Associate Professor Carlos Bernal
Associate Professor Carlos Bernal

Transitional Constitutionalism and the Peace Agreement in Colombia

On Wednesday 24 August 2016, from Havana Cuba, delegates of Colombia’s government and leaders of the Revolutionary Armed Forces of Colombia reached an historic peace accord to end their half-century civil war. The Colombian people will vote on the agreement, which will lead to the demobilization of one of the few remaining guerrilla units on the planet, in a referendum on 2nd October. If approved, the Constitutional Court will review the conformity of the agreement to the 1991 Colombian Constitution, and to the major International Human Rights treatises signed by Colombia that, in virtue of Section 93 of the Constitution, are binding to all government authorities.

Some of the special concessions to the guerrilla members included in the agreement  – such as: lenient criminal sanctions, amnesties, the waiver of some obligations to repair the victims, and special quotas in the Parliament – are in strong tension with the Constitution. This tension leads to a dilemma: if the transition to peace is successful, then the Constitution is infringed; if the Constitution is infringed, the transition is rendered impossible.

In “Transitional Justice within the Framework of a Permanent Constitution: On the Role of the Constitutional Court in the Colombian Transition”, an article published in 2015 in the Cambridge Journal of International and Comparative Law, Carlos Bernal, an Associate Professor at Macquarie Law School, suggests a solution to this dilemma: the Constitutional Court should undertake the review of transitional justice measures, such as the strategies adopted in the peace agreements, by balancing the degree of infringement of constitutional principles, on the one hand, with the degree of satisfaction of relevant transitional justice goals –creation of the conditions for permanent peace, strengthening an inclusive democracy, revelation of truth, reparation to victims and realisation of justice–, on the other. In undertaking this review the Court should take into account not only the constitutional text, but also international and transnational principles of transitional justice. Both these elements may justify some of the special concessions to the guerrilla members, in light of their potential for achieving a durable peace.

The Constitutional Court, which has quoted works by Carlos Bernal in 66 judgments, invited him to present his suggestions to judges and clerks in July 2016. In October, the Court will face the challenge of either reshaping the content of basic constitutional principles for grounding the constitutionality of the peace agreement, or strictly enforcing the Constitution and paying the price of dismissing this historic opportunity to see the end of a fratricide war.