The map metaphor serves to introduce two of the features of constitutions: a map is both schematic and drawn from a particular perspective. However ingenious the cartographer in representing dimensions on the page, an act of imagination is required to comprehend the reality of the terrain from the signs and symbols of the map. Constitutional documents share these features.Footnote 1
I. Introduction
Transitions from war to peace often require new (or revised) constitutional arrangements to give clarity to the post-conflict state and to legitimise the emerging political settlement. However, a constitution is not the sole legal or political document required to govern this transition. Constitutions are often preceded by peace agreements as the political and legal pacts that dictate the terms of peace and the intentions of the parties in transitioning out of a state of war. Constitutions then follow, and sometimes even constitute a form of peace agreement (such as the Interim Constitution in South Africa). I use the term ‘peace agreement constitution’ to describe these constitutions rather than post-conflict constitution, as other authors in this issue have done, as it makes clear that such constitutions are not autonomous or free-standing, but are in a mutually constitutive relationship with the peace agreement that provides the legal and political authority for their enactment.Footnote 2 Vivien Hart, whose passage is cited above, suggests that constitutions are a part of a canon that, ‘borrowing from its literary counterpart, becomes a whole set of definitive sources rather than just one’.Footnote 3 The peace process and agreement are part of the canon of a peace agreement constitution that together form a part of a constitutional discourse that ‘emphasizes process’.Footnote 4
This article considers the role of constitutional (or apex) courtsFootnote 5 in post-conflict societies, and in particular how their adjudicative function relates to the peace agreement and political settlement. In the first part of this article, I outline the traditional debate between political and legal constitutionalism, suggesting that these standard arguments on judicial review are unable to adequately assess the place of courts in protecting the core of the political settlement in peace agreement constitutions. From there, I assess how purposive constitutional interpretationFootnote 6 and the principle of proportionalityFootnote 7 are being adopted into the jurisprudence of courts interpreting peace agreement constitutions. I use cases from Northern Ireland, Bosnia-Herzegovina and Colombia, where courts have addressed the validity of the underlying elite pact at the heart of the constitutional order.Footnote 8 In the cases under review I suggest that the constitutional court found peace to be foundational to the constitution – noting the relationship of the constitution to the underlying political settlement that drove the peace agreement. However, in none of these cases did the court find that the peace agreement was beyond question. In different ways, the courts in all three jurisdictions accepted that the political settlement needed to stay open to other possibilities and re-evaluation. The second part of the discussion briefly turns to the jurisprudence of international human rights courts, suggesting that international courts are less well placed to make reasoned judgements as to how the demands of justice should be balanced against the demands of peace, showing also how different regional courts have taken different approaches. In conclusion, I suggest that there is an emerging global ‘peace jurisprudence’ which requires traditional theories of constitutional adjudication to be re-evaluated.
II. Courts, constitutions and peace
Peace is a contested term and an ambiguous concept. In an unsophisticated narrative, war is nothing more than the absence of peace and peace the absence of war. Yet, the meaning of peace is ephemeral, moving with international political shifts, so that where peace was once thought of as contrary to being in a state of war, the present understanding of peace is more complex, and requires attaining a certain level of development, satisfying the rule of law, and recognising and complying with basic human rights norms. Furthermore, peace must not be thought of as a momentary event but rather as a process, without a clearly defined (or definable) end point.Footnote 9
Peace agreements can be understood as written documents agreed by the parties to the conflict that hold the purpose of ending that conflict. There may be several documents, for example, pre-negotiation agreements, ceasefire agreements, negotiation agreements, implementation agreements, and, in some cases, a (interim) constitution,Footnote 10 which are negotiated as part of the political settlement and which may all be categorised as peace agreements. Still, like ‘peace’, the meaning and the legal standing of peace agreements are vague. Christine Bell argues that,
despite the prevalence of documents that could be described as peace agreements, and the emergence of legal standards addressing them as a category, the term ‘peace agreement’ remains largely undefined and unexplored. The label is often attached to documented agreements between parties to a violent internal conflict to establish a cease-fire together with new political and legal structures.Footnote 11
In fact, peace agreements often go beyond the immediate arrangements necessary to end violence in laying a foundation for a new (or revised) constitution. Many peace agreements set out the principles of a new constitution, such as in Cambodia, where the provisions for a new constitution were outlined in the Comprehensive Peace Agreement (Paris Agreement) or Burundi, where the Arusha Accord laid out the principles for a new constitution. In Bosnia-Herzegovina, the constitution was included as an annex to the Dayton Peace Accord. There are also constitutions that resemble peace agreements, such as the Colombian Constitution of 1991, which was written as part of an ongoing (and continuing) peace process. Some interim constitutions also resemble and perform the function of peace agreements. For example, in South Africa, the Interim Constitution was in fact the main peace agreement. In Nepal the Interim Constitution, passed shortly after the Comprehensive Peace Agreement, outlined the procedures for the drafting of a new constitution. In Zimbabwe and Kenya, the constitution was required as part of the settlement between political parties following disputed elections that resulted in violence, but not full-scale civil war. There are also cases that would fall under the category of peace agreement constitution in which the constitution and peace agreement are being drafted concurrently, although not necessarily in collaboration in all instances. Such cases include the current processes in Somalia, Yemen, and Libya. The purpose and intention of the constitution in all of these cases was to further the peace process as part of the political settlement.
There are advantages and drawbacks in connecting peace processes and constitution drafting.Footnote 12 What may be considered negative or positive during the peace or constitution-making processes in the immediate aftermath of conflict, may have different long-term implications. However, peace agreement constitutions, like all constitutions, are living documents subject to the judicial (and legislative) procedures of the state, and which, over time, can begin to resemble something quite unlike the compromise document that emerged at the end of the conflict.
