Constitutional Advice and Transitional Justice Mechanisms in the Framework of Colombia’s 1991 Permanent Constitution

While the challenges of constitutional advice in Ghana took place in the context of constitution-making, the Colombian case is framed within the 1991 Colom­bian Constitution, which has lived through multiple transitional justice mechanisms aiming to address the Colombian armed conflict.

Spanning for over 60 years, the Colombian conflict has caused millions of victims of a variety of crimes, including forced displacement, sexual and gender-based violence, enforced disappearance, among others.^{[467] [468] Unlike other conflict contexts and despite the prolonged armed conflict and the several transitional justice processes kicked off in the country, Colombia has not experienced transitional constitutions41 as such but rather transitional constitutional provisions within a more or less stable constitutional framework. The Colombian constitutional framework has been char­acterised by permanent constitutions, which aim to preserve an organised political community in an already established form.[469] In fact, the Colombian Constitution of 1991 was only preceded by the Constitution of 1886, and emerged as part of civil society initiatives and in connection to the demobilisation process of one of the several armed parties to the conflict, the Movimiento 19 de abril or M-19, and the pardon granted thereto.}

Constitutional advice provided by transitional justice processes in the Colombian context of a permanent constitution poses a particular type of tension, considering the need to reconcile the intended transitional justice with the established constitutional order as an authoritative source of binding norms.^[471] This tension has been referred to as the transitional dilemma: on the one hand, if the transition is successful, the constitution is not permanent anymore as it will bring major political and institutional challenges that may undermine the constitution’s permanent character; on the other hand, maintaining the constitution’s permanent character might render the transition, and its mechanisms, impossible.^[472]

Consequently, the transitional justice mechanisms that have taken place in the context of the 1991 Colombian Constitution have presented a dilemma as to the constitutional advice that these processes and their relevant stakeholders have provided. Since some of these transitional processes have been intended to take place through constitutional amendments rather than a transitional constitution, constitutional advice has been provided with the intention not to radically break the existing constitutional framework,^[473] which includes the Constitutional text and a variety of international human rights instruments with a constitutional footing. In this context, additional stakeholders have been involved in the process to guarantee that this intention is upheld, such as the Colombian Constitutional Court, under the so- called constitutional replacement doctrine that it has developed to justify its power to review constitutional amendments as the ultimate guardian of the constitutional text.^[474]

It is worth mentioning that the Colombian Constitution has explicitly bestowed human rights treaties ratified by Colombia with a supra-constitutional rank, recog­nising their equal footing and as interpretative guidance concerning the constitu­tional norms,^[475] and allowing for direct judicial application.^[476] This concept, known as constitutionality block, has permitted to address the Constitution as a normative block and an ‘extended’ norm, inserting specific concepts of international law to a constitutional rank.^[477] In the case of regional human rights instruments, such as the American Convention on Human Right (ACHR), this practice has been recognised by the Inter-American Court of Human Rights (lACtHR) as conventionality control, which surpasses the ACHR to include the IACtHR’s decisions and imply they must be observed domestically.^[478] Moreover, the Colombian State has signed and ratified the Rome Statute of the International Criminal Court (ICC),^[479] and the Colombian situation was under the preliminary examination of the ICC’s Office of the Prosecutor (OTP) between June 2004 and October 2021.

The Constitutional Court has held that constitutional amendments replacing essential constitutional principles would be unconstitutional, including those imple­menting transitional justice frameworks. In general, this may render transitional justice processes invalid. To circumvent this, and while applying a balancing test, the Court has deemed that these amendments shall be constitutional insofar they are enacted consistently with the international and transnational framework for transi­tional justice.^[481] This also means that the constitutional advice provided by transitional justice stakeholders must be concordant with international standards applicable in Colombia under the constitutionality block and conventionality control.

Consequently, the Court has deemed transitional justice mechanisms as constitu­tional. Nonetheless, in practice, the constitutional advice provided by these tran­sitional justice mechanisms and relevant stakeholders has not been necessarily concomitant, leading to hindrances in their implementation. Potential incongruities and inconsistencies between the Constitutional Court, the transitional justice mecha­nisms, civil society and international stakeholders such as non-governmental organ­isations and international jurisdictional institutions, concerning the constitutional advice given in the framework of the Colombian Constitution, have difficulted the implementation of the intended transitions.

