A Practical Guide To Constitution Building:: An Introduction
A Practical Guide To Constitution Building:: An Introduction
Constitution Building:
An Introduction
Winluck Wahiu
This paper appears as chapter 1 of International IDEA’s publication A Practical Guide to Constitution
Building. The full Guide is available in PDF and as an e-book at <http://www.idea.int> and includes a
chapter on principles and cross-cutting themes in constitution building (chapter 2), building a culture
of human rights (chapter 3), constitution building and the design of the executive branch, the legislature
and the judiciary (chapters 4, 5 and 6), and decentralized forms of government in relation to constitution
building (chapter 7).
International IDEA resources on Constitution Building
© International Institute for Democracy and Electoral Assistance (International IDEA), 2011
Applications for permission to reproduce all or any part of this publication should be made to:
ISBN: 978-91-86565-28-2
This publication is produced as part of the Constitution Building Programme implemented by International IDEA with
funding from the Royal Norwegian Ministry of Foreign Affairs.
Foreword
The oldest constitutions in the world were framed in the 17th century and have been described
as revolutionary pacts because they ushered in entirely new political systems. Between then and
now, the world has seen different kinds of constitutions. Quite a number following the end of
the cold war in 1989 have been described as reformatory because they aimed to improve the
performance of democratic institutions.
One of the core functions of any constitution is to frame the institutions of government and
to determine who exercises the power and authority of the state, how they do so and for what
purpose. But constitutions neither fall from the sky nor grow naturally on the vine. Instead,
they are human creations and products shaped by convention, historical context, choice, and
political struggle.
In the democratic system, the citizen claims the right of original bearer of power. For him or
her, the constitution embodies a social contract that limits the use of power by government to
benefit the citizen in exchange for his or her allegiance and support. The term ‘constitutionalism’
sums up this idea of limited power.
At the same time, the core importance of constitutions today stretches beyond these basic
functions. Constitutions come onto the public agenda when it is time to change to a better
political system. People search for constitutions that will facilitate the resolution of modern
problems of the state and of governance. Today, these problems are multifaceted and increasingly
global—from corruption to severe financial crises, from environmental degradation to mass
migration. It is understandable that people demand involvement in deciding on the terms of
the constitution and insist upon processes of legitimizing constitutions that are inclusive and
democratic. The term ‘new constitutionalism’ has entered the vocabulary of politics as further
testament to this new importance of constitutions. Its challenge is to permit the voices of
the greatest cross section of a society to be heard in constitution building, including women,
young people, vulnerable groups and the hitherto marginalized.
Conflict still impugns constitutions. Older constitutions were the legacy of conflict with
colonialism; newer constitutions have aimed to end violent internecine rivalry between
groups with competing notions about the state and to whom it belongs. Certainly, these new
constitutions are loaded with the expectation that they will herald a new era of peace and
democracy, leaving behind authoritarianism, despotism or political upheaval.
Constitutions are now being framed in an age when the dispersal of norms and of the
principles of good governance is fairly widespread in all the continents of the world. This
would have taken longer without the role of international organizations, in particular the
United Nations and others such as International IDEA. It is noteworthy that declining levels
of violent conflict between states have also catalysed international dialogue on shared values,
such as human rights, the rule of law, freedom, constitutionalism, justice, transparency and
accountability—all of them important ingredients of any constitutional system. Shared values
III
permit organizations such as the African Union and the Organization of American States to
be stakeholders of constitutional governance in their member states which may legitimately
intervene when constitutions are not respected, for instance in the holding and transfer of
power after free elections.
I encourage constitution builders to take advantage of the lessons and options that other
countries and international agencies can offer. There is little need to reinvent the wheel to deal
with issues such as incorporating human rights in constitutions, guaranteeing the independence
of the judiciary, subsuming security forces under civilian democratic control, and guaranteeing
each citizen the exercise of a free, fair and credible vote. The mistake is to believe that this
superficial commonality justifies a blueprint approach to framing constitutions.
The idea of shared norms and values should not discount the fact that constitution builders
have been learning by doing. Each instance of constitution building will present tough issues
to be resolved, for instance, what to do with incumbents who refuse to leave power and use all
means in order to rule. The concentration of power observed recently by Mikhail Gorbachev
in his assessment of the world today, after the legacy of the 1990s, is indeed a real threat to
constitutional democracy everywhere.