The ideal-type constitutional document finds authority in ‘the people’; the people being a source of authority for a constitution that is intended to be enduring.Footnote 13 However, the moment of constitutional founding is limited in time;Footnote 14 beyond that moment, ‘the people’ become an abstraction rather than a continuous source of authority. In the same way, peace agreements are negotiated and signed by certain people in a moment of time, but the ‘peace’ they bring must be developed and tied to new constitutional arrangements that embody a new political settlement. Peace agreement constitutions, like many constitutional documents (regardless of their origin), are typically elite-brokered pacts, often negotiated and signed at the exclusion of broader participation.Footnote 15 A compromise constitution cannot be understood as an end point if it is to function in a deeply divided state emerging from high-level conflict. To view the constitution as a process (a ‘means’) rather than a codified set of rules (an ‘ends’), perhaps requiring several iterations, breaks with the traditional understanding of the constitution as an entrenched and lasting document.Footnote 16
Judiciaries (and legislatures) must continually (re)interpret and (re)negotiate their constitution, allowing it to move from its founding political moment and adapt to address unforeseen situations, to progress beyond the customs and norms that were held at the moment of its enactment. Likewise, a peace agreement constitution must move on from the divisions and tensions that existed at its signing to establish a sufficient level of stability, introduce new political and legal institutions, and simultaneously accommodate warring factions while moving towards a more united national identity. However, a peace agreement constitution is, by necessity, a compromised and imperfect document, which may not be able to overcome tensions inherent in it. Courts, in their capacity to interpret and (re)negotiate the constitution, also in a sense (re)interpret the peace agreement as they articulate the nature of the political settlement captured in the peace agreement constitution. Courts must balance the stability of the political settlement captured in the past on the one hand, with more universal and general ways of understanding the constitution’s foundation on the other, in order to enable its more particularistic understandings to be transcended over time.Footnote 17
III. Political and legal constitutionalism
Even with the close connection between peace agreements and constitutionalism, evaluation of judicial review and the role of courts in transitional constitutional orders has focused on democratisation rather than peace. Tom Gerald Daly’s article in this issue goes over much of the key scholarship relating to courts and transitions that focuses on post-authoritarian governments and the role of courts as democratisers. I suggest that a distinctive set of peace agreement constitutions exist and that when we examine cases arising post transition from conflict rather than authoritarianism, peace is the foundation of the constitution and so becomes the concern of courts in ways that produce distinct jurisprudential needs and responses.
Legal and political constitutionalists disagree on the authority of constitutional courts to practise strong-form judicial reviewFootnote 18 and on the democratic legitimacy of courts to rule on political questions. I suggest that the disagreement between the two camps is unable to address the particular concerns of judicial review of peace agreement constitutions, as courts in these contexts are often required to rule on ‘first-order questions about the structure of government’Footnote 19 and on questions of peace. Peace agreement constitutions attempt to achieve elite pacts that may be more inclusive than before, but risk becoming limited deals. Courts often must both acknowledge and protect the elite pact while recognising its limited nature and the need to ultimately move beyond it. This involves a difficult type of balancing act which arises directly at the political interface between opposing elites with opposing constitutional preferences.
In his article in this issue, Daly is sceptical of the excessive faith placed in courts in new democracies and suggests that the view of courts as central engines of successful democratisation rests on rather slim evidence. However, regardless of any academic hesitations as to the expected task of a constitutional court, courts with strong-form judicial review are commonplace in new constitutions, including those drafted as a part of a peace process.Footnote 20 In negotiating a political settlement, elite actors bargain intensely to protect their political positions, and in agreeing to the inclusion of strong constitutional courts may be motivated by self-interest. Ran HirschlFootnote 21 and Tom GinsburgFootnote 22 argue that parties contending for power make pragmatic decisions in the course of negotiating the constitutional settlement. It may also be that the internationalisation of many peace and constitution-making processes has led to the ‘constitutional migration’Footnote 23 of strong judiciaries. International actors may also push for robust courts with judicial review of rights, as a rule of law ‘safeguard’ that is particularly necessary in cases where the power-arrangements constitute a tightly scripted ‘elite pact’.
No matter what the motivation for the adoption of strong courts into peace agreement constitutions, the current discourse on the legitimacy of judicial review is measured against democratic values, and is unable to assess the place of courts in balancing the demands of peace in holding together the political settlement. Political constitutionalists see democracy as being facilitated primarily through representative, elected legislatures and governments, and so are cautious about the authority and oversight of courts.Footnote 24 Legal constitutionalists, in contrast, have understood rule of law and rights-based judicial review as central to democracy.Footnote 25 The argument between political and legal constitutionalists is concerned with the sense and functions of democracy. Political constitutionalists ground their position in a majoritarian model of democracy, holding that legislatures are the more legitimate institution to protect and interpret the constitution and are sceptical that judges can, or should, hold strong interpretive powers. Legal constitutionalists, on the other hand, look to courts to secure the constitution as a legal document that ascribes authority to other political institutions. Political and legal constitutionalists also disagree on the equality of citizens. Where political constitutionalists look to the democratic process and the will of the majority to provide equality through the electoral system, legal constitutionalists believe that constitutionalism, through judicial review, protects the equality of all citizens by preventing the tyranny of the majority.Footnote 26
Advocates and opponents of judicial review look to the American and British constitutional systems, respectively, in support of their arguments. Both positions, however, assume a ‘reasonably well-functioning’ liberal democracy.Footnote 27 As Daly argues, these arguments may need to be evaluated differently in post-authoritarian periods of democratic consolidation. I go further to suggest that the political and legal constitutionalism literature arguments on judicial review are unable to assess constitutional courts and peace agreement constitutions, as the demands of peace may be different from (and, possibly, opposite to) the demands of democracy. That is not to say, however, that the demands of both may not also be the same in many ways.
In post-conflict cases, such as Northern Ireland, Bosnia-Herzegovina and Colombia, peace is at much at stake as democracy. A constitution drafted as part of the peace process is intended to end violence (both the actual occurrence of violence and the possibility of renewed violence). Peace agreement constitutions, in fact, intend to move contestation out of violence into politics. However, the threat of violence remains throughout the peace process and constitution drafting phases, and often continues into the implementation and post-transition periods. The requirements for peace are vague, and the potential for renewed violence lingers beyond the enactment of the peace agreement constitution. Moreover, the demands of peace and the demands of democracy may be in tension, as much as they can be mutually dependent. Democracy is hard to achieve without peace, but the ending of conflict can require limits to be placed on democracy in the interest of finding a resolution. The tensions between peace and democracy and the higher order difficulty of maintaining both, means that traditional approaches of both political and legal constitutionalists are incomplete.
As a case in point, arguments relating to the authority of the constitution are grounded in the traditional understanding of constituent power: that the legitimacy and authority of the constitution is found in ‘the people’ who act in unison and are in agreement with the constitution. Yet the very concept of ‘the people’ is often under dispute in post-conflict transitions, because, firstly, ‘constituent power’ appears to be imposed from above and outsideFootnote 28 and, secondly, divided societies include multiple sources of ‘constituent power’.Footnote 29 A peace agreement constitution requires comprise between two (or more) ‘constituent powers’ with the intent of establishing a unified polity, rather than the constitution emerging out of a clear commitment to act as a unified ‘people’ or ‘polity’. The concept of ‘constituent power’ is complicated and there can be no automatic assumption that the peace agreement constitution is a straightforward manifestation of a common commitment to a common political community, with common values, residing inside a united territory. The commitment to any common concept of the state often remains contingent on continuing political events. In such an uneasy setting, peace agreement constitutions potentially hold authority because they are part of the political settlement. If this source of authority is accepted, courts can claim legitimacy to preserve that settlement, even if they are acting in an activist or political way. A court becomes the instrument to continue the political settlement and to balance the elite pact needed to uphold the peace, against the broader demands of the constitution. In this setting, peace is both the necessary precondition for constitutionalism and the purpose for which the constitution exists.
