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Constitution-Making Gone Wrong
Abstract
With the recent wave of regime change in the Middle East, the process of constitution-making must again become a central concern for those interested in comparative law and politics. The conception of constitutional politics associated with Jon Elster and Bruce Ackerman views constitution-making as a potentially higher form of lawmaking with different dynamics than ordinary politics and states that ideally, constitution-making should be designed so as to be a relatively deliberative process where the role of group and institutional interests is deemphasized. I argue that a focus on achieving deliberation and transformation through constitution-making is unrealistic in certain situations and that theorists should instead often focus on avoiding worst-case scenarios of authoritarian regimes or breakdowns of order. Constitution-making moments must not be idealized; they are often traumatic events. In these situations, the central challenge of constitution-making is not to achieve a higher form of lawmaking but rather to constrain unilateral exercises of power. I use two recent Latin American examples where the constitution-making process was problematic to illustrate the difficulty. If political forces in assemblies are left unconstrained or poorly constrained, they can reshape politics to create a quasi-authoritarian regime (as occurred in Venezuela), or their attempt to impose a constitution on a reticent minority may create a constitutional breakdown (as nearly occurred in Bolivia). Some of the normative recommendations of followers of the dominant model – for example, that constitution-making should be highly participatory and should be undertaken in a specialized constituent assembly – emerge as problematic under this reconceptualization because they may increase the likelihood of a worst-case outcome. Finally, I apply my theory in order to get some analytic leverage on the current constitution-making process in Egypt. Contrary to most observers, I argue that the military may be playing a pro-democratic role by helping to constrain otherwise dominant electoral groups.
... In the constitution-making literature, whilst some scholars contend that inclusion in a process of creating a new constitution is critical for the constitution's legitimacy (Elkins, Ginsburg, and Blount 2011;Miller 2010a, 627-38;Widner 2005) other scholars cite the dangers of a highly participatory constitution process (Landau 2013;Partlett 2012). From one perspective, designing a constitution is considered a moment of 'high' law-making that sets out the 'core and constitutive commitments' of a polity (King 2013, 73) and as such should be a deliberative process that is as inclusive as possible of a state's societal groups (Hart 2010;Ndulo 2010). ...
... A second perspective is that elite-led constitution-making may produce a more coherent constitution than one produced through extensive deliberation with multiple groups (Wheatley and Germann 2016). This view contends that civil and political rights may be better protected in a constrained, rather than an inclusive, process (Landau 2013). For example, the involvement of multiple stakeholders could threaten textual coherence and internal consistency of the constitution (Ginsburg, Elkins, and Blount 2009, 210). ...
... In the constitution-making literature, there is a key division between those who advocate highly participatory constitution-making involving widespread consultation with political actors and civil society groups (Miller 2010b;Widner 2008), and those that contend that an elite-led process will produce a more coherent constitution incorporating guarantees of civil and political freedoms (Landau 2013). The findings presented here suggest, first, that inclusion needs to follow both a mass public and an elite dimension. ...
Rebuilding a contested state following an authoritarian breakdown requires widespread support for the new political system from all communal groups. A central theoretical assertion of the institutional design literature is that inclusion of communal groups in institutional frameworks creates support for a political system. However, empirical evidence to either verify or refute this claim is inconclusive. A survey of institutional design literature reveals an implicit distinction between de jure inclusion (inclusive frameworks) and de facto inclusion (inclusion in practice). To date, this distinction has not been sufficiently differentiated and systematically examined, with large-N studies most often examining the impact solely of de jure inclusion on support, and case studies failing to make a clear conceptual distinction between these two elements of inclusion. To address this gap in the research, this study asks: during a period of political transition in a contested state, does de jure inclusion, de facto inclusion, or a combination of both, build support for a political system? To investigate this question, the study undertakes a small-N comparative study of institutional design during political transitions in the Middle East and North Africa region. Four countries are selected that underwent rebuilding of their political institutions following authoritarian breakdown: Egypt, Iraq, Libya, and Tunisia. Four hypotheses are advanced that capture the expectation that either de jure inclusion, de facto inclusion, or a combination of both, will build support for a political system. The hypotheses are investigated in two key institutional design moments in the selected countries: electoral system design and constitution-making. The study finds that de jure inclusion is not a sufficient mechanism to create support of all communal groups for the political system, whilst de facto inclusion may be sufficient. In no case where de jure inclusion alone was observed, was support for the political system present. In all cases where de facto inclusion was present, there was support for the political system, regardless of whether or not there was de jure inclusion. The study contributes to our understanding of the rebuilding of contested states following authoritarian breakdown, suggesting that, alongside an emphasis on de jure inclusion in electoral system design and constitution-making, de facto inclusion deserves consideration.
... While most constitutional procedural rules vary substantially across countries and depend on national characteristics, referendums for constitutional ratification are used across the world. This trend has led many to claim that public participation is emerging as virtually the only international norm in constitution-making (Hart, 2010, p.42;Franck and Thiruvengadam, 2010, p.14;Landau, 2013, p.934) Recent years have seen a wide range of papers focusing on the process of constitution-making (for example, Banks, 2008;Tushnet, 2008;Barnett, 2009;Partlett, 2012;Landau, 2012Landau, , 2013. Given the growing popularity of referendums, the question of which majority rule procedures a specific country decides to implement is relevant for policy-making. ...