The world is changing at a rapid pace. The constitution builder today has an advantage
lacked by his or her predecessor. National constitutions have become a world-wide resource
for understanding shared global values and at the click of a button information technology
permits an array of constitutional design options to be immediately accessed.
What this new Guide from International IDEA offers actors who are engaged in the
constitution-building process is a call for more systematic ways for reviewing constitutions
and an emphasis that there are neither inherently stable or superior constitutional systems nor
one-size-fits-all formulas or models. The Guide highlights the fact that each country must find
its own way in writing its own constitution. Furthermore, designing a constitution is not a
purely academic exercise in which actors seek the best technical solution for their country. The
drafters and negotiators of constitutions are political actors aiming to translate their political
agendas into the text of the constitution. Thus, the constitutional documents that result are
rarely the best technical option available, but the best constitutional compromise achievable.
The Guide aims to enhance debates in the search for a model that reflects the needs of a
particular country as the result of a political compromise. Addressing constitution builders
globally, it is best used at an early stage during a constitution-building process. It supplies
information that enriches initial discussions on constitutional design options and will prove
extremely useful as an introduction to the understanding of the complex area of constitution
building.
The world may soon witness a regional wave of democratic constitution building as a result of
the current dynamics in the Arab world. Thus, this Guide is published at a timely moment.
Cassam Uteem,
former President of Mauritius
IV
Preface
In recent decades countries from all continents have reframed their constitutional arrangements—in
the last five years alone Bolivia, Ecuador, Egypt, Iceland, Kenya, Myanmar, Nepal, Sri Lanka, Sudan,
Thailand and Tunisia have all been involved in one stage or another in a constitution-building
process. In the aftermath of the people-led uprisings in the Arab world in 2011, constitution
building is set to play a fundamental role in creating sustainable democracy in the region.
Constitution building often takes place within broader political transitions. These may relate to
peace building and state building, as well as to the need for reconciliation, inclusion, and equitable
resource allocation in a post-crisis period. Many constitutions are no longer only about outlining the
mechanics of government, but also about responding to these broader challenges in a way which is
seen as legitimate and widely accepted. As the demands placed on constitutions have increased, they
have often become complex and lengthy, and hence more challenging to design, as well as implement.
As a result, those involved in shaping constitutions require access to broad, multidisciplinary and
practical knowledge about constitution-building processes and options.
The sharing of comparative knowledge about constitution building is one of International IDEA’s
key areas of work, and this publication draws together this comparative knowledge and expertise
for the first time in a Practical Guide to Constitution Building, which has been carefully compiled by
expert authors.
This publication aims to respond to the knowledge gaps faced by politicians, policymakers and
practitioners involved in contemporary constitution building. Its principal aim is to provide a first-
class tool drawing on lessons from recent practice and trends in constitution building. It is divided
into chapters which can be read as individual segments, while the use of a consistent analytical
framework across each chapter provides a deeper understanding of the range of issues and forces at
play in processes of constitutional development.
The Practical Guide to Constitution Building reflects how fundamental constitution building is to the
creation of sustainable democracy. Constitution building is a long-term and historical process and is
not confined to the period when a constitution is actually written. While focusing on constitutions
as key documents in themselves, this publication stresses understanding constitutional systems as a
whole, including the relevant principles (chapter 2) and the need to build a culture of human rights
(chapter 3), as well as the provisions for institutional design (chapters 4 to 6) and decentralized
forms of government (chapter 7). It does not offer a blueprint or model for constitutions, but draws
lessons from recent practice and knowledge. Among those lessons is that constitutions may well say
one thing on paper but work differently in practice.
I would like to express my sincere gratitude to the authors, to the practitioners who contributed
insights derived from their experience, and to the government of Norway for its support. A Practical
Guide to Constitution Building would not have become a reality without them.
Vidar Helgesen
Secretary-General, International IDEA
V
Acknowledgements
This Guide would not have been possible without the support and contributions of
numerous individuals and organizations.