Conventional discourses on constitutionalism and judicial review often understand democracy as the justification and grounds against which the political and legal constitutionalism debate is set. The reasoning of political and legal constitutionalism takes democracy as the normatively appropriate end goal of constitutionalism and so disagrees solely on the means to best support that goal. However, if peace is taken as the principal normative aim of a peace agreement constitution, the grounding and reasoning of the discourse on judicial review is unable to capture the place courts hold in the political settlement. This article aims to outline an alternative perspective though which to read the case law of courts interpreting peace agreement constitutions. In so doing, this article brings together the study of constitutional law and political settlements.
III. Constitutional interpretation and ‘peace’ jurisprudence
The aim of this section, first, is to provide evidence across constitutional jurisdictions concerning the fundamental meaning of a constitutional order, and second, to highlight the impact certain judicial decisions may have on the legal and political order of a state. First, I locate that discussion in a wider understanding of the importance of ‘foundational cases’ which articulate the constitution’s core purpose and values.
Foundational cases
A part of the constitutional canon that goes beyond the text of the constitution and which includes the peace agreement, is the judicial decisions that go to the heart of the relationship between the constitutional text and what might be understood as the political settlement. Such cases are understood as foundational, examples of which can be located in the jurisprudence of courts interpreting non-peace agreement constitutions.Footnote 30 The German Federal Constitutional Court, for example, in its first case decided after the enactment of the Basic Law, reasoned that:
A constitution has an inner unity and the meaning of any one part is linked to that of other provisions. Taken as a unit, a constitution reflects certain overarching principles to which individual provisions are subordinate.Footnote 31
The Court found that by using this concept of unity, there were certain fundamental principles in the Basic Law that were superior to other political acts and to lesser constitutional principles, and that the federal government was bound by the decisions and reasoning of the Court. These included, for example, the federal nature of the state itself. Further, in this decision, the Court asserted its authority to respond to constitutional questions at issue in the case, including questions not directly raised in the petition. In so doing, it articulated what it understood to be the essential aspects of the constitution that encapsulated the fundamental political settlement within Germany, and on which the constitution’s continued existence in that form depended.
The Indian Supreme Court used similar reasoning in its 1967 decision Golaknath v State of Punjab,Footnote 32 in which it found that constitutional amendments could not abridge or take away Fundamental Rights enshrined in Part III of the Indian Constitution. In a second landmark ruling that overturned the decision in Golaknath, the Court in Kesavananda Bharati v State of Kerala Footnote 33 protected the constitution from the proposed constitutional amendments of Indira Gandhi, finding that the basic structure of the constitution was outside the political amendment process, and in so doing, the Court established the Basic Structure Doctrine. The doctrine was subsequently applied by the Court to invalidate amendments. It has also been used to uphold the public interest litigation of the Court, which has made the Indian Supreme Court one of the most activist constitutional courts. Again, this case can and has been read as creating an understanding of the political settlement that must be preserved for the constitution to continue to exist in any meaningful form. If these decisions are not to be dismissed (and all these cases remain controversial), they have to be justified in terms of an implicit hierarchy in the constitutional order that involves understanding the core conditions and values that enable the constitution.
Similarly, the French Conseil Constitutionnel struck down a law for breaching fundamental rights found in the Preamble of the 1958 Constitution and the principles of the Republic, in a case concerning the constitutionality of restrictions placed on freedom of association.Footnote 34 In its first decision, in 1971, the Conseil struck down a piece of ordinary legislation, and in so doing placed constraints on Parliament. The effect of the decision was to read into the Constitution the Declaration of 1789, the preamble of 1946, and the fundamental principles of the law of the Republic.Footnote 35 The Supreme Court of Israel is another example of a court that has ruled on cases that are considered as ‘foundational’. Here, most of these decisions were issued in the first few decades of the Court’s existence and, despite the absence of a written constitution in Israel, involved limiting government power on quasi-constitutional grounds.Footnote 36
Vicki Jackson and Mark Tushnet question the usefulness of categorising foundational cases;Footnote 37 however, I suggest that the concept remains helpful in demonstrating a distinctive form of judicial review that is focused on articulating the basic meanings of the pre-constitutional political settlement that provided authority to the constitution and which remains grounded in the constitutional text. In many of the examples given above, most notably that of the Indian Supreme Court in Kesavananda, the decisions have had a lasting and profound impact on the direction of the court and on its subsequent rulings.
There are two additional principles which have been borrowed by courts in decisions on peace agreement constitutions which have an element of similarity of approach between the peace agreement cases discussed in this article and traditional constitutional cases, albeit operationalised in a different way in ‘peace jurisprudence’. These are purposive interpretation and the principle of proportionality.
Purposive interpretation
‘Foundational cases’ find justification in concepts of purposive interpretation linked to the authority of the constitution. Joseph Raz, reflecting on constitutional authority and interpretation, reasons that ‘the grounds for the authority of the law help to determine how it ought to be interpreted’.Footnote 38 The authority of a peace agreement constitution is found in the authority of the peace agreement and in the promise of peace. In intention and principle peace agreement constitutions hold up peace, in its broadest sense, as their purpose. In the domestic cases cited below, the courts determined, implicitly and explicitly, that peace was the main purpose of the constitutional drafters. Locating the authority of the constitution, at least in part, in peace and following the link made by Raz, the interpretation of these constitutions rests on the same grounding.
Aharon Barak proposes that purposive interpretation can be objective and subjective.Footnote 39 The objective purpose being found in the ‘interests, goals, values, aims, policies, and function that the constitutional text is designed to actualize’ and understood through the language of the constitution.Footnote 40 The subjective purpose of the constitution is in the principles ‘that the founders of the constitution sought to actualize’.Footnote 41 The subjective purpose can be located in the history of the constitution, ‘including its pre-enactment history – the social and legal background that gave birth to the constitution, [including] the history of the procedures by which the constitution was founded’.Footnote 42 In the case of a peace agreement constitution, its ‘history’ is located in the peace process and agreement. Peace agreements, however, tend to be elite-driven processes, that may not be representative of the broader population. Peace agreements are also political compromises that are far from the ideal-type. Again, the peace agreement constitution, unlike the ideal constitutional document, is unlikely to find a source of authority in a collective agency or a united constitution maker. Subjective purpose constitutional interpretation, in this context, cannot be settled, as the purpose of the constitution is not settled and is a matter of ongoing contestation. The use of historical intent is therefore not particularly useful or applicable to peace agreement constitutions (and, in fact, also remains contested in more settled contexts).