7.4.1 The Legal Framework for Peace

The Legal Framework for Peace was enacted through Legislative Act 01 of 2012, which provided for two new constitutional transitional amendments: Articles 66 and 67. The amendments reflected transitional justice mechanisms which, exceptionally in nature, would aim to facilitate the ending of the internal armed conflict, seeking to uphold non-repetition, security, and the victims’ rights to truth, justice and repa­ration.^[484] In this line, and in order to achieve its objectives, the LFP granted special powers to Congress, including the competence to give special treatment to certain illegal armed groups that were parties to the conflict, to set in place new judicial and extrajudicial procedures and mechanisms such as a truth commission, to issue a law on case selection and prioritisation criteria for the prosecution of crimes against humanity, war crimes and genocide, to determine criteria regarding the discretionary power concerning criminal proceedings,^[485] and the definition of political crimes ahead of enabling political participation for those members of armed groups.^[486]

Even though the Constitutional Court had recognised the principle of transitional justice and its implications in its constitutional judicial review of Law 975 of 2005 on the JPL,^[487] the LFP included provisions potentially clashing with some constitutional principles. For example, Article 1 of the constitutional text recognises the principle of the rule of law, envisaging strict enforcement of criminal laws and the prosecution of all crimes, thus contradicting the LFP’s prerogative concerning case selection and prioritisation against the most responsible for crimes against humanity and war crimes.^[488]

As relevant stakeholders of the transitional justice provisions enshrined in the LFP, both international institutions and civil society provided constitutional advice in this context. Consequently, and although it complied with the OTP’s case selection and prioritisation strategy regarding liability, the OTP raised concerns over an impunity gap as it could shield or hinder the establishment of criminal responsibility.^[489] For their part, organs of the Inter-American System of Human Rights (IAS), particu­larly the Inter-American Commission on Human Rights (IACHR), have stated that while prioritisation would in principle be consistent with establishing the responsi­bility of the most important leaders, the eventual renunciation of some grave human rights violations would be incompatible with State duties.^[490] Lastly, international and domestic civil society organisations also manifested themselves regarding the LFP as a constitutional amendment.

These tensions between the constitutional text and the constitutional advice provided in the framework of the LFP can be better reflected by the judicial chal­lenges to the transitional justice mechanism. The LFP was challenged at least twice by civil society initiatives and private citizens and was upheld twice by the Consti­tutional Court.^{[492] [493] Arguably, the Court analysed the constitutional advice provided by those relevant stakeholders to the transitional justice mechanism envisaged in the LFP while assessing the international and transnational legal framework for transitional justice.12 It concluded that the Legislative Act 01 of 2002 realised the object of transitional justice enough to justify its degree of encroachment on essential principles of the Constitution.[494]}

7.4.2 The Integral System for Truth, Justice, Reparation and Non-Repetition

The SIVJRNR was envisaged in the Peace Agreement reached by the Colom­bian government and Fuerzas Armadas Revolucionarias de Colombia—Ejercito del Pueblo (FARC-EP), approved by Congress on 30 November 2016. Implemented through the Legislative Act 01 of 2017, it incorporated a transitional title to the constitutional text providing for the applicable transitional normative framework for SIVJRNR. The SIVJRNR conceives a transitional justice process led by three main procedures: the Comision para el Esclarecimiento de la Verdad, la Convivencia y la No Repetition [Commission for Truth-Finding, Coexistence and Non-Repetition], the Unidad para la Busqueda de Personas dadas por Desaparecidas en el contexto y en razon del conflicto armado [Unit for the Search of Missing Persons in relation to the armed conflict], and the Jurisdiction Especial para la Paz [SJP].^[495]

Similar to the LFP, the SIVJRNR implied strong clashes with the Colombian constitutional framework.