... 20 For the purposes of this analysis, we consider that constitution-making processes have the objective of ensuring the legitimacy and the stability of the constitution being written. This idea has been extensively supported by the literature (Banks, 2008;Barnett, 2003Barnett, , 2009Carey, 2009;Hart, 2003;Jackson, 2008;Landau, 2012Landau, , 2013Tierney, 2009). ...
... In this case, the assembly and the ratification rules within the assembly lose their constraining power due to the fact that one party is strong enough to withstand these rules. These types of scenarios increase the risk of establishing a constitution with low levels of legitimacy and stability (Landau, 2013). ...
The paper addresses the divergence in majority rules at the moment of creating or reforming constitutions.
While constitutions require, in most cases, qualified majorities in order to be approved at the constitutional
assembly, they normally require only simple majorities to be ratified at the referendum. We analyze the set of
conditions under which each majority rule is preferable for constitutional referendums. We argue that the
simple majority requirement for referendums in constitution-making, which is nearly universally used, lacks
a clear theoretical justification. Qualified majority rules increase legitimacy and provide additional checks on
the drafters. We further highlight when simple majority rules have advantages: when decision-making costs
in the referendum are high. Thereafter, we present an evaluation mechanism to identify the cases in which
each majority rule should be used to increase stability and legitimacy. We then apply this evaluation
mechanism to the constitution-making processes in Poland, Bolivia and Egypt, which are three examples
of diverging majority rules.
... From an empirical perspective, comparative studies suggest that it is difficult to establish a strong causal connection between process and outcome in constitution making, partly because there are too many factors that influence the drafting process (Lerner & Landau, 2019;Lerner, 2022). We also now know that not all constitution making processes end up strengthening democracy and mitigating political conflict (Landau, 2013). Moreover, recent empirical research has revealed the complexities involved with constitutional compliance, which is contingent on various institutional, cultural and personal factors (Gutmann et al., 2023;Chilton & Versteeg, 2020;Law & Versteeg, 2013). ...
... While the past decade has been marked by a worldwide struggle over democratic values and increasing concerns about democratic stability in various parts of the globe, political leaders as well as the public still consider constitution making as a central tool for legitimacy enhancement, conflict resolution and policy reforms (Bisarya, 2020). However, not all constitution-making processes end up strengthening democracy or mitigating political conflict (Landau, 2013). A better understanding of where and how constitutional advice has been most effective would be helpful not only for promoting peace and democracy; it would likely also be helpful in restraining the abuse of constitution making as a masquerade for advancing pro-authoritarian reforms that could hinder and further weaken democracies around the world. ...
The article presents the first systematic comparative study on the growing involvement of international organizations in national constitution making around the world. Over the past three decades, the emerging field of international constitutional advising has undergone an intense process of institutionalization and professionalization, mirroring the increasing role constitution making is playing in both national and international politics. Despite the vast scope of the phenomenon, the involvement of foreign constitutional advisors in domestic constitution-drafting or constitutional reforms has received little scholarly attention. This article takes the first steps towards addressing this lacuna empirically, by introducing a new dataset on 46 international organizations involved in 730 constitutional advising projects in 145 countries between 1989 and 2017. We classified the organizations based on their type, their headquarters’ location, the countries they target, the kind of advising activities they perform and the level of directness of the advising intervention. While generally, we find a significant correlation between more direct constitutional advising activities and larger relative changes in the quality of democracy and larger numbers of constitutional systems in a country, the article suggests avenues for more nuanced research to better understand constitutional advising’s impact.
... Fabbrini 2015b;Ferrajoli 2019, 96). Nevertheless, to my knowledge, no concrete proposal for an eventual European constituent process design has been suggested from the academy, which is striking after all the development of the constitution-making theory of the last two decades (Tushnet 2013;Blount, Elkins, and Ginsburg 2012;Elster 2012;Eisenstadt, Levan, and Maboudi 2017;Arato 2017;Böckenförde, Hedling, and Wahiu 2011;Brandt et al. 2011;Braver 2017;Banks 2008;Colón-Ríos 2011;Hart 2003;Landau 2013;Saunders 2012). Accordingly, the public and academic debate should be encouraged by setting out concrete political and legal ways that formalize these statements. ...
... The participatory dynamic itself promotes becoming familiar with the Constitution and makes it easier for citizens to make a tool of it to defend and exercise their rights (Haysom 2003;Widner 2008Widner , 1519. Equally, citizen participation encourages the inclusion of new players, movements and social organizations in public life beyond political parties, generating a greater level of pluralism (Landau 2013) that, in turn, favors dialog and the achievement of agreements that can contribute to closing past wounds, resolving conflicts and reducing the gap between different social sectors (Benomar 2004, 88;Samuels 2006, 4). ...
