II. Politics or law? Coping with the ‘failure’ of transitions

III. Constitutional development as statecraft: Locating the special issue

This special issue attempts to address the relationship between political settlement and constitutional development and the statecraft of constitution-making that takes the distinctive dimensions of contemporary constitutional transitions seriously. The special collection contributions operate as a form of ‘concept album’: discrete discussions over aspects of constitutional drafting and adjudication which seek to begin a larger conversation over the relationship of contemporary constitutions in conflicted states to political agreement. A central thesis runs through the collection, namely that both the practice of constitution-making and constitutional legal thought must better understand the relationship between constitutional text and the politics of elite bargaining that shape and constrain it. We suggest that the critical need in contemporary conflict contexts is to understand how to navigate the tension between the constitution as reflecting an elite ‘dirty deal’ and the constitution as reflecting the droit politique. This tension we suggest affects the design of the constitution-making processes; it recasts the operation of what look like ‘normal’ constitutional devices with a heightened and distinctive politicised role; and it calls for a new understanding of the role of courts and judicial review as part of a complex political tapestry of transition.

The first article, by Charmaine Rodrigues (‘Letting off steam: Interim constitutions as a safety valve to the pressure-cooker of transitions in conflict-affected states?’), picks up the question of the relationship of securing political agreement to any new legal and political order, to the design of constitution-making process. This article reflects a practitioner’s experience of the connection between development approaches to political settlement and constitution-making. Rodrigues sets out the international modus operandi of incremental constitution-making through a two-phase constitution-making process of producing an interim constitution and then a final constitution. She shows how the interim constitution has been used in ‘fragile and conflict-affected states’, outlining its challenges, but also arguing for its benefits. The two-stage model sees an initial interim constitution locking-in an initial elite agreement as to the parameters of the polity and securing agreement to a joint constitution-making process to produce a ‘final’ constitution. This two-stage process aims to both produce a wider political settlement and embody it in a constitution, and is becoming a key international modus operandi, driven less ideologically than pragmatically as a logical way to do business. An initial agreement to stop fighting is often coupled with some sort of interim power-map as to how power will be held and exercised which simultaneously sets out the power-map for how the final constitution will be achieved. The coupling of ceasefires with constitutions has been criticised.^{Footnote 20} However, undesirable as it may be to link ceasefires to constitutional guarantees, they often cannot be decoupled as parties will not move from conflict until they get some guarantees as to the political settlement that will prevail. The initial interim constitutional documents vary from short constitutional ‘holding devices’, to full constitutions which merely have the label ‘interim’. The two-stage process has the benefits of enabling incremental approaches to constructing constitutional order, in contexts where legitimate legal frameworks are difficult to achieve. In addition to being politically plausible the two-stage process appears to have a normative dividend: the interim constitution limits the reach of the initial elite deal, by enabling the establishment of a second stage full constitution-making process capable of involving much the broader social or political participation that is understood as important to constitutional ownership. The interim constitution’s ‘unusual’ constitutional features speak to a familiar constitutional project – the need to forge political agreement to a common political community as an ongoing political process, and to constitutionally institutionalise the restraint of power to enable it as public power.

Yet, for constitutional lawyers the very term interim constitution is paradoxical when viewed from a traditional constitutional standpoint. The interim constitution subverts the constitution’s normal positioning as a document which rests on prior political consent, and which serves to define and articulate the fundamental norms on which the polity is predicated. The constitution is recast from a foundational document which stands above and is more permanent than ordinary legislation, to a very temporary arrangement which anticipates its own replacement. However, as Rodrigues argues, in conflicted states constitutional reform is often understood as presenting singular, winner-takes-all opportunities. Against this backdrop, it can be useful to more systematically embrace interim constitutions as a useful ‘circuit-breaker’ in peace processes because they help broker political settlement, while enabling a platform for ongoing peacebuilding. Rodrigues suggests that interim constitutions can help build-in a more incremental approach to constitutional development which enables the constitution to function more explicitly as a tool of political settlement.