The constitutional advice provided in the framework of the SIVJRNR was of high complexity due to its background. Constitutional advice in the context of Legislative Act 01of 2017 was mainly provided by the negotiations of the 2016 Peace Agreement, held between FARC-EP and the government, which comprised the Mesa de Dialogo y Negotiation de la Habana [Havana Dialogue and Negotiation Table]. In fact, the text of Legislative Act 01 of 2017 is based on the text of the Final Agreement, as approved by the Colombian Congress.^[501]

In this context, relevant stakeholders provided constitutional advice in different ways, particularly concerning the most controversial component of the SIVJRNR: the SJP. As part of the OTP’s preliminary examination, the OTP positively high­lighted that crimes against humanity and war crimes under the Rome Statute are not eligible for amnesty under the SJP.^[502] Notwithstanding this exclusion, the IACHR also examined amnesties^[503] and pardons for political and related offences presenting its concerns regarding the interaction between other criminal jurisdictions and the SJP, especially with respect to State agents.^[504] The IACHR also encouraged the State to strictly apply the conditions for the attenuated penalty envisaged in the transi­tional mechanisms.^[505] Civil society organisations and initiatives also expressed their concerns on the understanding of international crimes and modes of liability. Inter­national and domestic non-governmental organisations have constantly highlighted the need for the SJP framework to abide by the international normative on command responsibility, recognise the liability of third parties to the conflict, and clarify the case selection and prioritisation criteria.^[506]

As per the constitutional judicial review under the Constitutional Court, these tensions were addressed in its Decision C-674 of 14 November 2017. Even though the Court declared the unconstitutionality of several excerpts of the Legislative Act 01 of 2017, it generally declared the constitutionality of the transitional justice mechanism enshrined therein. Nonetheless, some tensions regarding the constitutional text and the transitional justice remained in relation to the constitutional advice provided, arguably hindering the initial implementation of the SIVJRNR and the achievement of its goals. These tensions included the Constitutional Court’s decision not to make compulsory the appearance of those third civil parties to the conflict, the limitations imposed to the SJP as the final instance regarding constitutional suits and concerning conflicts of competence, and the understanding of command responsibility.

The overreliance on the Constitutional Court to streamline the constitutional advice provided in the context of the Colombian transitional justice mechanisms may hamper the achievement of their goals and efficiency, in consideration of the temporary nature of the transition and its institutions. For example, while the Legisla­tive Act 01 of 2017 dates to April 2017, the sense of the Constitutional Court’s decision was only known under Press Release 55 in November 2017 while the deci­sion was published in full eight months later.^[507] This delay implied that the SJP’s Rules of Procedure and Evidence^[508] and its Statutory Law^[509] on the SJP’s procedure were published only until July 2018 and June 2019, respectively. Facing the norma­tive vacuum, the SJP’s chambers were forced to start setting out their normative framework through internal agreements, policies and work plans in order for the jurisdiction to be appropriately operational. Its Sala Plena [Plenary] published its Agreement No. 001 of 2018 in March 2018, setting out the General Regulation of the JEP to allow for its functioning.^[510] For its part, the Sala de Reconocimiento de Verdad, de Responsabilidad y de Determination de los hechos y Conductas [Chamber for the Recognition of Truth, Responsibility and Determination of Facts and Conducts] published its Case Prioritisation Methodology and Criteria in June 2018.^[511]

Constitutional advice provided by transitional justice mechanisms in Colombia have taken place in the context of a permanent constitution that allows for a broader international and regional normative block to be regarded by the Constitutional Court for its constitutional judicial review. This has entailed that not only these norma­tive blocks be observed, but also that additional stakeholders such as regional and international judicial institutions play a role in the implementation of transitional justice mechanisms through their monitoring, observation and participation as amicus curiae in the constitutional judicial review. Considering that the constitutional advice provided is often discordant, it is on the Constitutional Court to streamline it with the 1991 Colombian Constitution and its constitutionality block. In addition to being a stagnant process, the multiplicity of non-formal constitutional advisers and apparent tensions between international criminal law, international human rights law and tran­sitional justice frameworks pose challenges to the efficiency of the transitional justice mechanisms.

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