(Un)constitutional change rooted in peace agreements

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.