However, interim constitutions also carry risks as Rodrigues also points out. The first risk relates to how interim constitutions in sketching the contours of the eventual political settlement also create pathway dependencies. The interim constitution may shape and constrain the capacity of the end constitution in ways that make it difficult to ensure that the elite deal opens up and develops into a more normative constitutionalism. Second, international actors tend to engage with the political settlement processes and constitution-making processes as distinct processes, despite constitutions operating as the legal manifestation of the brokered peace. Rodrigues suggests that better awareness of the complexity of the relationship between political bargaining and constitutional development and the risks of the two-stage process, might assist in smarter design of such processes in the future.

The second article, by Silvia Suteu (‘Eternity clauses in post-conflict and post-authoritarian constitution-making’), addresses the ways in which traditional design elements of constitutions play a distinctive role in transitional societies with respect to deep political division, using ‘eternity clauses’ as her case study. As Suteu points out, literature on entrenchment as a means to achieve constitutional endurance has grown in recent years, as has the scholarship on unamendable provisions as a mechanism intended to safeguard the constitutional project. Less attention, however, has been paid to the promise and limits of unamendable ‘eternity clauses’ in contemporary transitional post-conflict settings. Yet, they have appeal in the transitional context because they provide a mechanism through which to ‘hard wire’ core or ‘unnegotiable’ elements of the political settlement into the constitutional text, as the eternity clause protecting federalism in the German Constitution illustrates. The attraction of eternity clauses from a conflict-resolution point of view, is that they provide security for elites that the most critical understandings agreed between opposing elite actors will be protected against unilateral change by ‘the other side’, or indeed by the pressure of the wider participative processes or demands of international actors. Groups whose place in the political order rests on their use of armed force, take a risk to their power in moving from violence into transitions, exacerbated by the unpredictability that committing to elections brings. In such contexts, constitutional guarantees can play a role in reassuring political actors that the deal they are agreeing to, will stick. The relationship of an eternity clause to a newly inclusive political settlement is often not immediately visible from the wording of the clause itself. While eternity clauses always hard write core elements of political settlement, as Suteu traces through her example of Tunisia, choices as to what to place beyond constitutional amendment often reflect and entrench an inter-group balance of power. The political choices over what to include in eternity clauses reveal a subtext as to critical trade-offs between elites as to the core requirements of any political settlement, such as compromises between secularist and Islamist visions of the state for the groups and interests they reflect, or particular territorial balances of power.

As with Rodrigues’s discussion of interim constitutions, Suteu questions the extent to which constitutional design can carry the burden of forging political agreement. She examines through her wider comparative positioning of the Tunisian example, how eternity clauses, rather than ensuring that the political settlement is stabilised, often merely provide new battlefields for the constitution’s destabilisation when elite consent to the settlement is withdrawn. She uses the example of Honduras as illustrative. There an eternity clause was used by the Supreme Court to remove a President who sought to hold a referendum to extend constitutional Presidential limits in what was an attempt to tilt the balance of power. However, the international community found the court to be complicit in an (unconstitutional) coup which saw the President returned to power. Suteu demonstrates how the eternity clause itself became a mechanism for destabilising the constitutional order because it could be used to undo the political settlement (by deposing the President), albeit in the face of an alternative challenge to undo the settlement (by the President’s extension of terms limits and proposed amendment of the eternity clause). In a sense what Suteu’s Honduran example illustrates is the form of constitutional crisis that prevails when local elites are smart as to how to work within the letter of the constitution when seeking to subvert the foundational inter-group deals at its core by attempting to take back unilateral ownership of the state in ways that the constitution was understood to prevent. Often these efforts involve elite moves and countermoves which take place within the frame of the constitution rather than outside it. The example poses a challenge for those who understand the turn to domestic constitutionalism as somehow depoliticising judgements over who is behaving as a ‘good democrat’ and who is not. Suteu’s examples show that it is difficult for international interveners doing ‘normal constitutional law’ to articulate the constitutional rights and wrongs of each move in terms of the constitution’s text. It is difficult to articulate why such moves are ‘unconstitutional’ in terms of the constitution’s text without a political assessment of the type of group accommodation the constitution was designed to achieve and the impact on democratic prospects of any move from this inter-group ‘deal’. Suteu’s article therefore ultimately illustrates both the potential but also the limits of eternity clauses to legalise mechanisms of group accommodation and reassurance.

