Though constitutional drafting is a national affair, it is not isolated from the international legal setting in which it is embedded. Sometimes, the process of drafting itself may be directly governed by international law (for example, a United Nations mandate). On other occasions, constitutional design may be influenced by incentives generated by international law (such as EU membership). Either way, the creation of a new constitution invariably requires reflection upon the status and role of international law in the normative hierarchy of a country. Using Sudan as a case study, this chapter explores the significant role played by international law in the drafting of the Comprehensive Peace Agreement and the Interim National Constitution of 2005.

As Pakistan emerged from the shadows of military rule, dismembered and disenchanted, democratic governance and progressive politics promised a better future for the masses. The adoption of Pakistan’s first constitution by an elected assembly in 1973 added to the optimism for constitutionalism and rule of law. This optimism was quickly dispelled as the elected government of Zulfiqar Ali Bhutto (1970–76) proved itself to be as authoritarian as its predecessors and very much within the mould of postcolonial governance. The courts, which attempted to rely on the new constitution to protect fundamental liberties and provide a voice to the opposition, were soon undermined by constitutional amendments designed to curtail judicial review. Chapter 4 describes this failure of formal democratic constitutionalism in the face of an elective dictatorship. It also charts how, nonetheless, the superior courts insisted on minimal procedural safeguards against the enforcement of state security and public order laws and pushed the envelope of the judicial review of executive action.

During a negotiation, there is seldom the time or capacity for parties to reach a full and complete agreement on a comprehensive legal framework for postconflict governance. Instead, the parties often agree to a preliminary set of principles coupled with a general governing framework.They then set forth an agreed process for negotiating, designing, and implementing a national dialogue, the drafting or amending of a constitution, and elections. This chapter explores the puzzle of whether and how to address constitutional modification during peace negotiations in a manner that promotes a durable peace. It reviews the peace processes related to conflicts in Bosnia and Herzegovina, Colombia, East Timor, Guatemala, Iraq, Kosovo, Macedonia, Nepal, Northern Ireland, Somalia, South Africa, Syria, and Yemen to explore whether and how to address constitutional modification during the peace process; the timing of determining and executing a postconflict constitution-drafting process; whether to draft an interim constitution; whether to accomplish constitutional reform through amendments or by drafting a full constitution; how to approve and finalize constitutional modifications; and whether and how to incorporate issues of human rights.

The 1997 Thai Constitution explicitly enshrined a key element of proportionality – necessity – as a normative limitation on any legislative interference in a person’s constitutional rights, a first in the country’s history. Since then, the proportionality analysis (PA) has become one of the most essential grounds used by Constitutional Court in constitutional review. Interestingly, even when the country was governed from time to time by the military and ruled under an interim constitution, this doctrine continued to play a vital role as a general principle of Thai constitutional law.More importantly, in 2018, Constitutional Court recently spelled out, for the first time, three elements of PA – suitability, necessity and proportionality stricto sensu or balancing, emphasizing the significance of proportionality as a fundamental principle of the 2017 Constitution.Nevertheless, to date, while there have been about eighty instances of the Thai Constitutional Court applying PA, only on seven occasions were the laws declared unconstitutional for failing PA.This Chapter therefore argues that in Thailand, a legislative measure will most likely pass the proportionality test unless the law is manifestly disproportionate.