“Political transition does not always come with vindications of justice.” So notes Professor Cheng-Yi Huang in his Introduction to a thoughtful edited volume entitled Constitutionalizing Transitional Justice: How Constitutions and Constitutional Courts Deal with Past Atrocities.
The collection is the product of a 2016 conference held at Academia Sinica in Taiwan. The aim of the conference was a comparative evaluation of constitutional justifications of transitional justice, as a prelude to the 2018 establishment of the Transitional Justice Commission of Taiwan (“the Commission”). That Commission culminated in the first national report on alleged war crimes committed during the post 1945 authoritarian regime in Taiwan. The conference was hosted by the Taiwan Association for Truth and Reconciliation and the Taipei Bar Association and arguably influenced the discussions leading up to the establishment of the Commission.
In this collection Professor Huang has gathered together an impressive array of international scholars, advocates, and legal practitioners who have stellar reputations in the fields of constitutional law and transitional justice. For example, included are Richard Goldstone, former Justice of the Constitutional Court of South Africa, and the first Prosecutor for the International Criminal Tribunal for Yugoslavia, Professor Vicki Jackson, eminent Harvard constitutional law scholar, Professor Javier Couzo, a leading figure in Chile on transitional justice and constitutional law, and several others. Together they contribute compelling perspectives to the issue of transitional justice and constitutions in their respective locales.
The volume is divided into three parts. The first part analyzes the constitutional foundations of transitional justice; the second part explores the judicial interpretation of constitutional processes that give rise to the idea of transitional justice; and the third part examines the constitutional consequences or impact of transitional justice. In each chapter the authors address two major questions, namely: [1] Does the inclusion of transitional justice clause in a constitution foster a political culture of trust and reconciliation in a new democracy? [2] Do constitutional courts play a more critical role than a constitution in the success of transitional justice?
Embracing an expansive geographical scope, with issues emanating from Taiwan to South Africa, Chile, the United States, Poland, and other jurisdictions, the book is a useful global compendium of questions relating to constitutions, constitutional courts and transitional justice. In Part 1 the authors engage with the constitutional origins of transitional justice. The first chapter in that section, authored by Justice Richard Goldstone and entitled, The Dilemmas of Transitional justice and the South African Experience, examines the transitional period in South Africa and especially it’s much admired Truth and Reconciliation Commission. Justice Goldstone emphasizes how critical the constitutional entrenchment of transitional justice was in moving South Africa from a system of apartheid and authoritarianism to one predicated on human rights and dignity for all. This entrenchment was particularly meaningful in the face of a challenge to the amnesty provisions of the Truth and Reconciliation Commission (TRC) by family members of victims of the apartheid-era crimes. The Constitutional Court concluded that the mandate of the TRC was constitutional and therefore the amnesty provisions could be justified. In essence, the Court recognized that in its deliberations it had to recognize the injustices of the past and to “honor those who had suffered for justice and freedom” in South Africa, as required by the Preamble to the Constitution.
According to Justice Goldstone, the goal of transitional justice should not be about the pursuit of revenge, but rather about bringing societies together. He recognized the enormity of the task in transitional societies in the wake of longstanding political oppression and violence. Despite this, he believes that constitutions should enable a vigorous right to excavating the truth and to finding approaches to reconciliation for its peoples. Absent such a commitment, the project of transitional justice would be incomplete, unsettled and frequently contested.
South Africa’s approach differs somewhat from that which pertained in Hungary during their transition to democracy after 1989, where the continuity of the legal system was retained. As Dr. Christa Kovacs explained in her chapter entitled, Facing the Shadows of the Past During Transitions: The Role of the Constitutions in the Case of Hungary, this continuity resulted in the inability of the newly established Constitutional Court to fully grasp its role in dealing with past atrocities, as the South African Constitutional Court had done. It’s role seemed to be confined to reiterating the broad principles of liberal democracy and adherence to the rule of law as an abstract concept. Dr. Kovacs demonstrates how, because of the lack of constitutional grounding in transitional justice, the Court struck down attempts to hold perpetrators of crimes against humanity during and after the 1956 Revolution criminally liable. So too the Court held as unconstitutional laws that would have permitted the disclosure of personal information of perpetrators, citing privacy protections under the constitution. Dr. Kovacs points out that the Court was motivated by the need for legal certainty, the prohibitions of retroactive application of the law and deference to the statute of limitations. Dr. Kovacs locates the ultimate success of the right-wing parties in Hungarian national politics as a response to the uncertainties created around transitional justice, as evidenced by the 2013 Amendments to the Fundamental Law. These amendments permitted the conservative government to promote a historical narrative that sharply constrained the ability to deal constructively with transitional justice and the unfinished business of past atrocities and historical injustices.