The second two articles continue the theme that there is a need to understand the political bargaining process, but with reference to constitutional adjudication. Both examine the distinctiveness of post-conflict or post-democratisation judicial review by apex courts. Tom Daly (‘The alchemists: Courts as democracy-builders in contemporary thought’) explores the democratisation setting and questions the increasingly onerous role given to courts by constitution-makers – a role of maintaining a functioning political settlement and acting as engines of transition by ensuring successful democratisation. Constitutional courts, as Daly argues, are expected to breathe life into the paper promises of the new democracy’s constitutional text; to mediate the text’s shifting relationship with the underlying political settlement process; and also to guard and build democracy itself by policing political adherence to emerging transnational norms of democratic governance. These combined roles are acutely difficult and push courts beyond the realm of legal adjudication in the strict sense towards a more heightened political role involving political judgement as to what furthering democratic transition demands.

Daly questions whether international support for independent courts and unthinking preferences for such courts to be given strong forms of judicial review, pays sufficient attention to the heightened political context in which they will operate. He examines the ways in which traditional debates between political and legal constitutionalists around the legitimacy of strong forms of judicial review, fail to capture the dilemmas for transitional courts in brokering a process between a former elite-captured political order, and a new more inclusive and democratic political order. He also notes the lack of attention paid to the democratisation role of regional human rights courts, and the complex ways these interact with domestic judgements. In line with Rodrigues, Daly notes the complexity of the temporal relationship between political settlement and constitution-making – for Daly it plays out even in the academic contestation over what comprises the distinctive phase of democracy consolidation in which a distinctive role for courts should be understood to be at play. In line with the other contributions to the collection, Daly’s contribution on judicial review suggests that our traditional debates – in this case over the democratic or counter-democratic imperatives of judicial review – need to be rethought to take account of the constructivist relationship of the constitution to the democratic political order.

The fourth article, by Jenna Sapiano (‘Courting peace: Judicial review and peace jurisprudence’) also takes transitional constitutional judicial review as its focus, but this time focusing on transitions from conflict to peace, rather than on those from authoritarianism to democracy per se. As with Daly she notes that even though the scholarship on the legitimacy of judicial review is unsettled, a strong constitutional court with authority over constitutional interpretation is commonplace in new constitutions – this time post-conflict constitutions. Like Rodrigues and Suteu she notes that the parties to a peace process are required to make numerous compromises in the interest of reaching a constitutional text and that this context means that tensions that present in any constitutional system become more acute and heightened in the post-conflict context. Under a constitution with strong-form judicial review, the ongoing resolution of those tensions can be left to apex courts to deal with. Using Bosnia-Herzegovina, Colombia and Northern Ireland as case studies, Sapiano suggests that debates between political and legal constitutionalism need to be reconfigured to understand the constructivist relationship that judicial review plays with relation to political settlement. She points to the development of what she suggests is a new ‘peace jurisprudence’ in which courts show themselves aware of this constructivist role. This peace jurisprudence involves courts using active purposive interpretation to protect the underlying political settlement from constitutional attack, because they view such settlement as essential to the constitutional order and effectiveness. Sapiano suggests that courts reviewing peace agreement constitutions pay particular attention to the relationship of the constitution to an underlying elite settlement, in ways which while appearing politically activist are legitimate. Interestingly, however, in a review of how international human rights courts have adjudicated in the same or similar cases, she points out how the deference to the underlying political settlement shown by domestic courts, is rejected by less politically sophisticated international human rights courts.

IV. Cross-cutting themes

Together the articles usefully open up a broader set of questions about the role of constitutions as enablers of transition to peace and democracy. These transitions pose a challenge as to the general applicability of constitutional theory, and also have clear policy implications for divided societies. The questions raised as to the relationship between political pact and constitutional order, go beyond what each short article can hope to deal with, forming a wider research agenda which deserves greater attention, and to which I now turn.