In both settled and peace agreement constitutions, the trouble with according significance to subjective purposive and authorial intent is that the constitution may become stuck in time. This is perhaps best conveyed by Justice Lamer of the Canadian Supreme Court in his judgment on the meaning of the phrase ‘fundamental justice’ in section 7 of the Canadian Charter of Rights and Freedoms:
[A] danger with casting the interpretation of s. 7 in terms of the comments made by those heard at the Special Joint Committee Proceedings is that, in so doing, the rights, freedoms and values embodied in the Charter in effect become frozen in time to the moment of adoption with little or no possibility of growth, development and adjustment to changing social needs … If the newly planted ‘living tree’ which is the Charter is to have the possibility of growth and adjustment over time, care must be taken to ensure that historical materials … do not stunt its growth.Footnote 43
The danger of a peace agreement constitution being held in time may be greater than it is for constitutions written at other points in history. Peace agreements are compromise deals that, in many cases, have required concessions from both sides (and international actors) in order for agreement to be reached. However, when incorporated into the constitution, there is a risk that these tensions will freeze the social divisions of the conflict in time.
Barak lists six internal and external sources to determine objective purpose.Footnote 44 The most relevant being the fundamental values of the constitution, ‘embodied in the words of the constitution … as well as the objective purpose guiding the interpretation’.Footnote 45 Fundamental values can also be found in documents ‘external to the constitution [which] encompass the constitution and form part of its objective purpose’.Footnote 46 For a peace agreement constitution, peace is without doubt a fundamental value of the constitution, and the peace agreement is an example of a further source of fundamental values that are external to the constitution but which must be considered as part of its objective purpose. Peace has no clear meaning, and although the word ‘peace’ is included in the Colombian and Bosnian constitutionsFootnote 47 there is no definition attached. It is therefore at the discretion of the constitutional court, when referencing peace, to determine its meaning and scope, which in part explains the differences between domestic and international courts, as discussed below.
Proportionality
Proportionality has become a common tool in constitutional interpretationFootnote 48 and, again, finds a different form in the context of a peace agreement constitution. Limitation clauses, which provide a means for courts to access principles of proportionality, are sometimes included in constitutional texts. Broadly, there are four elements of proportionality: (1) proper purpose; (2) rational connection; (3) necessity; and (4) proportionality stricto sensu, or balancing.Footnote 49 In a case before the Canadian Supreme Court concerning the use of section 1 of the Charter of Rights and Freedoms,Footnote 50 the so-called ‘limitations clause’, the Court reasoned that ‘[i]t may become necessary to limit rights and freedoms in circumstances where their exercise would be inimical to the realization of collective goals of fundamental importance’. The Court held that section 1 had to be interpreted ‘contextually’ as a result of the qualification that the government could limit otherwise constitutionally protected rights if such limitations could be justified in a ‘free and democratic society’. In so doing, the Court relied on the phrase ‘free and democratic society’ contained in section 1 as evidencing both the justification for limiting a constitutional right and the purpose for which the Charter was enacted, such that ‘the underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit of a right or freedom must be shown … to be reasonable and justified’.Footnote 51 In coming to this decision, the Court articulated the grounds on which a limitation would be found reasonable and justified, namely, that the means chosen must (1) be rationally connected to the objective served by the limitation; (2) impair ‘as little as possible’ the right or freedom in question and, most importantly; (3) there must be ‘a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”’.Footnote 52 The Canadian Supreme Court and the German Constitutional Court have been influential in developing the principle of proportionality,Footnote 53 which has been ‘borrowed’ by other constitutional courts and adjusted in meaning to be contextual and contingent.Footnote 54
It has even been suggested, although not without criticism, that proportionality has ‘provided a common grammar for global constitutionalism’,Footnote 55 with some going so far as to argue that it is the ‘ultimate rule of law’.Footnote 56 I am cautious that the claim being made in this article of an emerging global ‘peace jurisprudence’ based on the principle of proportionality is not evidence of a ‘globalising’ legal trend, rather, it has been taken up by a number of domestic courts – in ways that address, in whole or in part, the four elements, without fully engaging in a proportionality test as the Canadian Supreme Court did in Oakes – to allow for the demands of peace to be balanced gently against the activity of a continuously (re)negotiated political settlement.
For peace agreement constitutions with strong-form judicial review, the court is given the authority to (re)negotiate the constitution. Grégoire Webber provides a particularly useful understanding of the constitution, not as articulating an end state, but as an ongoing activity. Webber reasons that limitation clauses are a ‘promising avenue’ to allow for democratic (re)negotiating.Footnote 57 The principle of proportionality is one way for courts to navigate between conflicting constitutional rights. Constitutional limitations clauses often refer to democracy as a justifiable means to limit other constitutionally protected rights. As with the political and legal constitutionalism discussion, democracy is used as the benchmark against which limitations are measured. In a post-conflict transition, however, peace and democracy may have different requirements, and so, may require different sequencings. For this reason, democracy may not be the most suitable value against which to determine if the proportional limitation of a right is allowed under a peace agreement constitution. Rather, it may be peace that is the more relevant and critical value, since peace is the prerequisite to democracy and not vice versa.
Courts seeking grounds on which to limit constitutional rights recognise that putting an end to conflict is a proper and paramount purpose of any constitution. The constitutional courts in Bosnia-Herzegovina and Colombia, as the cases below will make clear, upheld limitations on constitutionally recognised rights and, in doing so, accepted the need for certain rights to be understood as proportional to peace. Implicit in these decisions is a view that peace is an appropriate constitutional purpose. This is the same conclusion arrived at in the Northern Irish decision (although in that case, they did not use proportionality). However, upholding a limitation using the principle of proportionality also allows space for the court to maintain discretion on which rights can be limited and the extent and time to which such limitations are valid. The use of the principle of proportionality is a mechanism for courts to continuously (re)negotiate the constitution in order to reflect the changing needs and customs of society. Nowhere are the needs and customs of society changing more suddenly and dramatically than in the transition from a state of conflict to a state of peace. In such cases, the principle of proportionality empowers the courts to reinterpret the political settlement between the elite-driven compromise and the ongoing transition.