The third chapter, authored by Professors Cheng-Yi Huang and Yi-Li Lee and entitled, Constitutional Divergence and Transitional Justice in South Korea and Taiwan, explores the processes of democratization in South Korea and Taiwan, offering the differing approaches taken in the two countries. Whereas South Korea revised its constitution after political negotiations between the military and opposition groups, Taiwan chose to retain its 1947 constitution, with only minor amendments made to the document in the 1990s. The two countries also diverged in their approach to transitional justice. 1n 1990 South Korea attempted – unsuccessfully – to bring to justice the perpetrators of gross violations of human rights committed a decade earlier during the 518 Movement. The Constitutional Court of South Korea found that the statute of limitations nullified their application, but after passage of the 518 Special Act in 1995, the claims of victims were vindicated.
In Taiwan, on the other hand, even though the Constitutional Court in 1991 upheld the constitutionality of legislation promulgated after the lifting of martial law, which prohibited political prisoners from appealing their cases in the ordinary courts, in 2016, that same court found constitutional the confiscation of property from the prior authoritarian government. In its reasoning the Court found that this confiscation to be a legitimate response to the appropriation and misuses of government funds during the period of authoritarianism from 1949 to 1991. The authors argue that in both countries the constitutional courts were responding to popular support for transitional justice, even though transitional justice mechanisms were not included in the constitution. This was the court inferring the legitimacy of transitional justice in the absence of explicit reference to it in the text of the constitution.
In the second part of the volume, the contributors examine the role of constitutional courts in the pursuit of transitional justice, with a special focus on Central Eastern Europe and Latin America. In the first chapter in that section, Constitutional Justice and Negotiated Peace in Colombia, Professor Sanchez Leon argues that under the “umbrella” of transitional justice, the Colombian government has implemented effective strategies to end the half-century-long conflict between the government and several guerrilla groups. The goal was to demobilize combatants and to guarantee rights for the victims of the conflict. These twin goals earned Colombia a favorable international reputation for its successful peacebuilding. Despite the global praise, these goals have sometimes been in tension and Professor Sanchez Leon explores the ideological differences that have surfaced between various sections of Colombian society and the resulting constitutional debates. He argues that the Colombian Constitutional Court has been able to position itself as a key player, by adroitly navigating the constitutional controls that would permit political negotiations but not sacrificing the rights of victims. Professor Sanchez Leon is nonetheless concerned that the constitutional controls pose risks to both the Court’s long-term legitimacy as well as the functioning of the transitional justice mechanisms set in motion during the peace process.
In the next chapter, still in Latin America, Professor Javier Couso, in Constitutions, Court, and the Quest for Transitional Justice, examines Chile’s transition to democracy in the wake of the Pinochet era of authoritarianism and state violence. As Professor Couso points out, Chile is a particularly interesting case, since the transition to democracy there took place under constitutional and political terms established by the departing authoritarian regime. However, despite this seeming impediment to comprehensive and impactful transitional justice mechanisms (as, for example, in South Africa), Chile has in the past few decades exceeded expectations in the way that it dealt with the legacy of gross human rights violations. For Professor Couso, a key question is whether getting a new constitution is necessary for the process of transitional justice and redressing past wrongs.
Professor Couso compares the legal formalist stance and the deferential role of the Chilean Supreme Court during the Pinochet dictatorship, to the Court’s reversal of this formalist approach when it interpreted the 1978 Amnesty Law to permit victims to pursue claims against perpetrators of human rights violations. Professor Couso points out how the changing composition of the judiciary combined with popular sentiment in society pushing for accountability, led to the judiciary reversing its deferential approach. These developments were particularly pronounced after the arrest of General Pinochet in the United Kingdom, which provided a significant jurisprudential shift towards greater accountability.
In Cordinated Transition in East-Central Europe and the Role of Constitutional Courts in Transitional justice: Experiences from Hungary and Moldova, Dr. Gabor Attila Toth uses the case studies of Hungary and Moldova to evaluate the performance of constitutional courts in the third wave of democratization. In particular, he examines the nature and type of constitutional disputes that emerge during the transitional period from authoritarianism to democracy. As Dr. Toth points out, whereas the typical menu of constitutional courts during transitional periods includes disputes related to truth and reconciliation commissions and processes, retroactive punishments, access to archival materials, and the like, the Constitutional Courts of Hungary and Moldova had to confront questions around the death penalty, the status of religions, and official languages.