En los últimos tiempos, académicos, intelectuales públicos, movimientos políticos y sociales y destacados líderes políticos europeos de diferentes orientaciones ideológicas han hecho un llamamiento a la creación de unos Estados Unidos de Europa. Desde su punto de vista, enfrentar la crisis de legitimidad de la UE requiere una renovación democrática a través de un proceso constituyente. Sin embargo, estas declaraciones no han sido acompañadas por un diseño específico sobre cómo instituir esta nueva Constitución Europea. Con el objeto de discutir las posibles vías de poner en práctica esta idea, este artículo presenta las principales formulaciones del poder constituyente europeo y su traducción a un diseño concreto de constitution-making.
Recibido: 16.06.2020
Aceptado: 21.12.2020
... Many Latin American cases, for example, appear to follow this argument. In cases such as Venezuela , Bolivia (2006-09), and Ecuador (2007-08), newcomer parties dominated the democratically elected constituent bodies where each of them could function without any major constraints from the opposition (Landau 2012;Negretto 2017). In such cases, public consultation lends credibility to the newcomers' claims to execute the will of the people when there is less representative pluralism in the constituent body. ...
Since 1974, two out of every five constitutions (40.3%) were prepared via processes that included public consultation. The reasons for adopting these participatory mechanisms, however, are largely unexplored. I argue that public consultation is a tool for elite contestation of power. Introducing an original dataset of public consultations in constitution-making processes from 1974–2021 (n = 300), I find that in democracies, factional majorities and newcomer elites use public consultation to legitimate a break from the status quo. In autocracies, governing coalitions that depend on performance and enjoy greater party institutionalization push for public consultation to preserve favorable power-sharing arrangements.
... 143 Dominant political actors are able to manipulate these constitution-making processes because stable rules and institutions are often absent during transitions. 144 For instance, reflecting the manner in which it was drafted, the Egyptian Constitution fails to provide clear mechanisms for citizens to challenge state violations of civil and political rights and does not provide for horizontal accountability to check the powerful military and judiciary. The Tunisian Constitution, on the other hand, creates a new constitutional court to ensure the protection of constitutional rights. ...
... Although it is sometimes not easy to reach a constitutional compromise, the mere lack of proper consideration of these theoretical assumptions increases the risk of constitutional destabilization and results in frequent constitutional changes, and sometimes also the repetition and cyclical nature of serious system problems. As a consequence, it may result in worse systemic effects than failure to implement a change 17 . Of course, specific choices regarding constitutional changes may be debatable, because in practice the change of the constitution may sometimes be treated as a platform of social and political rivalry 18 . ...
Constitutional change is inherently a significant social and political event which, given the assumed stability of the constitutional order in the state, should not happen too often. A significant effect of any change to the constitution should therefore be its systemic usefulness in the longer term - corresponding to the concept of the durability of constitutional change. The aim of this article is to present the theoretical determinants of this change from the perspective of its assumed durability, taking into account the circumstances related not only to the constitutionally formalized mode of amending the constitution, but also taking into account other systemic factors, i.e. mainly social, political and legal conditions of the functioning of a given constitution. As a result of the adopted research assumptions, the analysis carried out here is characterized by a functional approach and concerns the following detailed issues: the theoretical characteristics of constitutional change and the theoretical determinants of this change in the context of its assumed durability.
... It held that the Constituent Assembly, as the direct manifestation of the people's "constituent power", was a supra institution capable of wielding such authority 63 . Ironically, finding the Supreme Court a potential roadblock, the Constituent Assembly even shut down the Supreme Court soon after 64 . ...
... 129 It may be said that this model has three main implications. 130 First, new constitutions should not be made by ordinary legislative bodies but by especially constituted constitutional conventions. Second, the constitution-making process should be participatory. ...
This article revisits the legitimacy question as it touches the Nigerian 1999 Constitution, bringing to the discourse a review and application of pertinent theoretical perspectives on constitution making and constitutional legitimacy. This theoretical and pragmatic approach introduces a refreshing angle to the debate, revealing the paucity of any attempt to ascribe any legitimacy claim to a constitution with a doubtful normative claim and fraudulent attribution of its source and legitimacy to the people. The author finds the consent basis of constitutional legitimacy as most attractive to a divided state like Nigeria, and concludes by advocating the adoption of a blend of the principles of the constituent assembly and post sovereign constitution-making models for the production of a new people-driven and inclusive constitution to meet the needs of the Nigerian people.
... Arato 2017, p. 310-327. 59 On the role of internal and external mechanisms of constraint, see Issacharoff 2007, Landau 2013, and Negretto 2013 participants such as courts and improve the constitutional text in accordance with their objections 60 . The post sovereign model, in this idealized presentation, offers a completely different way of conceptualizing constituent assemblies. ...
... Of course, no law plays this role more than that of the constitution, the fundamental law. Constitutions are often viewed as engaging the "constituent power" of "We the People" (Landau 2013;Roznai 2017: 123-5). This suggests a distinct fit between a constitution and a particular national community. ...
