Constitutional design as an enabler of peace: Colombia and its constitutional reform of 1991

Although not generally attributed to judicial independence per se, Colombia’s long road to its 2016 peace agreement with the Fuerzas Armadas Revolucionarias de Colombia (FARC) would not have been possible without the legitimization of an arguably unconstitutional constituent process by its Supreme Court 25 years earlier. As a rare, longitudinal study on restoring the rule of law in the midst of conflict and instability that has engendered successful outcomes, Colombia’s constitutional reform of 1991 deserves to be studied for its lessons on the interrelationships among security, peace processes, human rights, and legal and institutional reform, to include the role of the judiciary. Toward that end, this case study merges comparative constitutional theory with the constituent process to illustrate how constitution-making can be used as a platform for compromise in deeply divided societies in a way that advances democratic transition while setting future conditions for peace. Taken together, the insights illuminated by the Colombian experience represent a variation on incrementalist approaches that have been advocated in the context of democratic development in other contested environments and affirm the importance of judicial independence to ensuring the legitimacy of both process and outcomes.