Myanmar, Nepal, and Sri Lanka have attracted the attention of policy makers and scholars worldwide in the last decade as states emerging from conflict. In all three states, constitution-making and implementation have been central to their contemporary state building experiences. 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, a political settlement to the conflict has not yet been reached. Myanmar is engaging in constitutional reforms of the 2008 Constitution which, however, are heavily contested. While regions in Myanmar continue to experience different forms of conflict, peace negotiations continue between the Centre and regional groups. In Sri Lanka, constitutional reform in the immediate aftermath of the war further strengthened the Executive Presidency. The post-2015 multi-party constitutional reform process eventually stalled.
These diverse experiences have raised questions that impact on constitution-making. 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. These issues are influenced, determined, and compounded by ethnicity, historic injustices, religion, and gender in each of these societies. The experience of constitution-making and/or implementation in each of these states has been influenced and impacted by international/ regional actors and international law as well. Two examples are the United Nations and its agencies with regard to transitional justice, and China’s foreign direct investments and lending. Reception and response to international actors and international law by these states and within these states have varied, and range from cooperation to active resistance. Responding to these issues further requires determinations regarding the ‘end’ of war/conflict as well as ‘violence’ and its continuance/discontinuance.
A comparison between Nepal, Myanmar, and Sri Lanka with regard to constitution-making offers therefore a rich collection of experiences through which scholarly responses can be developed to these issues/questions. Several of these issues/questions are presented briefly below. Although they are interconnected in complex ways, for the purpose of clarity and presentation they will be sketched briefly and separately.
1. Diverse Political-Military Constellations
Nepal, Sri Lanka, and Myanmar offer insights into the ways in which diverse political-military constellations impact on the process, form, substance, and prospects for constitutional reform. In Nepal, the Peace Agreement of 2006 was followed by a constitution-making process. A new constitution was adopted in 2015 after a failed attempt in 2012. In Sri Lanka, the military defeat of the Liberation Tigers of Tamil Eelam (LTTE) in 2009 was followed by constitutional amendments that undermined principles of constitutionalism rather than addressing the root causes of the conflict. The attempts at constitutional reform post-2015 have not been successful thus far. In Myanmar, the central government is engaged in constitutional reform that is heavily contested. Meanwhile, conflicts at regional levels remain unresolved. How should constitution-making be understood within these highly divergent forms of conflict?
Constitution-making stands at the intersection of law and politics. In Nepal, Myanmar, and in Sri Lanka political settlements and/or the absence thereof determine the form and substance of constitutional reform. Political cultures in these states often undermine, contest, and even deny outright the foundational values of a constitutional democracy. Consequently, constitution-making can and have yielded partisan outcomes. Governments in Nepal, Myanmar, and Sri Lanka have often acted in ways that violate principles of constitutionalism. Political and constitutional cultures in these states, while highly divergent, throw up challenges to constitution-making.
3. Political Consensus and Visions of 'the State'
In post-war contexts, what constitutes ‘the state’ is highly contested. This contestation often emerges from disputed (or opposed) visions of the past as well as the future of the state. For instance, diversity based on ethnicity, religion, gender, location, or historical injustices and/or narratives (including experiences of colonization) can sustain contested visions of ‘the state’, which impact on constitution-making particularly with regard to power-sharing. As an example, in Myanmar, some regional ethnic groups understand the proposals for power-sharing as providing for the ‘coming together’ of the regions, whereas the centre understands it as a matter of devolution of power.
Political consensus and strategies for its development become crucial in these contexts. With the military defeat of the LTTE, the ‘triumphalist’ government in Sri Lanka had very little political incentive for seeking a political solution to the conflict. Rather, constitutional reform was utilised for the consolidation of political power of the Executive President. Where some consensus for seeking political solutions to the conflict exists, as in the case of Myanmar, the constitution-making exercise became a significant aspect, if not the central aspect, of the strategy for resolving the conflict. The constitution-making process is expected to do the work of a peace agreement/ political solution to the conflict. In the Nepali experience, a Peace Agreement in 2006 was followed by the adoption of a constitution in 2015, thereby securing some consensus and support for the Nepali state.