This framework introductory chapter to our book Constitution-Making and Transnational Legal Order (CUP 2019) addresses the transnational flow of ideas and institutions that shape how national constitutions are made. It examines the array of transnational influences, actors, and ideas that provide the very grammar for constitutional projects. The introduction first traces the history of transnational constitution-making to counteract the powerful myth that constitutions reflect exclusively national content and processes. It then lays out the theoretical framework of “transnational legal orders” developed by Halliday and Shaffer and applies it to processes of transnational legal ordering in the making of national constitutions. After summarizing the book’s case studies, the chapter assesses the ways that the case studies contribute to theorizing about the rise and fall of transnational legal orders.
... In Venezuela, more dramatically, the Supreme Court tried at several points to restrain the Chavez-led constitution-making process of 1999, while at the same time accepting the basic ability to rewrite the Venezuelan constitution by making use of constituent power theory. 63 These cases rest on a murky theoretical foundation. Nevertheless, they are perhaps best understood as attempts to ensure that the process reflected the true 'will of the people', even though they ultimately proved to be ineffectual. ...
The unconstitutional constitutional amendment doctrine has emerged as a highly successful, albeit still controversial, export in comparative constitutional law. The doctrine has often been defended as protecting a delegation from the people to the political institutions that they created. Other work has noted the doctrine’s potential utility in guarding against abusive constitutionalism. In this article, we consider how these justifications fare when expanded to encompass claims against the original constitution itself, rather than a later amendment to the text. That is, beyond the unconstitutional constitutional amendment doctrine, can or should there be a doctrine of an unconstitutional constitution? Our question is spurred by a puzzling 2015 case from Honduras where the Supreme Court held an unamendable one-term limit on presidential terms, as well as protective provisions punishing attempts to alter that limit, to be unconstitutional. What is particularly striking about the case is that these provisions were not later amendments to the constitution, but rather parts of the original 1982 constitution itself. Thus, this article examines the possibility of ‘an unconstitutional constitution’, what we predict to be the next trend in global constitutionalism.
... If the executive and legislative branch of government can prioritize the implementation of certain rights over others, this broadcasts a public signal as to the nature of constitutionalism writ large. This is arguably a suboptimal outcome, even in regimes whose constitutional turnover comes in places characterized by institutional deficiencies (Landau 2013). ...
... 22 Unlike the Venezuelan 1999 Constitution, the Bolivian 2009 Constitution was negotiated with (and not imposed to) the opposition. 23 This is how the initial idea of the MAS to establish unlimited Presidential terms was forced to change during the debates of the constitution-making process. 24 As a result, the 2007 draft allowed for only one immediate reelection for the President and the Vice-president, but it made an exception with Evo Morales and allowed him to run for two additional terms because his first term initiated three years before the enactment of the Constitution and the rule was not supposed to be applied retroactively to him (Disposición Transitoria Primera.III). ...
... Though participatory constitution-building in post-conflict states and in states in transition from authoritarian rule is a trend that appears to be here to stay, the limitations of what participation can achieve in and by itself are increasingly being recognized (Landau, 2012;Saati, 2015). It appears that, without some baseline agreement amongst political elites concerning fundamental constitutional principles, there is not much that public participation in the making of the constitution can accomplish (Saati, 2017b). ...
Participatory constitution-building is a trend that appears to be here to stay; particularly when new constitutions are drafted in the aftermath of war or during transitions from authoritarian to democratic rule. Anticipations as to what the involvement of the public will achieve are several, and scholars are only recently starting to systematically investigate whether or not these expectations find empirical support. Previous research has shown that public participation in the making of the constitution can have certain positive effects at an individual level of analysis, but that the actions of political elites during constitutional negotiations might affect outcomes at a macro level of analysis more than what has hitherto be acknowledged in this strand of research. Nepal is one of the most recent cases of participatory constitution-building, and the country carried out not only one, but two, such processes within a time period of only seven years. The first resulted in failure as a draft constitution was never finalized; the other in success with the adoption of a constitution in 2015. This article takes an interest in exploring and comparing these two separate processes as regards the extent of public participation vis-à-vis political elite negotiations and bargaining behind closed doors. The article finds that what primarily sets the two processes apart, is how broad based public participation and secluded elite negotiations were sequenced. In light of other empirical examples, the article also discusses if elite bargains ought to be struck before the general public are invited to participate.
... In post-conflict situations, for instance, the representativeness and transparency of the constitution-making body has been said to be less significant, given the different dynamics of the process and the premium on compromise (Widner 2008(Widner : 1533. There are also contexts where unilateral exercises of power can divert the constitutional process, which makes idealising participatory constitution-making a mistake (Landau 2013). ...