First, and perhaps most problematically for traditional constitutional theory, the articles all show the need to have a better theoretical account of the need for shared constitutional ownership and group accommodation in fundamentally divided societies. The pieces all question how the tension between the constitution as a product of the ‘dirty deal’ of the moment, and the constitution as speaking to more universal normative ambitions, can best be navigated. This tension between the particularistic pact of the constitutional moment and the normative ambitions of the constitution to set out more general rules for the future, is familiar to constitutional lawyers in more settled contexts. However, constitutional theory has little to say about the need for constitutions to ensure the inclusion of the groups that are central to fundamental societal cleavages.^{Footnote 21} The practical difficulty of ensuring the stability of the political settlement and the constitutional order in divided societies, arises from the fact that often parties whose support for such order is determinative of its existence, move only reluctantly from conflict positions into some sort of shared political arrangement. When they do so move, they often do so experimentally and try to use the new order, including the new constitution, to pursue their battlefield objectives. Common informal agreement would seem to be a necessary prerequisite to framing social and political relationships within formal institutions: bringing people into formally institutionalised relationships without having informal ones in place is almost always highly problematic. However, creating constitutional agreement in the face of fundamental disagreement as to the nature, territorial and political configuration of the state is exactly the aim of constitution-building in divided conflict societies.

Without a good understanding of the contingencies of the underlying political settlement and its very partial nature, any attempt to support constitutional development is likely to be outwitted by local elite game-playing. Unthinking support for liberal democratic constitutionalism can itself undermine the political settlement, because liberal democratic international interveners often remain ambivalent about the group accommodation that lies at its heart.^{Footnote 22} Their commitment to individual rights and equality and indeed the very commitment to move from the ‘constitution as deal’ towards some more normative sort of order mean that they are often committed to unravelling the underlying political settlement, without fully appreciating that this is what they are doing. In the push for a more ‘normal’ form of liberal democratic constitution, liberal peacebuilders tend to underestimate the nature of the underlying political deal, its fragile balances, and its central importance to any possibility of stable government necessary to the delivery of equality and human rights. However, in failing to understand the nature of the political settlement, international actors also fail to grapple with the ways in which the political settlement can also be an obstacle to the delivery of equality and human rights, and so lack clear strategies for supporting its transformative possibilities even as they seek transformation.

Second, the articles illustrate the need for further analysis of available process choices relating to constitutional design, and analysis as to how particular process choices assist or make more difficult the move from the constitution as an elite pact, to the constitution as having a more normative transcendent ambition to be a document of good government. International actors concerned with ‘good constitutionalism’ and steeped in traditional understandings of constitutional design in more settled contexts, often fail to understand the ways in which the constitution is being expected to broker agreement between elites where there is very little ‘real’ agreement. They consequently fail to understand the burden borne by traditional constitutional mechanisms such as eternity clauses, or apex courts, as mechanisms for consolidating and extending agreement in contexts of fragile elite balances of power. As a result they also fail to anticipate the ways in which these mechanisms can become tools for ‘spoiling’ the fragile consensus on which the state rests and on which its stability depends. Even the short accounts in this special issue illustrate the unintended consequences that can result when the traditional constitutional devices interact with elite political bargaining processes that are ongoing, incomplete and contested. Each of the articles points in a different way to the need to understand the operation of constitutions as fundamentally determined by the elite balance of power, and the implementation problems which ensue when there is an attempt to shift the balance of power by one group, by a court, or by unwitting international actors.

Thirdly, each article essentially implicitly raises the question of the international politics of engaging with domestic politics, and questions of international capacity to play an effective role. Those who seek to support constitutional orders as works in progress need to both understand the politics with which they are engaging, and to engage politically with that politics. What might this look like? It might involve being prepared to articulate the importance of forms of inclusion to political settlement, even when achieving inclusion sits in an uneasy relationship with individual rights protections. Or it could involve articulating political opposition to a party’s attempt to move the constitution away from protection of a plural agreed political settlement, back into a unilateral political arrangement, even when it takes place within the frame of the constitution. Such interventions would require political rather than legal analysis to articulate the constitutional wrong, particularly when the move to ‘own’ the constitution and undo the inter-group bargain at its heart, is formally compliant with the procedure for constitutional amendment.

