Making Constitutions Work Post-War

Abstract

In states that are in or emerging out of conflict, what can we learn about constitutionmaking and implementation when we examine them from the status of that conflict, that is to say whether the state is post-war or post-conflict? What specific insights can we obtain when we ask this question from a South Asian perspective? This Special Issue was curated along these two main questions. The insights that emerge confirm that the prospects for constitutional reform can vary significantly depending on whether a state is in the midst of conflict or whether (for an identifiable reason) it can be designated as being post-conflict. It is possible to have an in-between stage too, a state where the “war” is concluded (at least formally) but a formal solution to the conflict has not been reached, known commonly as a post-war stage. These stages are of course not easy to identify but are indicative of distinctions that are useful to bear in mind when considering constitutional reform. In this Special Issue, five authors (including myself) reflect on these broader questions from the experiences of three South Asian jurisdictions. It has become clear that work on South Asia can benefit from intra-regional comparative work on the lesser known jurisdictions. Nepal, Myanmar, and Sri Lanka, in particular, are proximate jurisdictions that easily lend themselves to an intra-regional comparison on experiences and questions related to conflict. When I planned this project in 2019, it included Myanmar but the papers focusing mainly on Myanmar could not be finalized due to the ongoing crisis in the country. Draft papers were presented at an online workshop in 2020 on all three jurisdictions. After the Peace Agreement of 2006 and the adoption of a new constitution in 2015, Nepal is described as a post-conflict state. Even though sustained violence has ceased in Sri Lanka since 2009, a political settlement to the conflict has not yet been reached. The need for a constitutional solution to the conflict is raised from time to time. In Myanmar, reforms of the Constitution of 2008 were on the agenda over the last decade until the coup of 2021. In all three states, constitution-making and implementation have been closely linked with issues related to transitional justice, restoration of the rule of law, security sector reforms, and economic development. All three jurisdictions have had a settlement or agreement relating to the conflict. The conflicts involve ethnicity, historic injustices, religion, and gender in each of these societies. The experience of constitutionmaking and/or implementation in each of these states has been influenced and impacted by international or regional actors as well as international law. This Issue aims to add fresh voices to ongoing debates on these issues. Every effort was made, therefore, to seek submissions from authors who were from these jurisdictions and at an early stage in their career. Power-sharing is a key concern in all three jurisdictions and figures prominently in this Issue. Sanjayan Rajasingham in “Innominate constitutions and power-sharing in Sri Lanka” considers a new strategy adopted by moderates in Sri Lanka to introduce INDIAN LAW REVIEW 2023, VOL. 7, NO. 2, 147–149 https://doi.org/10.1080/24730580.2023.2232638