Constitutional Advice in Transitional Justice Contexts
7.2.1 Constitution-Making Processes and Transitional
Justice
Transitions can be categorised in two types: from authoritarianism to democracy, and from violent conflict towards a peaceful political settlement.[423] Transitional justice entails the measures used by societies undergoing a transition to address gross human rights violations, with the aim of achieving justice and peace, amongst other goals.
In this process, constitutions are often seen as a vehicle to promote and enforce progressive democratic directions for transitions.[424] This is in line with the general belief that constitution-making processes are able to solve a myriad of goals, including postconflict reconstruction. Despite this belief, the constitution-making process often implies aligning the interests of different actors, often involving tension, high stakes and, occasionally, violence.[425]A contemporary constitution-making process might involve different internal groups seeking a stake in power, international and regional actors with political and financial mandates, the human rights community, academics, advocacy groups, and a transitional justice legal order, among others.[426] Such a process takes another dimension when it takes place in a transitional context. As stated by Bell, transitional constitutionalism entails efforts to transform an elite pact into a normative constitutional order.[427] Consequently, political struggles are relevant in the constitutional-making process.[428]
Nonetheless, it is important to highlight that transitional constitutionalism does not always imply the drafting of a new constitution. Constitutional arrangements, particularly in a transitional context, may take place in different ways, and no one pathway can be considered dominant or ‘typical’.[429] Some countries undergoing a transition from an authoritarian to a democratic rule have adopted what could be considered as full constitution-making processes, either through fast-track or lengthy drawn-out processes, endowing special constitutive assemblies or extraordinary conventions to draft and adopt the constitution, or relying on existing parliaments.
Others have incorporated devices of direct democracy in the constitution-making process, such as referenda or plebiscites, or entrusting their constitutional courts with a role of overseeing constitution-making processes embodied in constitutional amendments.[430] All these options may involve either a temporary transitional constitution, which paves the way for a long-term one or the straight forward adoption of a long-term constitution. Another possibility is an amendment to an existing constitution.Regardless of the process of transitional constitution-making taken, these often imply political settlements, understood as the formation of a consensus, usually between political elites, that their interests are best served by acquiescing to a framework for governing the State.[431] In addition to political settlements, transitional contexts require social settlements, as the society seeks to address past human rights violations and provide accountability mechanisms therefor, or when these settlements take place as peace agreements in post-conflict scenarios. In these contexts, transitional justice mechanisms, as well as their legal orders and processes, often provide constitutional advice that shapes the societies’ polities.
7.2.2 Constitutional Advice and Transitional Justice
The legitimacy of a constitution is strengthened by the constitutional dialogue that precedes its making. As such, a deliberative process that allows for the people’s fundamental values to be revealed is paramount. Constitutions imposed on a certain polity are unlikely to establish effective constitutional governments and systems. The constitutional development of a particular society may be considered as a dynamic process, rooted in local social realities.[432] In this context, constitutional dialogue weaves together a myriad of social interests, including from geographic, linguistic, religious, ethnic, economic, and gender-related, to communal and traditional values.[433] Consequently, constitutionalism has a double-edged focus: first, whether the constitution-making process has been conducted in a democratic, inclusive, participatory, and popular manner; and second, the ways through which the constitution can be made a living document by bringing it to the people so that they cannot just use it but understand, claim ownership, and defend democracy through it as well.[434]
As part of this process, there are several actors who, apart from having an interest in the process, may act as constitutional advisers.
The ideal role of a constitutional adviser is to provide information to decision-makers, meaning those who represent the popular will and decide what institutions are appropriate for a certain context.[435] Nonetheless, the understanding of appropriateness regarding constitutional advice in some societies, such as those tainted by past conflicts, might be highly disputed, particularly in the aftermath of such a conflict. Constitutional advice might then be characterised by tensions, according to different perspectives, backgrounds and affiliations in the previous conflict situation.The situation becomes more complex in transitional societies which, either through transitional constitutions and other frameworks, establish institutions for dealing with the remnants of the past in the society under transition. These institutions and measures range from prosecutions, truth and reconciliation commissions, methods of restitution of property and responsibility for politically motivated crimes, access to hitherto secret files, public apologies, purges and amnesties, to transitional justice mechanisms.[436] As will be seen below, these institutions may provide constitutional advice in some societies. Therefore, their capacity should be recognised as such to guarantee better coordination between constitutional advisers and transitional justice actors and ensure proper implementation of constitutional advice and transitional justice mechanisms. The challenges faced in the course of implementing these transitional justice mechanisms may make constitutional advice-giving in transitional societies unique and, sometimes, problematic. On the one hand, constitutional advice in transitional societies might be given via judicial review of these transitional justice regimes. On the other hand, the international community and particular international actors may dominate constitutional advice-giving in transitional societies.
In the case where constitutional advice is given through judicial review, it must be underscored that while constitutional texts or amendments in societies under transition capture and create the political settlement that grounds and stabilises the resultant political order, and beyond being a once-off codification of transition, they also enable its orderly development and mutation.[437] This is done through the constitutional tools envisaged in the constitutional texts, such as constitutional courts.
In fact, constitutional courts are key actors in transitions, as they ‘may in some situations function as key institutions in consolidating the democratic transition, maintaining social peace and stability while addressing, or at least “judicializing”, often severe problems of political and economic dislocation’.[438] Moreover, there may be times and contexts in which strong constitutional courts are and seem more democratic than elected executives and legislatives.[439]Where there is extensive involvement of the international community, the challenges are evinced by the tensions that can be created when international institutions, acting as stakeholders in the transitional justice processes, push forth their interests and prerogatives to be reflected in the normative frameworks that are aimed to prevail. Generally, the participation of outsiders in the constitution-making process is perceived as relevant in view of the additional expertise and insight they bring to the process.[440] Nevertheless, the needs of a transitional society may be different, and the involvement of external actors may be detrimental rather than beneficial. To begin with, such constitutions are in part directed outside the nation-State, and the constitution-making processes often prioritise the perceived demands of the international community.[441] As such, a balance between local and international norms often becomes a theme in the constitution-making process.[442] Tensions can be created in situations where transitional justice mechanisms and actors aim for a more direct application of universally recognised human rights and freedoms, and push for accountability mechanisms and reparations under international standards. These international norms might clash with domestic legislation and processes, as well as post-conflict agreements such as amnesties, legal standards for human rights accountability, sanctions and modes of liability.
In both of the above instances, other peculiar factors in the transitional context such as financial constraints, legal uncertainty, political opposition and temporality of the mandates of transitional justice mechanisms may pose further challenges to advice-giving. Societies undergoing transition usually have very poor economies as a result of long-term conflict or bad leadership.[443] It is therefore difficult in such situations to obtain the needed resources for high-level expertise in providing constitutional advice. Where there is a regime change, and tensions still exist between the opposition and the current regime, the measures adopted by the new regime can be challenged by the opposition to the extent of frustrating the process. Besides, transitional periods are filled with legal uncertainty as there is a contest between existing norms and the adoption of new rules.[444] In fact, the function of law in times of transition is still debatable.[445] In the absence of legal certainty, constitutional advice might be jeopardised by the interests of the advice-givers and the tensions between the different legal frameworks being pushed forward rather than the interest of the public. In instances where transitional justice mechanisms have a mandate to provide constitutional advice, the temporary nature of their mandate may be detrimental to the implementation of their advice, which will only be valid during their existence. Simultaneously, coordination and streamlining of the different types of constitutional advice might hamper the functioning and effectiveness of the transitional justice mechanisms.
7.3