IV. A new ‘peace’ jurisprudence
Cases from jurisdictions considered in this section serve to illustrate what I suggest is an emerging global ‘peace jurisprudence’. The conflict and peace process in Colombia is ongoing,Footnote 58 and while the direct conflicts in Bosnia-Herzegovina and Northern Ireland ended, both continue to be constrained by their pasts. The constitutions of Bosnia-Herzegovina and Colombia were both drafted as part of their peace processes, while the Northern Ireland Act (1998), that forms the basis for the Northern Irish judicial decision, operates as the implementing ‘basic law’ or ‘devolved constitution’ for that jurisdiction. In principle and fact the Belfast (or Good Friday) Agreement acts as a constitution for Northern Ireland, as the Judicial Committee of the House of Lords accepted in the case discussed below. It is this continued association to the peace process that make Bosnia-Herzegovina and Colombia interesting examples. The first case involving the Belfast Agreement and the case of Northern Ireland is also a noteworthy case, as it involves a sub-state government and constitutional arrangement within a more settled national constitutional setting.
Northern Ireland
The Northern Irish case involved a challenge to a failure by the Northern Irish Assembly to appoint a First Minister and Deputy First Minister by the deadline specified in the Northern Ireland Act. The Belfast Agreement, signed by the major political parties,Footnote 59 the British and the Irish governments, was a power-sharing agreement for Northern Ireland.Footnote 60 The Agreement was accepted by referendum in both the Republic of Ireland and Northern Ireland in May 1998. The British Parliament subsequently passed the Northern Ireland Act implementing the power-sharing arrangement in a devolved assembly for Northern Ireland. The Act outlined the procedure by which the First Minister and the Deputy First Minister were to be elected, stipulating that: ‘Each Assembly shall, within a period of six weeks beginning with its first meeting, elect from among its members the First Minister and the Deputy First Minister.’Footnote 61 Section 16 left open what would happen if the six-week deadline was overreached, only suggesting in section 32(3) that: ‘If the period mentioned in section 16 ends without a First Minister and a Deputy First Minister having been elected, the Secretary of State shall propose a date for the poll for the election of the next Assembly.’Footnote 62 By the time of the facts in question in the case, the 1998-elected devolved government had been suspended and restored three times. When the devolved government was restored on 23 September 2001 the positions of First Minister and Deputy First Minister had become vacant. A vote was held on 2 November 2001, which was unable to gain the necessary agreement between the then main Unionist and Nationalist parties. Undesignated members of the Assembly redesignated as Unionists in order to get the required cross-party support needed to elect the First Minister and Deputy First Minister on 6 November, by which time the six-week deadline had expired.
Mr Peter Robinson, a Democratic Unionist Party (DUP) Assembly member, brought a case on the grounds the elections were unlawful and that new elections should be held in accordance with section 32(3). The DUP, one of the then-potential ‘spoilers’ of the peace agreement which they opposed, were on the cusp of becoming the main Unionist party in Northern Ireland.Footnote 63 Having not been party to the Belfast Agreement, the DUP were at that time hopeful of dismantling it as they were making electoral gains vis-à-vis the then larger pro-Agreement Ulster Unionist Party on the back of their opposition to the Agreement. Their challenge therefore was more than technical – had elections had been called, the DUP stood a good chance of becoming the dominant Unionist party and of refusing to enter the power-sharing executive, effectively collapsing the central political mechanism and the Agreement.Footnote 64
The question before the Judicial Committee of the House of Lords was whether the holding of a vote for the First Minister and Deputy First Minister after the deadline of 5 November 2001 violated the Northern Ireland Act. In what appeared to be an activist, highly purposive reading of a text that was arguably ambiguous, the House of Lords, in essence read the time limit and requirement to hold elections as not applicable.Footnote 65 They did so on the basis of the relationship of the Northern Ireland Act to the Belfast Agreement. Lord Bingham, giving the leading speech in the majority, held that:
[T]he 1998 Act … was passed to implement the Belfast Agreement, which was itself reached, after much travail, in an attempt to end decades of bloodshed and centuries of antagonism. The solution was seen to lie in participation by the unionist and nationalist communities in shared political institutions … If these shared institutions were to deliver the benefits which their progenitors intended, they had to have time to operate and take root.
The 1998 Act does not set out all the constitutional provisions applicable to Northern Ireland, but it is in effect a constitution. So to categorise the Act is not to relieve the courts of their duty to interpret the constitutional provisions in issue. But the provisions should, consistently with the language used, be interpreted generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody. Mr Larkin [on behalf of the appellant] submitted that the resolution of political problems by resort to the vote of the people in a free election lies at the heart of any democracy and that this democratic principle is one embodied in this constitution. He is of course correct … [However, while] elections may produce solutions they can also deepen divisions. Nor is the democratic ideal the only constitutional ideal which this constitution should be understood to embody … this constitution is also seeking to promote the values referred to in the preceding paragraph, [namely the values set out in the Belfast Agreement].Footnote 66
The language in this decision reinforces the idea that the 1998 Act, implementing the Belfast Agreement, is in effect a constitution for Northern Ireland, and that as a constitutional document it embodies and protects the values and purposes of the peace agreement. The decision also makes note of the tensions between democratic values, such as electoral and parliamentary procedure and strict compliance with the constitutional text (in this case the Northern Ireland Act), and values of peace and reconciliation, which may possibly be worsened by enforcing such democratic processes even when the effect would be to end the possibilities for democratic self-government. The House of Lords does not use the language of proportionality explicitly (which would not immediately have had the same connotation in British constitutional practice in any case), however, they rejected the petition of the appellant on the grounds that the provision of the Act requiring elections should a First Minister and Deputy First Minister not be elected was not intended to constrain the Assembly from acting, and that the provision ‘must be read in context’.Footnote 67 The House of Lords sought to preserve the arrangements in the original agreement in its spirit, even at the expense of the strict literal meaning of the implementing Northern Ireland Act. This case was brought shortly after the passing of the Act, making the decision in this case relevant to the success of the peace accord. The position taken in this case is an example in which the underlying political settlement was endorsed and protected by the judiciary, at the expense almost of the wording of the Northern Ireland Act, demonstrating the essential role of this ‘least dangerous branch’Footnote 68 of government in managing the ongoing political settlement process.
