Constitution-making at times of war: Lessons from Libya, Yemen and Syria

Over the past three decades, constitution-making has emerged as a key tool in peace-building processes. Scholarly debates highlight several preferences on the tension/articulation between peace-making and constitution. However, little attention has been paid to a sub-category of constitution-making in the context of violent conflicts: constitution-drafting at times of war. This paper attempts a tentative analysis of three recent/ongoing constitutional change taking place partly at war times: Libya, Yemen and Syria. It analyzes why constitution-making triggered further violent conflicts instead of re-establishing peace. In doing so, it analyzes the tension between peace-making and constitution-drafting from a process-design perspective: sequencing, timeline, public participation, approval mechanisms and institutions. An emphasis is put on the role of international actors, mediators’ in these processes. The paper concludes with tentative remarks and policy recommendation

Silences in constitutions and space for self-determination

The silences that are present in a constitution, most especially, in a constitution that is in competition with political violence, are of equal relevance to the constitutional language and canon. Such silences may be intended to leave space where consensus could not be found, allowing the constitution to be open to future interpretation. They may also be accidental. Constitutional silences are, like aspiration in constitutions, tools to balance diversity. V Jackson suggests that silence can provide a remedy for holding off potential secessionist movements. The only alternative to silence may be to include an explicit constitutional right to self-determination. The narrative and identity of a constitution is shaped by the decision to include a reference to secession. To do so may be inviting the breakup of a state. However, it may also open up the constitutional narrative to the idea that the state is not necessarily permanent.

(Un)constitutional change rooted in peace agreements

Peace agreements concluded after internal armed conflicts often stipulate radical constitutional change. When this is envisioned to take place within an existing constitution, it creates normativity clashes between the constitution and the peace agreement by circumventing constitutional amendment procedures or conflicting with the unamendable constitutional principles. This paper sets out the manifestations of such clashes of normativity by a comparative study before focusing on the ongoing peace processes in the Philippines and Colombia. By reference to the case studies, the paper conceptualises potential modalities of coping with such unconstitutionality challenges and examines these modalities in four groups: (i) linking the legality of a peace agreement to international law (ii) transitional constitutionalist interpretation (iii) transitional constitutional instruments or deferral (iv) enhancing process legitimacy to increase the legitimacy of the proposed constitutional change.

History and the constitution

Sajó argues that constitutions, rather than being forward-looking, ‘reflect the fears originating in, and related to, the previous political regime’. Exploring this thesis in reference to contemporary constitutions drafted as part of peace-making or regime change processes, I argue that not only are constitutions shaped by historical circumstances, but that they create and utilise historical narratives in pursuit of political goals. First, constitutions may embrace or reject history in pursuit of constitutional change. Second, in some cases history is explicitly invoked to justify particular constitutional provisions. Third, a number of constitutions mandate the teaching of history so that the constitutional text ensures the continuation of certain historical narratives. Finally, I consider how judges interpret constitutional texts in an historical context. Considering the increasing use of transnational law, I question what role historical references play in constitutional law.