Processes of Constitutional Transitions in the Face of Territorial Cleavages

This chapter discusses the implications of territorial cleavages for the process of constitutional transition by drawing on the experiences of various countries such as Bolivia, Bosnia-Herzegovina, Ethiopia, India, Iraq, Nepal, Philippines, Scotland, Spain, Sri Lanka, and Ukraine. It first considers four variables that are likely to affect the process for constitutional transition within a state in which there are significant cleavages along territorial lines: the nature of transition, the nature of territorial cleavage, the challenges confronting statehood, and the involvement of international actors. It then examines four dimensions of the processes of transition that may be influenced by territorial cleavages: phases of the transition process, agenda setting, deliberation and ratification, and implementation and other matters. Finally, it explains how constitutional transitions are shaped by the postponement of final decisions on key matters through deliberate ambiguity, incomplete prescription or reliance on the future operation of rules on constitutional amendments.

Yemen’s Failed Constitutional Transition

This chapter examines why Yemen’s constitutional transition during the period 2011–15 failed. In 2011 a popular uprising forced Yemeni President Ali Abdullah Saleh to resign. Neighboring Arab countries soon got involved in steering the constitutional process, which included a National Dialogue to address the design of a new constitution. The dialogue recommended a new federal regime, but failed to resolve the critical issue of the number and boundaries of states. The document presented in January 2015 by the Constitutional Drafting Committee tasked to draft a new constitution was deeply flawed and became the trigger for civil war. The chapter first considers the context leading up to the National Dialogue before discussing the outcomes of the constitutional process and three lessons that can be drawn from it: the role and design of sub-national governance arrangements; political legitimacy and process in a constitutional transition; and a more integrated approach to transitions.

After the Scottish Independence Referendum

This chapter examines the independence referendum in Scotland, held on September 18, 2014, and its implications for the federal direction of the United Kingdom. The referendum saw 55 percent of Scots say “No” to the question: “Should Scotland be an Independent Country?”. Despite this result, the referendum has sparked a further process of decentralization. The chapter first describes the context that led to the Scottish independence referendum, focusing in particular on the success of the Scottish National Party (SNP) in the parliamentary elections of May 2011 and why the referendum emerged from—and was organized within—the normal contours of constitutional democracy. It then considers the period of constitutional engagement and the outcome of the referendum before concluding with an analysis of some of the lessons that can be drawn from it with regard to constitutional change and the issue of secession.

Sri Lanka’s Failed Peace Process and the Continuing Challenge of Ethno-Territorial Cleavages

This chapter examines why the peace process in Sri Lanka failed to find a constitutional settlement for the country’s ethno-territorial cleavage, and even enthroned a government hostile to Tamil aspirations for regional autonomy. It first provides a historical background on the ethnic division between Sinhalese and Tamils before turning to the period of constitutional engagement in Sri Lanka, focusing in particular on the Norwegian-facilitated peace process between the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE) and highlighting its various weaknesses as a model of conflict transformation and constitutional transition. The chapter also analyzes the outcomes of the peace process and the lessons that can be drawn from it. Two features of Sri Lanka’s political culture that became evident in the failure of the peace negotiations are identified: the hyper-competitive nature of party politics and the elitism of constitutional politics.

Dealing with Territorial Cleavages

This chapter examines how territorially concentrated populations and interests in Ukraine negotiated the constitutional process after the collapse of the Soviet Union in 1991, with particular emphasis on the so-called Faustian bargain between Ukrainian President Leonid Kravchuk and western Ukrainian nationalists. It first considers the historical background on the ethnic divisions in the Ukraine, especially between “Ukrainophiles” and “Russophiles,” before discussing the period of constitutional engagement from 1991 to 1996, which saw efforts to create a constitutional system that accommodates the country’s stark regional differences. It then analyzes the outcome of the Faustian pact, focusing on the violent conflict that erupted in 2014 following its breakdown and the collapse of Viktor Yanukovych’s regime. It also reflects on the lessons that can be drawn from the Ukrainian experience, with reference to how the nature of politics at the center affects politically salient demands for local autonomy.