Bosnia-Herzegovina
The Constitution of Bosnia-Herzegovina was drafted as an annex to The General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Agreement), the final peace agreement to resolve the war in the former Yugoslavia.Footnote 69 The Agreement was drafted in November 1995 under the supervision of the European Union special negotiator and delegates from France, Germany, Russia, the United Kingdom and the United States. The Agreement recognised the new state of Bosnia-Herzegovina as a decentralised federation composed of two entities, the Republic of Srpska and the Federation of Bosnia-Herzegovina. A power-sharing arrangement was agreed at the state federal level recognising Bosniacs, Croats and Serbs as ‘constituent peoples’, thereby limiting election to the presidency and upper house to members of these groups.Footnote 70 The power-sharing arrangement was a necessary compromise needed to allow the Dayton Agreement and in particular its commitment to a central Bosnian state to go forward.Footnote 71 The Constitution also incorporated the European Convention on Human Rights (ECHR) to ‘apply directly in Bosnia and Herzegovina’.Footnote 72
Over time the foundation of the power-sharing arrangement, the provision that Serbs, Croats, and Bosniacs only were ‘constituent peoples’, was challenged. In a case concerning the constitutionality of the electoral law the Constitutional Court of Bosnia-Herzegovina – comprised of a careful balance of Bosniak, Croat, Serbian and international judges found that:
the provision of Article 8 of the Election Law of Bosnia and Herzegovina [on the election of the Presidency], including Article V of the Constitution of Bosnia and Herzegovina, should be viewed in the light of discretionary right of the State to impose certain restrictions when it comes to the exercise of individual rights. The said restrictions are justified by the specific nature of internal order of Bosnia and Herzegovina that was agreed upon by Dayton Agreement and whose ultimate goal was the establishment of peace and dialogue between the opposing parties … [The articles] serve a legitimate aim, that they are reasonably justified and that they do not place an excessive burden on the appellants given that the restrictions imposed on the appellants’ rights are proportional to the objectives of general community in terms of preservation of the established peace.Footnote 73
Justice Feldman, one of the three international judges on the Court, wrote, in his concurring opinion, that he regarded ‘the justification as being temporary rather than permanent’, concluding, however, that ‘the time [had] not yet arrived when the State [had] completed its transition away from the special needs which dictated the unusual architecture of the State under the Dayton Agreement and the Constitution of Bosnia and Herzegovina’.Footnote 74 Justice Feldman’s reasoning hints that the political process will eventually hit a stage at which time a justification on the grounds accepted in this case would not be constitutional.
In a second case on a similar matter, the Court found that:
The … restrictions are justified by the specific nature of internal order of Bosnia and Herzegovina that was agreed upon by Dayton Agreement and whose ultimate goal was the establishment of peace and dialogue between the opposing parties given that the said provision was intentionally incorporated into the Constitution … [and that such restrictions] are proportional to the objective of general community in terms of preservation of the established peace [and] continuation of dialogue.Footnote 75
The decisions of the Bosnian Constitutional Court reflect the theories of Richard PildesFootnote 76 and Samuel Issacharoff,Footnote 77 who agree that constitutional courts tend to be restrained when power-sharing arrangements are in tension with human rights provisions. This article goes further than the conclusions made by Pildes and Issacharoff, in suggesting that the Court is picking up the principal of proportionality to safeguard the power-sharing arrangement, although the Court did exercise caution in these cases. Further, as Justice Feldman points out, the Court does not hold the constitutional authority to go beyond the Constitution in determining legal and constitutional issues to bring the state law or Constitution in line with Bosnia’s international obligations under the Convention.Footnote 78 However, as I discuss below, the European Court of Human Rights (ECtHR) came to the opposite decision in its judgment on the power-sharing arrangement, raising the question of whether and how regional or international courts apply a ‘peace jurisprudence’.Footnote 79 In the case being considered, the ECtHR rejected the reasoning of the Constitutional Court, upholding the individual rights of the applicants over the power-sharing arrangement, in effect, finding the Constitution to be in violation of the Convention and Protocol.
Colombia
The 1991 Constitution of Colombia replaced the 1886 ConstitutionFootnote 80 and formed the culmination of a peace process with a wide range of armed groups,Footnote 81 and reflects this relationship to the peace process in its design.Footnote 82 The Constitutional Court of Colombia, in accordance with Article 24, is entrusted to ‘[safeguard] the integrity and supremacy of the Constitution’.Footnote 83 In an early decision, the Court listed some of the constitutional values and principles that inform the constitution and constitutional interpretation, including peace as ‘captured in the preamble to the constitution’.Footnote 84 The Court has been judicially active and progressive,Footnote 85 rulings on laws that have bearing on the continuing peace process and in a way that supports the idea of an emerging ‘peace jurisprudence’.
In an initiative of the Uribe government from 2003 onwards, the government passed the Justice and Peace Law in 2005 (Law 975)Footnote 86 as part of a ‘peace process’ with the United Self-Defense Forces of Colombia (AUC). These were right-wing paramilitary groups who sought to uphold a ‘pro-state’ agenda and were often alleged to be acting in collusion with elements of the government, meaning that the concept of a ‘peace process’ between these groups and the government was contentious. However, both the AUC and the government signed the Santa Fe de Ralito Agreement in July 2003, setting out the terms for the demobilisation and reintegration of AUC members. The Agreement included provisions limiting the prosecution of demobilised members. As a part of this process, in the period between November 2003 and April 2006, more than 30,000 members from 35 armed groups under the AUC, participated in the demobilisation process.Footnote 87 The law established a ‘transitional justice’ mechanism for paramilitaries to demobilise and confess in exchange for reduced penal sentences of five to eight years.Footnote 88
A coalition of human rights organisations brought a case before the Constitutional Court under Article 241(4) of the Constitution,Footnote 89 challenging the content of 33 of the 72 articles of the Law on the grounds that there were irregularities in the legislative process in some of the rules; that the bill allowed for judicial pardons to members of illegal armed groups without procedural requirements; and that the measures were inadequate to the protections of victims’ rights. In its ruling, the Court,
named the pursuit of peace as a complex legal entity, as a collective right, an essential purpose of the Colombian state and a constitutional value. Therefore, the State had the authority to provide reasonable transitional instruments, justified and proportionate, even limiting other constitutional guarantees, in order to achieve peace. However, such limitations could not be based on the understanding of peace as an ‘absolute value’. Instead, the peace achievement should be compatible with the main aspects of the Rule of Law, in particular the rights of victims.Footnote 90
The Court determined that the alternative punishment mechanism was aimed at achieving peace, and so, found the law to be constitutional in general. However, the Court issued guidelines on victims’ participationFootnote 91 and access to reparations,Footnote 92 the meaning of ‘paramilitarism’ as a crime under the law, and introduced legal consequences to those participating in the mechanism who concealed informationFootnote 93 removing some of the more contentious aspects of the law. The Court ‘found that the settlement of the claim depended on the balance between the pursuit of peace and the rights of victims’.Footnote 94 The law remains controversial both in its passing and its implementation.
