3 Cambridge J. Int'l & Comp. L. 1136 (2014)
Transitional Justice within the Framework of a Permanent Constitution: The Case Study of the Legal Framework for Peace in Colombia

handle is hein.journals/cajoincla3 and id is 1168 raw text is: DOI: 10.7574/cjicl.03.04.249
Cambridge Journal of International and Comparative Law (3)4:1136-1163 (2014)
TRANSITIONALJUSTICE WITHIN THE FRAMEWORK
OF A PERMANENT CONSTITUTION: THE CASE
STUDY OF THE LEGAL FRAMEWORK FOR PEACE IN
COLOMBIA
Carlos Bernal-Pulido'
Abstract
This article examines a dilemma facing architects of transitional justice processes
within the framework of a permanent constitution. According to the dilemma,
if the transition is successful the permanent constitution is replaced; if the
permanent constitution remains in place, the transition is rendered impossible.
The dilemma is illustrated by the 'constitutional replacement doctrine' of the
Colombian Constitutional Court, which has held that constitutional amendments
(including transitional justice mechanisms) which 'replace' essential principles of
the constitution are a species of 'unconstitutional constitutional amendment' and
are invalid. There is undeniable logic to this doctrine-a constitutional change
which degrades the fabric of a constitution by ousting its underlying principles
should require the enactment of a new constitution, rather than a process of
amendment. However, applied in a rigid fashion, doctrines of this sort render
processes of transitional justice within the framework of a permanent constitution
impossible. This in turn presents a major obstacle for both transitional justice
and constitutionalism in post-conflict societies. The recent jurisprudence of the
Constitutional Court applying the 'replacement doctrine' to the current peace
process with the Armed Revolutionary Force of Colombia, however, suggests
a middle way: transitional constitutional amendments which might trigger the
doctrine are nonetheless constitutional if they are enacted consistently with the
international and transnational framework for transitional justice, assessed by
means of a balancing test, whereas a strict syllogistic application of the doctrine
is called only for in cases of suspected 'abusive constitutionalism'. This article
analyzes and endorses the Constitutional Court's revised doctrine. The solution
presented here recognizes that, although the design of a successful process of
transitional justice is likely to 'replace' the existing constitution with something
substantially different, it should be regarded as 'constitutional' if the transitional
justice mechanisms only limit essential principles of the permanent constitution
in the degree that is required for the adopted mechanisms to achieve their goals.
The result is an internationally nuanced notion of 'transitional constitutionalism'.
Keywords
Transitional Constitutionalism, Latin America, Post-conflict Constitutions
Associate Professor, Macquarie University Law School (Sydney, Australia). I would like to
thank Jason Allen, Pablo de Greiff, and two anonymous reviewers for helpful comments and
suggestions on an earlier version of this manuscript, and Jason Allen for editing this text for
publication.
Copyright c the Author(s).
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.

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