However, international interveners often do not understand the subtlety of the often implicit or underlying political deal on which the constitution rests, and are often inept at spotting or articulating how forms of ‘takeover’ are happening until it is too late. Moreover, most international interveners understand their own mandate and legitimacy to limit them from overt political engagement, or at least the admission of it, and this restricts both the capacity and the will to name political problems in political terms. Indeed to some extent the very move from standard-setting around democracy, to standard-setting around good constitutionalism has had an attraction because it appears to call for legal rather than political judgments. Paradoxically, the recent investment in ‘the constitution’ and ‘constitutional change’ as crucial to underpinning a democratic political order, can make it particularly difficult to internationally challenge actions which are deeply undemocratic when they have good claim to be compliant with the constitutional text.

To come in a full circle: at the outset I presented the international turn to promote and protect constitutions in an era of disillusionment with institutionally-focused state-building as paradoxical. However, these two moves are not necessarily as paradoxical as they at first appear. It is in part the failure of transitions as driven by international law and organisations that is forcing a ‘local turn’ in the form of tying international intervention to the production of a domestic set of norms and understanding. Internationalised ‘constitution-promotion’ appears to provide a way for international actors to promote democracy and human rights as an indigenous political and legal exercise without appearing to be acting ‘politically’, because supporting constitutional development often appears as a more ‘legal’ technical matter than ‘promoting democracy’.

However, there is a need for development actors to move from a technical understanding of constitutions, to an understanding of the process dimensions of constitutions capable of seeing their relationship to politics and to controversies over the nature of the state and its capacity for inclusion. Similarly, constitutional theorists and lawyers should understand better the speedy constructivist role being given to constitutions in the most inauspicious of circumstances, and direct some energies to understanding how traditional design features might play out somewhat differently in such contexts. Constitution-building and state-building interventions are often rooted in completely different epistemic communities within the academy, and distinct policy communities in the world of practice. While constitution-making in development organisations is often paid for (or promoted) as part of human rights interventions, conflict management approaches emanate more from conflict advisers and state-building experts. These are not only different people, but are also in different departments in most of the key agencies. However, there are profound ontological reasons why state-building and constitution-making discourses have difficulty speaking to each other: while international relations scholars and practitioners are moving to embrace ‘failure’, ‘hybridity’ and ‘post-liberalism’ and respond with concepts of ‘promoting reliance and capacity’, the idea of a post-liberal constitution as having any progressive potential is almost beyond imagination.

The contributions of this special issue, suggest that the turn to constitutionalism is unlikely to fare any better than past state-building approaches unless it takes on board lessons learned from that intervention regarding the need to be more politically savvy. A fast-developing international legal regulation of constitution-making stands to benefit from paying more attention to the relationship between the constitutional text and the underlying attempts to support a more inclusive political settlement. While international organisations caution against ‘a blueprint approach’ to their interventions, they tend to revert to blueprints as a default position because engaging in a politically smart way with elite power structures and agendas at the domestic level is difficult, defies any standardised analysis, pushes to the limits of mandates, and is not easy to provide human resources for. If the task is to be approached politically there is a need not just to talk about the politics of the local but also to talk about the political restraints on international norm-promoters and understand the ways in which each interacts.

Conversely, the political settlement focus of development organisations which focus on the political dynamics of elite bargaining and view constitutions as ‘once-off’ moments within the broader political settlement process, could benefit from a more process-driven notion of constitutional design. The current emphasis on the political settlement as involving ongoing bargaining relegates constitutions to once-off institutional ‘moments’. This conception of constitutions needs to be rethought in light of their use in transitions to both capture and guarantee elite bargains and enable those bargains to grow and transform into broader social contracts over time. The constitution is the key power-map in which political commitments to inclusion are held together, and it establishes the institutions through which they are to be developed and negotiated in the future. There are few constitutional lawyers who view constitutions as static texts, and indeed the move from talking about ‘the constitution’ to talking about ‘constitutionalism’ recognises the process dimension of the enterprise and a distinction between having a constitutional text and having a political and legal order which acts as a restraint on public power being used for private ends. Political engagement by development actors – who are increasingly involved in supporting constitution-making processes – could be assisted by a more process-oriented view of constitutions and better understanding of the dialectical relationship between political settlement and constitutional development. International interveners might view the challenge as one of intervening in more politically smart ways, taking account of both their own political constraints, and the political constraints of the complex contexts they seek to influence, without completely capitulating to either.