025. It finds that the amendment–replacement boundary is policed asymmetrically. Indonesia has not used its amendment procedure since 2002, and the resulting amendment atrophy has displaced the work of constitutional change into the Constitutional Court, the legislature, and the practice of state organs, culminating in a 2025 decision that separated national and local elections in terms the text does not easily bear. Colombia’s Constitutional Court polices the boundary rigorously against Congress through its replacement doctrine but applies no comparable discipline to its own interpretive transformations. India has gone further, entrenching a judge-made appointments practice against a formal amendment adopted through the prescribed amendment procedure. The article advances the concept of informal dismemberment: a change produced outside the amendment procedure whose effect, if pursued formally, would require constituent rather than amending power. It proposes a channel-neutral test built on three criteria—textual displacement, cumulative aggregation, and self-regarding authorship—and argues that the replacement boundary protects constitutional identity only when it binds every author of change, courts included.