In keeping with a strict reading of the Constitution, the Court may review the procedural constitutionality of an amendment, not the content.Footnote 95 However, in a series of decisions from 2003,Footnote 96 the Court has introduced the constitutional replacement doctrine as a doctrine on ‘unconstitutional constitutional amendments’, similar to the Indian Supreme Court’s basic structures doctrine. The doctrine sanctions the Court to review the content of amendments on the grounds that it modifies or replaces the essential element of the Constitution.Footnote 97
The Santos government, elected in 2010, pushed forward the peace process with the Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN). As part of these efforts, the ‘Legal Framework for Peace’Footnote 98 was passed as a constitutional amendment, introducing Transitional Articles 66 and 67 as an ‘exceptional’ transitional justice framework to facilitate the peace negotiations and achieve ‘a stable and lasting peace’.Footnote 99 The amendment has been criticised for contravening certain human rights provisions of the 1991 Constitution and international human rights law.Footnote 100 However, the Court, exercising the constitutional replacement doctrine, ruled on the content of the Legal Framework for Peace amendment, accepting its constitutionality on the grounds that the essential principles of the constitution were not undermined by the amendment so long as it was proportional to the intended objective of facilitating peace.Footnote 101 Again, as in all the cases reviewed in this section, the Court was able to find a way to both honour the agreement so as to shield the political settlement and future peace negotiations, while tweaking it to better protect human rights, so as not to backtrack too far on the constitution’s protection of human rights and international law.
The most recent peace agreement reached between the Colombian government and the FARC must first be approved in a referendum. The law on the referendum was, by process, referred to the Constitutional Court (both sides having agreed to commit to its ruling), which was upheld, with some condition. For example, the decision of the referendum would be binding only on the executive and not on other branches of government, and the agreement, if approved, would not automatically be incorporated into the constitution or law. The peace agreement, however, was rejected in the referendum on 2 October 2016. Although, at the time of writing, the outcome of the peace process is unclear, it is likely that the Court will continue to play a role in the process, reinforcing this function that the Court has already taken on itself.
All three jurisdictions therefore, illustrate how courts often balance the requirements of the letter of the constitution, with its underlying purpose as being to bring about peace. They show the ways in which courts will adopt flexible approaches to ensuring the constitution is not used to defeat the underlying political agreement that enabled it.
V. International Human Rights Courts: Supporting or undoing the ‘peace jurisprudence’?
While so far I have focused on domestic jurisprudence, often these same cases and fact patterns are subject to subsequent international human rights court rulings. These have the capacity to take quite different decisions, posing the question of whether international or regional human rights courts understand the relationships of rights to peace differently than domestic courts.
The European Court of Human Rights
A claim was brought before the ECtHR concerning a challenge by two applicants, both citizens of Bosnia-Herzegovina, on the grounds that their Jewish and Roma origins made them ineligible to stand for election to the House of Peoples and the Presidency, both governed by the power-sharing arrangement. The applicants, Dervo Sejdić and Jakob Finci, did not have a declared affiliation with the three ‘constituent peoples’ barring them from standing for election, which, they argued, amounted to racial discrimination under the Convention and Protocols.Footnote 102
The ECtHR came to the opposite view from the Constitutional Court, finding, by fourteen votes to three, a violation of Article 14 (prohibition of discrimination) of the ECHR, together with Article 3 of Protocol No 1 (right to free elections) and Article 1 of Protocol No 12 (general prohibition of discrimination) to the Convention.Footnote 103 The Court concluded that Bosnia-Herzegovina had moved on sufficiently from the conflict settled by the Dayton Agreement, and, therefore the objective of peace articulated by the Bosnian Constitutional Court was not a sufficient reason for overriding the individual equality rights of the challengers. In spite of accepting that ‘[t]he nature of the conflict was such that the approval of the “constituent peoples” … was necessary to ensure peace …. [there have been] significant positive developments in Bosnia and Herzegovina since the Dayton Agreement’.Footnote 104 The Court, quite dramatically found that the Constitution which comprised part of the Peace Agreement violated the ECHR. The contradictory decisions from the Constitutional Court and the ECtHR on similar facts illustrate the quite different balancing acts possible when applying the doctrine of proportionality and the ways in which differently positioned courts will evaluate the imperatives of peace differently.
The decision of the ECtHR has been criticised by Christopher McCrudden and Brendan O’Leary,Footnote 105 who are concerned that the approach adopted by the Court in this case may reveal a new precedent of court’s being sceptical to consociational (power-sharing) arrangements. I agree with McCrudden and O’Leary’s argument that ‘the historical and political contexts in which the provisions of constitutions and peace agreements are drafted – especially peace agreements that are constitutional texts – need to be properly understood, especially by courts’ and that ‘[a]pparently repugnant provision may have defensible political origins’.Footnote 106 I also agree with their assessment of the ECtHR decision as being problematic, although it is necessary to note that there were strong dissenting opinions.Footnote 107
This case of Sejdić and Finci reveals how the international court came to its decision in contrast to the Bosnia Constitutional Court’s approach of proportionality. The imperative of peace had passed for the ECtHR, which in essence called ‘time’ on the transition during which a ‘peace jurisprudence’ could apply. In his dissenting opinion, Justice Bonnello is critical of the Court for ignoring the realities of the peace in Bosnia and is sceptical that the Court should ‘behave as the uninvited guest in peacekeeping multilateral exercises and treaties that have already been signed, ratified and executed’.Footnote 108 He also questions the Court’s reasoning that the situation in Bosnia had changed sufficiently making the power-sharing arrangement no longer necessary. The case may seem a clear violation of human rights, as Justice Bonnello concedes, however, the reasoning of the majority opinion can also be criticised for going too far in preserving the electoral rights of the two applicants over the imperatives of the peace agreement in the first place. In the case before the Constitutional Court, Justice Feldman (cited above) had signalled that time will move the political settlement on so that compromises such as that in Dayton may no longer be necessary, but that time had not yet arrived. There is also a serious question, as Justice Bonnello indicates, as to whether the ECtHR (or any international court) is the appropriate institution to determine when that time has come and peace has been achieved sufficiently to enable the dismantling of the power-sharing arrangements.
