Author
Prof Shamshad Pasarlay
Organisation/Institution
University of Chicago
Country
UNITED STATES
Panel
Constitutional and Admin Law
Title
Constitution-Making in Phases
Abstract
In recent years, scholarship on the forms and politics of constitution-making has witnessed a remarkable surge. Scholars across various disciplines have espoused a range of innovative constitution-making mechanisms to navigate political transition, moderate communal tensions, and facilitate the writing of a formal, ideally democratic, constitution under profoundly fraught conditions. Within this burgeoning body of scholarship, however, a peculiar constitution-making strategy has thus far eluded thorough scrutiny. Several societies around the globe that transition from authoritarianism, civil war, or political unrest of other types have drafted constitutions that require a mandatory review in the short to medium term after ratification. These expressly mandated constitutional revisions take various forms and are demonstrably different from the standard amendments that can be deployed at any moment after the constitution is adopted. In the former instances, constitutional architects adopt an explicit and mandatory requirement of immediate, one-time, or regular, periodic review for certain (controversial) provisions or the entire constitution. These provisions practically extend constitution-making beyond the single, commonly glorified “founding moment” and ask that the constitution be negotiated over time. In this paper, I explore this hitherto understudied form of constitution-making and investigate why constitutions mandate immediate and periodic revisions and reopen the debate over some hard-fought bargains and settlements. Like several other forms of constitution-making in post-conflict settings, constitution-making in this expressly phased form is aimed at facilitating agreement, lowering the stakes of compromise during the first moment of constitutional creation, and allowing room for an ongoing process of gradual evolution. They allow parties to a constitutional bargain to sign onto a constitution - one that they would otherwise not embrace. Furthermore, I examine the promise and limits of mandatory revisions as a tool of phased constitution-making during turbulent moments of political transition and conflict resolution.
Biography
Shamshad Pasarlay is an assistant instructional professor at the University of Chicago. He teaches in the program in Law, Letters and Society. Shamshad Pasarlay has a Ph.D. in comparative constitutional law from the University of Washington in Seattle. His work has appeared in several reputed journals, including the International Journal of Constitutional Law, Asian Journal of Comparative Law, and Brooklyn Journal of International Law.