4. Approaches to Constitutional Reform
In post-war contexts, governments can be vulnerable and precarious. It is in this state of precarity that constitutional reform is anticipated. In this context, scholars who are skeptical of sweeping constitutional reforms have proposed ‘constitutional incrementalism’ as the only possible way forward. In the absence of a peace agreement, the government has no political framework within which it can be held accountable when it engages in constitution-making. ‘Constitutional incrementalism’ therefore allows for reform on the basis of minimum consensus while postponing contentious or difficult aspects to be resolved in the future. However, in practice, incrementalism has been a disincentive, particularly for non-state actors, to remain committed to constitutional reform. Therefore, other scholars argue in favour of wide-sweeping constitutional reform that can signal a fresh start.
5. Constitutional Recognition of Political Communities
The discourse on constitutional reform engages multiple levels: the local, the national, and the international. At each level, the ‘centre’ and the ‘periphery’ are constantly being constituted and reconstituted. For instance, the lack of political bargaining power of ethnic minorities at the national level can be contrasted with their consolidation of political power at local levels and the recognition given to them at the international level. Likewise, the growing recognition of the right of the public to participate in constitutional reform and the increasing influence of social media are impacting the behaviour and expectations of stakeholders at these different levels. Past experiences in attempting constitutional reform in these states highlight the tension between ensuring the ‘buy in’ of the political elite on the one hand, and ensuring transparency, public participation, and inclusion on the other.
6. Constitutional Reform and Transitional Justice
Constitution-making in post-war contexts is shaped, in substance and in form, by developments in international law. In Nepal, Myanmar, and Sri Lanka, the United Nations has had significant input in shaping the agenda of transitional justice, whereas constitutional reform has been driven by domestic agendas. However, demands for transitional justice often indirectly influence and shape the constitutional reform exercise. The developing principles of international criminal law, international humanitarian law, sustainable development, the peace and security agenda, etc. have influenced the process indirectly by shaping the discourse and expectations of constitutional reform.
7. Sustainable Development
Often economic development, trade negotiations, and foreign direct investment have been viewed as distinct from constitutional reform, both in scholarship and in practice. Scholarship in the field of constitutional law does not pay much attention to economics, development, or to post-war reconstruction. However, labour movements and environmental activists have drawn attention to the way economic and trade related decisions of governments can and have undermined the objectives that are sought to be secured through constitutional reform. This includes, for instance, concerns regarding public participation and consultation. The ‘Port City’ development project being carried out in Sri Lanka, and the government’s declared intention to establish a separate jurisdiction for the project, is one such example. It is in this context of complex inter-connected realities that the political economy of constitution-making in post-war contexts evolves.
A diverse range of actors engage in contemporary exercises in constitutional reform. The range includes political elite, local and international experts, civil society activists, and the media. Non-governmental organizations (local/international), inter-governmental organizations and aid agencies too often support or engage with constitutional reform exercises. In Nepal, Myanmar, and Sri Lanka, geo-political interests have triggered different forms of engagements by regional actors with constitutional reform. These engagements raise questions regarding nature, timing, relevance, desirability, etc of a diverse range of actors to constitutional reform.
'Post-war' as a distinct category?
The above-described themes highlight the need to revisit and review existing approaches to constitutional reform in conflict-affected states. There has been some debate on the sequencing of, and linkages between, transitional justice, restoration of the rule of law, security sector reforms, and economic development in these contexts. But these debates have not been examined adequately from the perspective of constitution-making and reform. How do the many expectations, at multiple levels, impact on constitutional reform – its political likelihood, its process, and substance? What new theoretical developments, if any, can be identified in this area? Do these practical and/or theoretical developments demand the recognition of ‘post-war’ (as opposed to post-conflict) constitution-making as a distinctive field? Current literature on constitution-making in conflict-affected states does not recognise ‘post-war’ as distinct from ‘post-conflict’. In a ‘post-war’ context, as in Sri Lanka, armed hostilities have ceased but there is no agreed political or legal settlement to the conflict. In a ‘post-conflict’ context, arguably as in the case of Nepal, some political arrangements would have been made to resolve the conflict. The line between these two categories cannot be drawn absolutely or permanently. Myanmar is an example of how a state can be in between these two categories. In these contexts what is the relevance, if any, of ‘a post-war state’ as a category for constitution-making?