At first glance the Hungarian Constitutional Court showed promising signs to its approach to transitional justice. Referring to Hungary’s oppressive past, the Court embraced an international human rights approach, resorting to the right to dignity and life to outlaw the death penalty. But despite its embrace of an international human rights approach, the Court created its own limitations by adopting a more formalist approach to the rule of law, and would not permit the retroactive punishment of perpetrators, a key process of transitional justice. The Court also seemed to bestow favorable treatment on certain traditional religions, permitting them an entitlement to property restitution, while at the same time shielding religious leaders from disclosure of their roles during Hungary’s authoritarian period. Dr. Toth concludes that, at least in East-Central Europe, the problems of transitional justice are “wider and more complex” than the standard transitional justice cases. He also argues that there is no single legal explanation as to why democratic transformation in those societies was often incomplete and that explanations for their lack of success go beyond the structure and design of constitutions and constitutional courts.
Rounding up this section, Professor Maril Zubik, as a Judge of the Polish Constitutional Tribunal, has a particular insider perch in his chapter, The Determinants of the Polish Transformation at the Turn of the 21 st Century: In View of the Judgments of the Constitutional Tribunal of Poland. Noting that despite the Polish people retaining control of their country post-1989, the continued legacy of communism lingers. Referring to the transitional period as “evolutionary gradualism” he highlights how Poland’s transitional period differed somewhat from South Africa and Rwanda. In essence a delicate balance was struck between continuity and restructuring with respect to state institutions. In time the Polish Constitution of 1997 permitted a slew of transitional justice cases to be brought before the Constitutional Tribunal, which had been established by the communist government but was slow in reckoning with transitional justice. This slow evolution was a consequence of the retirement of communist era judges and a reinvigorated Parliament with newly elected opposition party members. Professor Zubik concludes that because the first post-communist political leaders did not fully grasp the mantle of transitional justice, this may permanently thwart the capacity of Poland to deal constructively and comprehensively with its communist past.
The third part of the book volume with the constitutional consequences of transitional justice. In their chapter entitled Transitional Justice in a 19 th Century Constitution: Cautionary Observations from the United States, Professors Vicki Jackson and Harry Larson turn their spotlight to a much older period of transition in American history in the aftermath of the civil war in the late 1860s. They argue that the 13th, 14th and 15th amendments to the US constitution, aimed at righting the wrongs of slavery especially regarding the right to vote and citizenship, were clearly transitional justice mechanisms. Focusing on the 14th Amendment, which provides, among others, for birthright citizenship, equal protection of the laws and due process, Professors Jackson and Larson highlight how the intention and understanding of the amendments initially came to be undermined through political processes, but several decades later were utilized in ways that were meant to support those who were descendants of the previously enslaved.
In her chapter, “Cadres” in Post-Communist Transition: Shifting the Loyalty Standards in Public Service after Regime Change, Professor Anna Sledzinska-Simon examines the challenges posed for the political legitimacy of the new democratic governments in Eastern Europe and restoring faith and credibility in their public authorities. She interprets the functions of dismantling the former communist bureaucracies as both moral and pragmatic, but which must be predicated on rule of law principles.
In the final chapter in the volume, Between Blaming and Naming: Constitutional Review of Bans on Communist Parties in Post-Soviet States, Professor Alexi Trochev examines how the concerns with blaming and naming those who perpetuated gross human rights abuses during the Soviet era dominated the space of transitional justice in those societies. He explores the possibilities and the limitations of post-Soviet constitutions and courts in transitional justice, by highlighting the role of elites in driving transitional justice processes and policies, often usurping the role of courts in determining bans on communist parties, prosecution of communist officials and redress for the victims of Soviet-era atrocities. He highlights how the courts in Russia, Ukraine and Moldovia institutionalized these limitations, a development that he believes requires change. His conclusion is that the relationship between the state and society must be altered if constitutions and courts are to play a meaningful role in dealing with the ravages of the Soviet-era past.
The publication of this volume comes at a challenging time in transitional justice. Those who pursue the various goals of transitional justice, whether those goals are peace, reconciliation, truth, or justice, understand that the project is both backward and forward looking. An excavation of the past is a precondition for securing a just and peaceful future. The global political and legal developments currently unfolding suggest that the groundwork is being laid for substantial labour for future scholars and practitioners of transitional justice. This volume, with its comprehensive global and interdisciplinary approach, makes a notable contribution to the project of transitional justice and should be required reading for those who continue to believe in what the Universal Declaration of Human Rights notes are the inherent dignity and inalienable rights of all.