Popular participation has become a hot topic in constitution-making, taking the form of referendums, popular consultations, civic education, and citizen assemblies, among others. Underlying this rise of mechanisms of popular involvement in constitution-making are normative justifications for the direct participation of the people in such processes, including higher legitimacy and more inclusive and sustainable constitutions. Generally missing from these accounts, however, has been an investigation into the capacity of participatory mechanisms to incorporate and respond to the views of women. While appeals to the people have been justified on the grounds of their increased overall legitimacy, less attention has been paid to who, precisely, participates when these mechanisms are set up and whether women are adequately represented and listened to. This chapter seeks to begin filling this gap. It provides initial answers to the basic question of whether and how participation in constitution-making delivers for women. The chapter outlines the contours of the debate surrounding popular participation in constitution-making, then looks at three instances of popular involvement in constitutional change: the 2014 Scottish independence referendum, the 2012-14 Irish Constitutional Convention, and the 2011-14 Tunisian constitution-making experience, analysing the level and nature of women’s participation in all these processes. Subsequently, the chapter evaluates the successes and failures of participatory mechanisms such as referendums, constitutional conventions, and public consultations in empowering women as equal participants and the ability of these tools to ensure gender-sensitive deliberations. The chapter also raises questions as to whether participation is to be resorted to in all cases of constitutional reform and the propensity for it to be an obstacle to rather than a vehicle for gender equality.
Virtually all philosophical discussions of the rule of law’s meaning assume that the proper horizon of the concept is the national legal system, or what I call “the rule of law writ small.” But governments are bound by a web of transnational legal obligations that should also be considered part of the rule of law’s scope. Analyzing whether the rule of law is honored against the backdrop of both national and transnational law gives us “the rule of law writ large.” This concept has particular force in the context of backsliding (and democracy-restoring) governments when autocrats first pull their governments away from transnational norms before newly elected democrats seek to restore compliance with those norms. While both sorts of governments may change domestic law, and pack political institutions with those who share their values and fire those who get in their way, only the democracy restorers can be said to be honoring the rule of law writ large.
Constituent power as a form of an unlimited power of the people fits into the populist discourse about the primacy of the people over procedures. The populist perception of constituent power emphasizes the immense presence of people on which its limitless character relies. Since constituent power stems from the people, it can take any form, as long as it is the outcome of popular will and can make decisions on any matter and not solely on the substance of the Constitution. The crucial issue then is whether or not there any criteria which could help us to draw some demarcation lines. Instead of the peculiarities of each case, there are some indicators which could make possible the differentiation between populist and non-populist attempts of constitution making, even if they sometimes look similar. The examination of each case though the lenses of these indicators might not provide us with a clear answer on whether a case is a definite case of populist constitution making. However, if we rely on the impact that such indicators have had on the constitution-making process in total, we can come to safe conclusions.
A constitutional deferral is an approach utilised by constitutional drafters so that the drafters do not regulate things in detail in the constitution. This approach is believed to provide more opportunity for the constitutional framers to achieve consensus in drafting a constitution. In the end, this helps a constitution last longer. Constitutional deferral also offers some flexibility for the legislative and the judiciary in interpreting the text of the constitution in the future, which may accommodate the original intentions of the constitutional drafters. This paper argues the opposite. In Indonesia, adopting constitutional deferral causes an uncertain future of freedom of association. This paper aims to address two central questions. First, why did the framers of the first constitution adopt constitutional deferral in drafting provisions on freedom of association? Second, what are the consequences of implementing constitutional deferral toward freedom of association in Indonesia? Through historical and doctrinal approaches, the paper concludes (1) that the sharp ideological differences among constitutional drafters when drafting provisions on freedom of association forced them to employ constitutional deferral. (2) The use of constitutional deferral opens more possibilities for inconsistent interpretation by the executive, the lawmakers, and the judiciary when they establish law or adjudicated cases related to freedom of association. Through constitutional deferral, these three branches of government limit freedom of association instead of protecting such freedom.
Comparative law is a common subject-matter of research and teaching in many universities around the world, and the twenty-first century has aptly been termed 'the era of comparative law'. This Cambridge Handbook of Comparative Law presents a truly global perspective of comparative law today. The contributors are drawn from all parts of the world to provide different perspectives on how we understand the 'law' and how it operates in practice. In substance, the Handbook contains 36 chapters covering a broad range of topics, divided under the following headings: 'Methods of Comparative Law' (Part I), 'Legal Families and Geographical Comparisons' (Part II), 'Central Themes in Comparative Law' (Part III); and 'Comparative Law beyond the State' (Part IV).
Scholars have long debated public involvement in constitution-making and will continue to do so. Yet, despite the multitude of opinions, we are no closer to resolving some of the most fundamental questions regarding the role of the public in constitution-making processes than decades ago when these discussions first started. The recent participatory Chilean constitution-making process, the growing wave of authoritarian constitution-making, and the plethora of new empirical evidence present another occasion to revisit this topic. In contrast to earlier literature, this article approaches this topic by addressing both the normative and the sociological dimensions of public participation in constitution-making. It first argues that public participation in constitution-making should only be considered a sociological necessity, not a normative one. Second, using a bottom-up approach, it provides a list of guiding principles to ensure that public participation in constitution-making, when conducted, allows for a net positive for both the constitution and the society it governs.