“Godot Has Arrived!”

This chapter examines the process and modalities of constitutional reform that led to the federal restructuring of Nepal’s unitary state. It first considers the context that led to the question of federalism in Nepal, focusing on identity politics and the role of mainstream political parties and political elites during the period 1990–2006. It then looks at the period of constitutional engagement, taking into account the establishment of the first Constituent Assembly (CA1) and its eventual dissolution. It also discusses the outcome of federalization as well as the lessons that can be drawn from the process, especially with regard to territorial restructuring, identity politics, and the range of institutional responses to demands for social inclusion. A new Constitution was promulgated on September 20, 2015, but it did not bring about radical institutional restructuring and was met with growing protests in the Terai plains near the Indian border.

Indonesia

This chapter examines how Acehnese and Papuans negotiated the constitutional transition in Indonesia that led to the adoption of the Special Autonomy Law in 2001 for Papua and the Law on Aceh in 2006 for Aceh. Between 1998 and 2002, the People’s Consultative Assembly (Majelis Permusyawarahtan Rakyat) embarked on several constitutional amendments. In 2001, the state adopted two special autonomy laws to address grievances in Aceh and Papua. The chapter first provides a background on the territorial cleavages that have characterized Indonesian politics before turning to the period of constitutional engagement that culminated in the adoption of the Law on Aceh and the Special Autonomy Law. It then considers the outcomes of the constitutional transition, with particular reference to decentralization and territorial cleavages in Aceh and Papua, and concludes with an analysis of the lessons that can be learned from Indonesia’s incrementalist and responsive approach to constitutional change.

Dealing with Territorial Cleavages in Constitutional Transitions in Iraq

This chapter examines why constitutional transition has failed to resolve Iraq’s territorial cleavages, especially the one between Arabs and Kurds. It first provides the context that led to the Constitution drafting process and the establishment of Iraq’s first federal arrangement that saw the merger of provinces to form larger regions. In particular, it considers a range of contentious issues that arose during the constitutional negotiations, not least of which was the ownership and management of oil and gas resources. Furthermore, the push for a more traditional form of federalism left minority views (generally those of the Kurdish negotiators) unrepresented. The chapter also analyzes the outcomes of Iraq’s constitutional transition, including the deterioration of the Kurdistan Region’s economic and political crises, before concluding with an overview of the key lessons that can be drawn from the process.

States Reorganization and Accommodation of Ethno-Territorial Cleavages in India

This chapter examines how the so-called “states reorganization” during the 1950s and 1960s and its accommodation of ethno-territorial cleavages has made ethnic peace and political stability possible in multi-ethnic India. It first sketches the political context that led to state reorganization before discussing the process of constitutional engagement and the constitutional changes associated with the various reorganizations. In particular, it analyzes the nature of the state’s institutional responses to ethno-linguistic cleavages, taking into account the role played by the States Reorganization Commission. It also describes the outcome of these exercises and shows how “subnational autonomy” emerged as major incentives for the regional political elites. Finally, it outlines the comparative lessons that can be learned from India’s approach to progressive staging of state creation, focusing on the effects of ongoing neo-liberal reforms (post-1991) in the country that have posed newer challenges for state autonomy and future territorial changes.

Emergence and Transformation of Territorially Based Cleavages and Constitutional Responses in Ethiopia

This chapter examines the role played by territorially based, ethnonationalist forces in Ethiopia’s remarkable political transformation. It shows how the collapse of the socialist dictatorship and the victory of a coalition of ethnonationalist insurgent forces resulted in constitutional transition, culminating in a federal system designed to empower ethnonationalist groups at regional state level. This institutional design allowed such groups to exercise some self-rule at a regional level and ensure representation at the federal level, while also promoting relative peace and political stability across the country. The chapter first considers the context that led to the emergence and transformation of territorial cleavages in Ethiopia before discussing the period of constitutional engagement (1991–94) and its outcomes. It also considers the lessons that can be drawn from Ethiopia’s adoption of a federal system of government that places strong emphasis on ethnonationalism, along with challenges arising from decentralization, “ethnic federalism,” and political pluralism.