Constitutions, Courts, and the Quest for Transitional Justice

Abstract

This chapter addresses the way past human rights violations can be dealt with in countries where authoritarian regimes leave behind a constitution imposed as the “price” for democratization. After analyzing the concept, goals, and elements of transitional justice, the piece then investigates the relationship between constitutions, courts, and transitional justice by focusing on the case of Chile, a country that, in spite of the constitutional constraints it faced, experienced a rather successful transitional justice process (with many truths revealed, much punishment imposed on the perpetrators, and a reasonable degree of reparations to the victims achieved). Chile’s case suggests that in places where the introduction of a democratic constitution appears unfeasible, the role of courts can be crucial in delivering justice, especially when they engage in a “strategic adjustment” to a new democratic context and to unilateral executive decisions aimed at addressing past human rights wrongs.