This article extends the study of the shortcomings of the constitution-making design that contributed to the failure of the Chilean process by addressing a largely overlooked aspect: the 2020 entry referendum. By placing two competing constitution-making models on the ballot, the political elites delegated to the voters a highly conflictual aspect of the process design that prevented cooperation among them. While some political parties approached the disagreements placed on the ballot as an opportunity to reopen discussions already settled by the 2019 Agreement, others interpreted the move as a cancellation of the political insurance contained in the Agreement. This exacerbated the existing polarization among political elites and imperiled prospects for the success of the process.
Constitution-making is a major event in the life of a country, with constitutions often acting as a catalyst for social and political transformation. But what determines the visions, aspirations and compromises that go into a written constitution? In this unique volume, constitution makers from countries around the world come together to offer their insights. Using a collection of case studies from countries with recently written constitutions, Constitution Makers on Constitution Making provides a common framework to explain how constitutions are created. Scholars and practitioners very close to the process illuminate critical insights into how participants see constitutional options, how deadlocks are broken, and how changes are achieved. This vital volume also draws lessons concerning the role of courts in policing the process, on international involvement, and on public participation.
From London to Libya, from Istanbul to Iceland, there is great interest among comparative constitutional scholars and practitioners about when a proposed constitution is likely to succeed. But what does it mean for a constitution to succeed? Are there universal criteria of success, and which apply across the board? Or, is the choice of criteria entirely idiosyncratic? This edited volume takes on the idea of constitutional success and shows the manifold ways in which it can be understood. It collects essays from philosophers, political scientists, empiricists and legal scholars, that approach the definition of constitutional success from many different angles. It also brings together case studies from Africa, Europe, Latin America, the Middle East and Asia. By exploring a varied array of constitutional histories, this book shows how complex ideas of constitutional success play out differently in different contexts and provides examples of how success can be differently defined under different circumstances.
Peace agreements aiming to end intra-state armed conflicts have often provided for radical constitutional change, with more than 100 peace agreements concluded since 1989 containing provisions on constitutional reform. When such constitutional change is envisaged to take place within the framework of an existing constitution, as opposed to the making of a new constitution, hard-achieved deals between peace-making parties are exposed to 'the unconstitutionality challenge'. Although there is ample literature on the making of a new constitution during transitions from conflict to peace, implementing a peace agreement within an existing constitutional framework and 'the unconstitutionality challenge' to peace reforms have not been fully examined to date. In this Article, we first identify the modalities in which 'the unconstitutionality challenge' is directed at constitutional change rooted in peace agreements. We do so through a comparative survey and by reference to peace processes in Colombia (with the FARC-EP) and the Philippines (regarding the Mindanao conflict). We then examine the promise and limitations of three legal strategies in addressing the unconstitutionality challenge: (i) recourse to international law in assessing unconstitutionality, (ii) transitionalism in judicial review, and (iii) attributing supraconstitutional or international legal status to peace agreements. We conclude that while each strategy has some merit, their effectiveness may be limited where they lack legal feasibility or political purchase. The resulting intractability of the unconstitutionality challenge, particularly in jurisdictions where there is a strong commitment to legalism, warrants a rethinking of the link between peace-making and constitutional reform and the importance of taking existing constitutional frameworks in transitional countries seriously.
When the coalition government known as the National Unity Government of 2015 initiated the promulgation of a new constitution for Sri Lanka, it had embraced transparent and inclusive procedures that were never rehearsed in the constitutional politics since independence. As part of the progress, within one and half years’ time, the members of the steering committee set up by constitutional assembly, presented the interim proposals on the new constitution. Impressive progress was made by the government, yet the task of moving towards a new constitution experienced a deadlock and had to be discontinued. This article examines constraints experienced by the National Unity Government during 2015 and 2019 that at some point sabotaged the project of constitution-making. By utilizing the insights of Jon Elster in this regard, this qualitative study finds that political parties serving at both constitutional assembly and parliament have influenced the progress of the constitution-making and contributed to its failure. This study reveals that group interest and permanent passion (the loyalty to their own ethnic population) have encouraged certain groups and factions within the constitutional assembly and the parliament to wield it as a tool of political capital. Therefore, Government of Sri Lanka should rethink the parliament serving as constitutional assembly and adopt compulsory equilibrium between publicity and secrecy.
The doctrine of popular sovereignty holds that the ‘supreme authority of the state’ belongs to the people, not to the political institutions exercising public power. What are the implications of this view when there is more than one people in the territory of that state? The case of Indigenous peoples highlights this question, as they are unequivocally peoples who are distinct from the majority population. This paper subjects to criticism of the received view according to which the inclusion of Indigenous peoples in democratic institutions is sufficient for the realization of their popular sovereignty. Instead, we argue that their constituent power must be recognized – the power to create and negotiate the constitutional order. The realization of popular sovereignty in settler states thus necessitates a process where the constitutional order is negotiated by Indigenous peoples and the majority population in conditions where the two parties are mutually recognized as sovereign.
