Peace agreements aiming to end intra-state armed conflicts often provide 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 has 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 Revolutionary Armed Forces of Colombia—People’s Army, FARC) 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 rethinking of the relationship between peace-making and constitutional reform, and existing constitutional frameworks in transitional countries.
The concept of material constitution is helpful to understand how particular constitutional orders are created and how they operate. It invites observers to look beyond the formal constitution, showing the shortcomings of the exclusive focus on the formal constitution and offering tools to enquire into the materiality that underpins it. Whilst the material study of a particular constitution may require a detailed and thorough research of the forces that condition a material constitutional order, it is possible to show the usefulness of the enquiry through selected aspects of a constitutional order. The aim of this chapter is to do that by explaining the military's role in constitution-making in Turkey. Whilst the military is a defining constitutional actor in Turkey, the recognition of this in the formal constitution is very limited. This chapter argues that only through accounting for the constitutional role of the military can the materiality of the Turkish Constitution be grasped, and a more accurate description of the Turkish constitutional order be provided. Through an overview of its role in the making and re-making of the 1961 and 1982 Constitutions, the chapter introduces the military as an ordering force in the Turkish Constitution. It explains the military's constituent and ongoing authority over the constitutional order and its role in guaranteeing the fundamental political objectives of the constitutional order.
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