Courting peace: Judicial review and peace jurisprudence

Abstract

Abstract:The current debate measuring the trade-offs between democracy and judicial review is unable to analyse the influence of courts in post-conflict states. However, a court with authority over constitutional review is commonplace in new constitutions, including those that have been drafted (or revised) as part of a political settlement. This article suggests that judicial institutions are as important as political institutions in sustaining a political settlement. As this article sets out, the parties to a peace process are required to make numerous compromises to negotiate new (or revised) institutional arrangements. Several cases are considered which illustrate how domestic constitutional courts were asked to mediate between tensions inside the political settlement. In all of the examples, the courts interpreted peace to be the most important constitutional value, or the primary purpose of the constitution. The judiciary played a role in maintaining the constitutional link to the elite pacts of the peace agreement, while acknowledging that the link should not preserve elite pacts permanently or without limit. The article argues, first, that these cases constitute evidence of an emergent global ‘peace jurisprudence’ based on purposive interpretation and a principle of proportionality that protects the foundations of the political settlement, and, second, questions the extent to which international courts are willing or able to adopt this jurisprudence.

Constitutional Courts: Approaches, Sequencing, And Political Support

“…In new and emerging democracies, constitutional courts are expected to navigate the evolution of the constitutional text in relation to the underlying political settlement process (Daly, 2017a). Transitional constitutional review occurs not only in transitions from authoritarianism to democracy, but also in transitions from conflict to peace (Sapiano, 2017). This rapid review looks at various constitutional courts established in transitional, fragile and conflict-affected contexts-the approaches adopted, sequencing in their establishment, and experiences with political support.…”

“…This rapid review looks at various constitutional courts established in transitional, fragile and conflict-affected contexts-the approaches adopted, sequencing in their establishment, and experiences with political support. There are few comprehensive accounts in the literature, however, of constitutional courts and their role in judicial review in the contexts of transition and/or as key actors in 'building democracy' (Daly, 2017a;Sapiano, 2017). Further, scholars have tended to focus on a relatively small number of case studies from the immediate post-Cold War era, such as South Africa and Colombia (Daly, 2017a).…”

“…The use of the constitutional court as an oversight mechanism in certifying the final constitutional settlement provides reassurance that the principles agreed therein would be honoured (Rodrigues, 2017). In the case of review of post-conflict peace agreement constitutions, courts often pay particular attention to the relationship of the constitution to an underlying elite settlement, in ways which while appearing politically activist are legitimate (Sapiano, 2017). For example, the BCC in 2015 declared that the electoral system of the two entities in the countrythe Federation and Republika Srpska-was inconsistent with the principle of non-discrimination, according to the national constitution and the European Convention on Human Rights (Zulueta-Fülscher & Welikala, 2017).…”

“…Transitional constitutional review occurs not only in transitions from authoritarianism to democracy, but also in transitions from conflict to peace (Sapiano, 2017). While post-conflict interim constitutions (see the section on sequencing) can serve similar functions as peace agreements, the former should focus more on principles and values, and on the organisation and powers of state institutions during the transitional period (Zulueta-Fülscher, 2015).…”

“…Similar to transitions from authoritarianism, courts reviewing peace agreement constitutions pay particular attention to the relationship of the constitution to an underlying elite settlement (Sapiano, 2017). In such contexts, courts may become enmeshed in political contests-pushed beyond strict legal adjudication towards a more heightened political role involving political judgement as to what furthering transition demands (Daly, 2017a;Brown & Waller, 2016).…”