This essay seeks to contribute to the literature that asks how interim constitutions can become self-enforcing norms capable of producing a successful constitution-making process. It uses the Chilean constitution-making process as an example to theorize on how the political narratives associated with the November 2019 Agreement, which sets the framework for constitutional change, can influence its self-enforcing capacity. The authors identify and reconstruct the two prevailing normative theories underlying the Chilean constitution-making process: the evolutive and the revolutionary narratives. These present themselves in both radical and moderate versions. While evolutive ideas emphasize institutional continuity, consensus-building, and an incrementalist approach to constitutional change, revolutionary arguments rely on the constituent power theory and push for a profound social transformation that can break with the past. Even though these narratives are in tension with each other in many respects, they have both influenced the design of the rules of the constitution-making process. The authors claim that the self-enforcing capacity of the interim constitution partly depends on whether, and to what extent, the moderate versions of these narratives succeed or prevail in the political discourse.
Resumo O presente artigo enfoca a atuação do STF em descompasso com o que determina a Constituição, as regras do processo constitucional e com o que se espera de uma Corte Suprema. Para tanto, analisa três casos: (i) a naturalização da concessão de medidas cautelares monocráticas em ADI; (ii) a (im)possibilidade de conciliação e transação da constitucionalidade em ADI; e (iii) o silêncio do Plenário. Diante desse cenário, é possível propor um caminho de correção normativa para a atuação dos ministros do Supremo Tribunal Federal? É possível apontar uma fundamentação democrático-institucional que qualifique o desempenho da Corte? É partindo desses problemas e questões que este artigo busca analisar atuações do STF em desacordo com as normas constitucionais e processuais e propõe que o respeito ao processo constitucional, não por mera observância formal, mas porque fundado em uma concepção deliberativa de democracia, pode reorientar a atuação dos ministros do Supremo Tribunal, qualificar o desempenho da Corte e, assim, mitigar os impasses que a têm caracterizado.
RESUMOA crise econômica mundial de 2008, que atingiu diretamente a Islândia, impulsionou o aprofundamento da experiência democrática naquele país através da elaboração de um novo projeto de Constituição. Esta experiência contém duas inovações fundamentais: o projeto de Constituição foi escrito mediante crowdsourcing, além da Assembleia Constituinte ter operado em paralelo com a legislatura regular. Tomando isso em consideração, este artigo objetiva analisar descritivamente, partindo da teoria da constituição e da teoria política e utilizando o método dialógico na observação do direito constitucional como uma ciência de textos e contextos, o contexto de elaboração deste projeto, destacando suas peculiaridades, e dimensionando os motivos do seu insucesso de aprovação. Como conclusão são propostas algumas reflexões críticas sobre as potencialidades e os limites da singular experiência islandesa que, contudo, se relacionam com grandes questões que se colocam para o constitucionalismo hodierno, especialmente no que tange à relação entre constitucionalismo e democracia.PALAVRAS-CHAVE: Projeto de Constituição Islandesa de 2011; Constitucionalismo contemporâneo; Crowdsourcing; Democracia; Crise econômica mundial.ABSTRACT The 2008 global economic crisis, which directly hit Iceland, improved the deepening of the democratic experience in that country through the elaboration of a new constitution project. This experience brings up two fundamental innovations: the Constitution project was written through crowdsourcing, and also the Constituent Assembly operated in parallel with the regular legislature. Taking this in consideration, this article aims to analyze descriptively, starting from constitutional and political theory and using the dialogical method in the observation of constitutional law as a science of texts and contexts, the context of elaboration of this project, highlighting its peculiarities, and dimensioning the reasons for its failure of approval. As a conclusion, some critical reflections are proposed on the potential and limits of this unique experience, which, however, are related to major issues that arise for today's constitutionalism, especially regarding to the relationship between constitutionalism and democracy.KEY WORDS: 2011 Iceland’s constitutional project; Contemporary constitutionalism; crowdsourcing; Democracy; World’s financial crisis.
All moments of profound constitutional change are extraordinary: the choice to replace or overhaul an existing text may be spurred by a variety of circumstances, including perceived failure of a previous iteration of the state, the end of an authoritarian regime, the cessation of internal or inter-state conflict, a ‘coming together’ of various political units into a larger federal entity, or conversely, secession of one unit from a larger state. All produce a highly charged political environment, which inevitably impacts the constitutional reform process. The chapters in this section, throwing open a window onto this subject in its theoretical, legal, political, and comparative complexity, emphasise that moments of wholesale constitutional renewal under extreme conditions render what is already a difficult and complex process a legal, political, social, practical and logistical challenge of the highest order.
