(Un)constitutional Change Rooted in Peace Agreements

18 International Journal of Constitutional Law (forthcoming, 2020)

37 Pages Posted: 22 May 2020

See all articles by Asli Ozcelik

Asli Ozcelik

University of Glasgow, School of Law

Tarik Olcay

University of Dundee

Date Written: May 21, 2020

Abstract

Peace agreements aiming to end intra-state armed conflicts have often provided for radical constitutional change, with more than 100 peace agreements concluded since 1989 containing provisions on constitutional reform. When such constitutional change is envisaged to take place within the framework of an existing constitution, as opposed to the making of a new constitution, hard-achieved deals between peace-making parties are exposed to ‘the unconstitutionality challenge’. Although there is ample literature on the making of a new constitution during transitions from conflict to peace, implementing a peace agreement within an existing constitutional framework and ‘the unconstitutionality challenge’ to peace reforms have not been fully examined to date. In this Article, we first identify the modalities in which ‘the unconstitutionality challenge’ is directed at constitutional change rooted in peace agreements. We do so through a comparative survey and by particular reference to peace processes in Colombia (with the FARC-EP) and the Philippines (regarding the Mindanao conflict). We then examine the promise and limitations of three legal strategies in addressing the unconstitutionality challenge: (i) recourse to international law in assessing unconstitutionality, (ii) transitionalism in judicial review, and (iii) attributing supra-constitutional or international legal status to peace agreements. We conclude that while each strategy has some merit, their effectiveness may be limited where they lack legal feasibility or political purchase. The resulting intractability of the unconstitutionality challenge, particularly in jurisdictions where there is a strong commitment to legalism, warrants a re-thinking of the link between peace-making and constitutional reform and the importance of taking existing constitutional frameworks in transitional countries seriously.

Keywords: constitutional reform, peace agreements, judicial review, transitional justice, peacemaking, international law, unconstitutional constitutional amendments, Colombia, Philippines

Suggested Citation

Ozcelik, Asli and Olcay, Tarik, (Un)constitutional Change Rooted in Peace Agreements (May 21, 2020). 18 International Journal of Constitutional Law (forthcoming, 2020), Available at SSRN: https://ssrn.com/abstract=3605790 or http://dx.doi.org/10.2139/ssrn.3605790

Asli Ozcelik

University of Glasgow, School of Law ( email )

Stair Building
5-10 The Square
Glasgow, G12 8QQ
United Kingdom

HOME PAGE: http://www.gla.ac.uk/schools/law/staff/asliolcay/

Tarik Olcay (Contact Author)

University of Dundee ( email )

Scrymgeour Building
Park Place
Dundee, DD1 4HN
United Kingdom

HOME PAGE: http://dundee.ac.uk/people/tarik-olcay

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