Inter-American Court of Human Rights
A more flexible approach to a ‘peace jurisprudence’ seems to be operating in the Inter-American Court of Human Rights. In a case before the Court concerning Colombia’s response to the murder of judicial officials, the Court held that the punishment for serious violations of the law must be proportionate to the crime and that ‘[e]very element which determines the severity of the punishment should correspond to a clearly identifiable objective and be compatible with the [American Convention on Human Rights]’.Footnote 109 The Court interpreted the Justice and Peace Law (Law 975), and in so doing, signalled, obiter dicta, that it accepted the Colombian Constitutional Court’s reasoning on the principle of proportionality:Footnote 110 ‘the punishment which the State assigns to the perpetrator of illicit conduct should be proportional to the rights recognised by law and the culpability with which the perpetrated acted, which in turn should be established as a function of the nature and gravity of the events’.Footnote 111 However, the Court stopped short of declaring the act of reducing sentences in consideration for demilitarisation and confessions as being consistent with the Convention:
Given that uncertainty exists with regard to the content and scope of Law 975, and the fact that the initial special criminal proceedings are underway which could provide juridical benefits to individuals who have been identified as having some relationship to the events of the Rochela Massacre, and taking into account that no judicial decisions have yet been issued in these proceedings … the Court deems it important to indicate, based on its jurisprudence, some aspects of the principles, guarantees and duties that must accompany the application of the juridical framework of the demobilization process.Footnote 112
In this case, the Court appeared sympathetic to the need for a contextual application of human rights law that was understanding of the imperatives for peace and appeared to view its role as one of sketching out the parameters that the law should stay within, in terms of ‘principles, guarantees and duties’, rather than give a black and white answer to the question of compliance with human rights law.
A second Inter-American Court judgment on the issue of amnesties after non-international armed conflict is worth mentioning briefly because it signals a reinforcing of this approach perhaps with a forward glance to Colombia’s peace process with the FARC, although this case concerns the situation in El Salvador. The Court again considered the human rights implications of El Salvador’s transitional justice mechanisms. The Inter-American Commission of Human Rights found that ‘[i]n approving and enforcing the [General Amnesty for the Consolidation of Peace Law (1993)], the Salvadoran State violated the right to judicial guarantees [Art 8(1)] … and the right to judicial protection [Art 25]’.Footnote 113 Having failed to comply with the recommendations of the Commission Report on Merits No 177/10 concerning the application of the Amnesty Law to the investigation of the alleged massacre of approximately 1,000 civilians between 11 and 13 December 1981 by the Salvadoran army, the Commission submitted the case to the jurisdiction of the Court. Justice Garcia-Sayán, in his concurring opinion, held that:
States have a legal obligation to address the rights of the victims and, with the same intensity, the obligation to prevent further acts of violence and to achieve peace in an armed conflict by the means at its disposal. Peace as a product of a negotiation is offered as a morally and politically superior alternative to peace as a result of the annihilation of the opponent. Therefore, international human rights law should consider that peace is a right and that the State must achieve it.
Thus, in certain transitional situations between armed conflicts and peace, it can happen that a State is not in a position to implement fully and simultaneously, the various international rights and obligations it has assumed. In these circumstances, taking into consideration that none of those rights and obligations is of an absolute nature, it is legitimate that they be weighed in such a way that the satisfaction of some does not affect the exercise of the others disproportionately.Footnote 114
The opinion of Justice Garcia-Sayán gives perhaps the best articulation of the concept of balancing of rights, which cannot be achieved all at once, and the principle of proportionality. Unlike the ECtHR, which went quite far in pushing for constitutional reworking in Sejdić,Footnote 115 the Inter-American Court, in La Rochela and The Massacres of El Mozote, has been more sympathetic to the fragile balance that is demanded for peace.
International courts are perhaps less well placed to make balanced judgments as to how the demands of justice should be weighed against the demands of peace as they may be less alive to the local requirements of the compromise and, in any case, may not be seen as the legitimate authority to navigate between these tensions. In such circumstances, it is perhaps best to follow the reasoning of the Inter-American Court in La Rochela, which set out broad parameters for what makes the compromise more acceptable in human rights terms. International courts that do not adopt a ‘peace jurisprudence’ risk intervening directly to ‘destroy’ the political settlement, with little capacity to assist in the reconstruction of a new alternative one. This was the risk taken by the ECtHR in Sejdić which, by prioritising individual rights over groups rights and failing to sufficiently understand the difficulty of constitutional change, put in jeopardy the foundations of the political settlement without providing an alternative solution. The Court failed to understand that ‘the philosophy and practice of contemporary constitutionalism offers a mediated peace’ and while in ‘theory and practice this is seen as second best to a just peace’,Footnote 116 it is overreaching to make a determination on what that ideal peace should look like if it is at the expense of undoing the compromise arrangement that was necessary for a state of peace in the first place.
VI. Conclusion
A peace process does not end with the implementation of a new (or revised) constitutional arrangement, and constitutional courts should be considered an instrumental actor in this ongoing process, and through judicial review engage as one of many actors in a continuing (re)negotiation. No matter what the original intentions of political actors to allow for a strong constitutional court, the peace agreement constitution cases considered in this article indicate that domestic courts often uphold the core tenets of peace, even when those clash with literal interpretations of the constitutional text or more absolutist notions of how human rights apply.
How then are we to understand the legitimacy or otherwise of these decisions? I suggest that courts seeking grounds on which to limit constitutional rights are recognising the ending of conflict as a proper purpose of the constitution. However, introducing a requirement of proportionality also allows space for the court to maintain discretion as regards those rights that can be limited and the extent and time to which such limitations are valid. The use of the doctrine of proportionality is a mechanism for courts to continuously (re)negotiate the constitution, which will shift as the state transitions from conflict. The courts in such cases are in a position to reinterpret the political settlement between the elite-driven compromise and the ongoing demands of transition.
Courts are relevant actors in considering how a state transitions throughout the political settlement. They are not neutral arbitrators of the constitution but may play a vital role as peacebuilders or spoilers of the peace agreement. They are less visible than other institutions and may uphold or unwind the political settlement more gently. Both domestic and international courts play this role. While domestic courts often are highly aware of the political context of their decisions and can produce a nuanced ‘peace jurisprudence’, international human rights courts, however, have often made different rulings and a review of how the same or similar cases have been dealt with illustrates examples where courts have adopted different approaches and become ‘unwinders of ethnic political bargains’.Footnote 117
The interpretation of ‘peace agreement constitutions’ demands that constitutional courts navigate between an elite pact and a more open constitutional way of doing business, where both remain important to any emerging constitutionalism. In the cases considered, the domestic courts were asked to mediate between the tensions inside the political settlement, and in all examples, interpreted peace to be the most important constitutional value, or the primary purpose of the constitution. As these examples make clear, judicial institutions are as important as political institutions in guaranteeing a stable political settlement. The judiciary has, in some ways, limited the pace at which development of the political settlement has taken place, maintaining the constitutional link to the peace agreement, while acknowledging that the link should not preserve elite pacts against challenge permanently or without limits. The constitutional courts in all cases used similar reasoning that has impact on the meaning of post-conflict peace and the future of the post bellum state. In so doing, the courts have understood the constitution as an activity rather than an end state, preventing the constitution from being frozen in time.