Redrafting Constitutions in Democratic Regimes - edited by Gabriel L. Negretto September 2020
Redrafting Constitutions in Democratic Regimes - edited by Gabriel L. Negretto September 2020
Redrafting Constitutions in Democratic Regimes - edited by Gabriel L. Negretto September 2020
En los últimos años, una parte de la doctrina constitucional española ha centrado su atención en el procedimiento de reforma constitucional de la Constitución española de 1978 planteando diversas propuestas de reforma. La práctica totalidad de los investigadores que han dedicado esfuerzos a la cuestión lo han hecho partiendo de una concepción de Constitución de acuerdo con la cual el proceso por el cual se conforma es considerado secundario, cuando no irrelevante, o restando importancia a la posibilidad de participación ciudadana directa. El objeto de este artículo es plantear una serie de propuestas graduales de democratización del procedimiento de reforma constitucional desde un enfoque diferenciado del de la mayoría de la doctrina. Por un lado, se asume que una Constitución no se caracteriza únicamente por ser un conjunto de normas fundamentales que encabezan un ordenamiento jurídico, sino que es un texto que, para ser tal, requiere de un procedimiento democrático y participativo en el que pueda hacerse efectiva la máxima según la cual una Constitución es un acuerdo de la sociedad sobre cómo debe regirse y gobernarse el Estado. Por otro lado, la metodología de análisis que se emplea, prácticamente inexplorada por la doctrina española, parte de los análisis del campo de estudio comúnmente conocido como constitution-making. Derivado de ello, los resultados a los que se llega difieren sustancialmente de lo planteado hasta el momento.
During political transition, creating support across societal groups for a new political system is key to facilitate transition to a stable regime with functioning governance. Institutional design literature asserts that inclusion of key societal groups in institutional frameworks is central to create such support. However, empirical evidence to date does not clearly verify or refute this claim. A survey of the literature reveals an implicit distinction between de jure and de facto inclusion that has not been sufficiently differentiated or systematically examined. Based on a review of existing studies, this article makes the theoretical assertion that de jure inclusion alone, without de facto inclusion, is insufficient to build support for a political system. This theoretical claim is illustrated using two cases of recent constitution-making in North Africa (Egypt and Tunisia) and one in the Middle East (Iraq). The cases provide preliminary confirmation for the study’s theoretical assertion that de jure inclusion is insufficient to build political support. The findings suggest that a combination of de jure and de facto inclusion may be sufficient to create political support.
O presente artigo expõe argumentos contrários à tese de que o poder de criação de uma constituição deve ser entendido como o poder constituinte, em sua acepção de poder fundacional, ilimitado e soberano. Uma análise conceitual do poder para substituir ou revisar a constituição mostra que esse entendimento é incorreto. Em seu lugar, o artigo avança uma concepção sócio ontológica do poder para substituir ou revisar uma constituição escrita, como um poder deôntico limitado, cujos titulares são os representantes políticos dos cidadãos, a quem a coletividade reconhece o status de criadores constitucionais e cuja função é institucionalizar o constitucionalismo. Esta concepção propõe um enfoque mais claro para compreender o poder de criação da constituição e para avaliar a legitimidade de seu exercício
Constitution-making has become an intrinsic component of international politics, nevertheless, international relations scholars largely refrain from theorizing it tending to view formal constitutional drafting as a domestic project. The article proposes an understanding of constitution-making as an international (in addition to national) political phenomenon. We develop a new and comprehensive classification of international influences on constitution-making. We also demonstrate how the empirical study of constitution-making can illuminate overlooked areas of research and challenge existing international relations theories. Our focus here is on the study of international norms. We present three theoretical insights concerning the emergence of international norms, their dissemination, and the role of epistemic communities in facilitating their expansion. We conclude by highlighting how the interaction between international and domestic factors in the crafting of constitutions further challenges the disciplinary distinction between domestic and international politics.
Constitution-Making and Transnational Legal Order - edited by Gregory Shaffer April 2019
Constitution-Making and Transnational Legal Order - edited by Gregory Shaffer April 2019
Constitution-Making and Transnational Legal Order - edited by Gregory Shaffer April 2019
The aim of this essay is to present and then to critically discuss some arguments that have cast serious doubt on whether the conception of democratic constituent power is appropriate for, and should be invoked in, divided, conflict-ridden societies to avoid or fend off, among others, the prospect of a constitutional imposition. The author’s main argument is that the conception of democratic constituent power in such cases can be a matrix of normative (and potentially legalized) principles and standards, which do not preclude the intervention of external powers as such, but frame the demand for self-restraint as regards the forms, the aims, the intensity and the extent of such intervention. The invocation of the constituent power of ‘We the People’ in divided societies entails important risks, and one should take recourse to its rhetorical use only upon prudential, consequentialist considerations, which should include the possible exclusionary effects of the nationalist version of constituent power. Nevertheless, the prudential calculus can also indicate that such invocation may become useful as a reference point for a forward-looking learning (and potentially therapeutic) process, which will not aspire to simply obliterate the past and its original sins. Ultimately, everything depends on the context and on the virtues of the people and of their leaders.
From London to Libya, from Istanbul to Iceland, there is great interest among comparative constitutional scholars and practitioners about when a proposed constitution is likely to succeed. But what does it mean for a constitution to succeed? Are there universal criteria of success, and which apply across the board? Or, is the choice of criteria entirely idiosyncratic? This edited volume takes on the idea of constitutional success and shows the manifold ways in which it can be understood. It collects essays from philosophers, political scientists, empiricists and legal scholars, that approach the definition of constitutional success from many different angles. It also brings together case studies from Africa, Europe, Latin America, the Middle East and Asia. By exploring a varied array of constitutional histories, this book shows how complex ideas of constitutional success play out differently in different contexts and provides examples of how success can be differently defined under different circumstances.
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