a network of constitutionalists from countries throughout the world
We are featuring each of the workshops in the 10th IACL World Congress 2018 on “VIOLENT CONFLICTS, PEACE-BUILDING AND CONSTITUTIONAL LAW”, being held in Seoul, Republic of Korea on 18-22 June 2018. Full details are on the congress website, in English and French, along with information on how to submit a paper. Papers may be in either French or English. Please circulate to colleagues interested in the subject.
The end of violent conflicts creates hope for peace and democratic rebuilding of the state during the transition phase, imposing a complete rethinking of the existing legal framework when the old one has become out-dated or inapplicable. Each phase – being the peace agreement or the political dialogue – that follows the end of a conflict, creates discussions and negotiations around constitutional issues. However, if the constitutional rebuilding – amendment of the existing constitution or drafting of a new one – is unavoidable, it is barely connected with the two other mentioned phases of “peace” and “political dialogue”. When one looks at the issues that were negotiated, they are often linked to the sharing of power, the guarantee of fundamental rights and freedoms and the creation or the restoration of review mechanisms. All these questions have a constitutional dimension but very few constitutional lawyers or makers are involved in these early stages.
How one can explain this -sometimes strong- division between peace building, political dialogue and constitutional reconstruction? Is constitutional law simply limited to record and rephrase the will of peace or political negotiators concluded during these phases? On the contrary, is constitutional law able to play a more dynamic role, by offering rationalised solutions to negotiators aiming at keeping the coherence of legal and political systems?
This workshop will offer an opportunity to examine and open the debate around these questions. Three main themes will structure it.
A first theme will be based on the interaction between the different phases of peace building after a violent conflict, leading to State rebuilding through the rule of law and the enshrinement of a constitutional State. How to integrate the constitutional dimension from the starting point of the peace negotiations regardless of their focus on peace settlement or political negotiation? Is it advisable to promote the establishment of identified constitutional principles from the beginning? Or would it be preferable to let the political negotiation running without associating constitutional technical issues? How and to what extent is it necessary to distinguish between the peace process and the political dialogue? Should the constitutional dimension only emerge once the political dialogue has reached a certain level of peacefulness? Or, is a gradual integration of constitutional issues a better option making a distinction between the different phases -interim and final- of this renewal process?
A second theme will focus on the importance of the constitutional process during the phase of political transition. The amendment or the change of the constitution often focuses on questions related to the substance of the future constitutional text. Nevertheless, beyond the importance of the future constitution, the drafting process is a key moment. Firstly, the constitutional drafting process happens in different contexts playing a key role for the elaboration of the content of the text. If the conflict is not on going anymore, conflicting interests may divide the drafting process. To what extent this context can influence the process and the content of the future constitutional text? Constitutional drafting processes are of different nature: some are made with a constitutional commission of experts, some others are open through the election of a constitutional assembly, and some mix these two processes in an alternative or comprehensive manner. What type of influence the choice of one specific process rather than another will have on the final result? Could this context become a source of deadlock? How to overcome the situation when such a deadlock appears? What are the key elements that would allow for the restart of the process? All these aspects could be studied here and allow for an evaluation of the solutions that were chosen, regardless of their successes or failures. This will also offer an opportunity to measure the impact of these various elements on the final result.
A third theme will be dedicated to the elaboration of the content of the constitution during the drafting process. Drafted for ruling the future of a democratic society in a period of transition, a new constitution should also include the correction of the deficiencies and mistakes from the past, as well as the necessity to reach a compromise when the consensus is impossible. How these various – and sometimes contradictory – expectations can be taken into consideration for the final text of the constitution? How the political agreements reached before the starting of the constitutional process can be enshrined into the constitution, without betraying the intents of the peace building agreement negotiators? This third theme will offer a basis for thinking or rethinking the whole approach of the peace process. Whatever are the adopted solutions regarding the State structure, the devolution of powers, the protection of fundamental rights and freedoms, every constitutional transition is unique and must include the contextual framework. This theme will also offer an opportunity to think and debate about the transitional and final constitutional provisions. Should all the provisions of a constitution be adopted forever or are there provisions that should be implemented for a limited period of time? Quite often left aside, these issues (such as transitional provisions) are key for the success or the failure of the process. Questions related to dealing with the past, such as transitional justice measures or the creation of new structures related to the guarantee of non-repetition of former violations are quite often at stake: they are part of the constitutional debate. This third theme could then offer an opportunity to brainstorm and exchange on this dynamic of constitutional drafting. It could also address challenges and hopes generated by the implementation of the constitutional text after its adoption and promulgation.