We gratefully acknowledge the contributions of the authors and other contributors:
Markus Böckenförde, Hassen Ebrahim, Nora Hedling, Sakuntala Kadirgamar-
Rajasingham, Paulos Tesfagiorgis, and Winluck Wahiu. We also extend our appreciation
to Bipin Adhikari, Steffan Gomez-Campos, Solanda Goyes, Shireen Hassim, Torquato
Jardim and Wilfrido Villacorta for their important inputs.
We thank our peer reviewers, Tek Prasad Dhungana, Carlos Alberto Goitia, Noria
Mashumba, Christina Murray, Jenny Tuhaika and Jayampathy Wickramaratne, for their
comprehensive work and expert guidance. Special thanks to Katia Papagianni for her
deep involvement in numerous drafts. We also wish to express our gratitude to the many
individuals who offered fresh ideas and insights into the developing text, including Raul
Avila Ortiz, Andrew Bradley, Andrew Ellis, Cheryl Saunders, Leena Rikkilä Tamang,
and others, including IDEA staff who are too numerous to mention individually.
We acknowledge our partner Interpeace with gratitude for its role in the conception and
development of this project and we extend our appreciation to Interpeace collaborators
Michele Brandt, Jill Cottrell, Yash Ghai and Anthony Regan.
Additional thanks for the research support they provided go to Emily Benz, Müge
Fazlioglu, Eve Grina, Snow Li, Jan Ortgies, Abrak Saati, Ann-Katrin Siekemeier, Katja
Stockburger, Ana Maria Vargas and Felipe Winsberg.
We are grateful for the editorial expertise of J. Matthew Strader and Eve Johansson, as
well as the efforts of the very capable publications team of International IDEA, especially
Nadia Handal Zander. The dedication of the Constitution Building Processes team has
been invaluable; we thank Melanie Allen, Jenny Fandialan Isberg, Rosinah Ismail-Clarke
and Tayuh Ngenge for their many inputs to and untiring support of this project.
Finally, we thank the government of Norway for its support, without which this
publication would not have been possible.
VI
Acronyms and abbreviations
VII
Contents
1. Introduction...................................................................................................................... 1
1.1. The aim of this chapter.....................................................................................................................1
1.2. General observations........................................................................................................................2
1.3. Key assumptions................................................................................................................................3
1.4. Overview of constitution-building practice...................................................................................3
6. Conclusion...................................................................................................................... 53
VIII
Notes..........................................................................................................................................................................55
Key words.................................................................................................................................................................55
Additional resources...............................................................................................................................................56
Glossary.....................................................................................................................................................................57
About the author......................................................................................................................................................60
Bibliography..............................................................................................................................................................61
International IDEA at a glance .............................................................................................................................64
IX
1. Introduction
This paper appears as chapter 1 of International IDEA’s Guide A Practical Guide to Constitution Building. The full
Guide is available in PDF and as an e-book at <http://www.idea.int> and includes a chapter on principles and cross-
cutting themes in constitution building (chapter 2), building a culture of human rights (chapter 3), constitution
building and the design of the executive branch, the legislature and the judiciary (chapters 4, 5 and 6), and
decentralized forms of government in relation to constitution building (chapter 7).
2 INTERNATIONAL IDEA
4. The legitimacy of a constitution can be buttressed through the process by which
1. Introduction
it is built. It can also grow over time as a constitution is implemented, gains
widespread respect and becomes embedded as a living instrument in the life of
the state. Both the process by which a constitution is built and its substantive
content are the two keys to legitimacy. Yet each faces unique challenges in contexts
of conflict-affected constitution
building. By overcoming these Both the process by which
challenges and remaining responsive a constitution is built and its
substantive content are the keys to
to the context, constitution builders
legitimacy.
are able to build more legitimate
constitutions.
4 INTERNATIONAL IDEA
2. General challenges faced by
constitution builders
Two kinds of challenges that confront constitution builders in general are considered here:
a) building a constitution in contexts of extensive violent conflict, resulting in very
weak political and institutional capacity to support constitution building; and
b) building a constitution in order to defuse conflict in the particular setting
through democracy or democratization.
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• Giving priority to achieving peace at all costs also poses risks to the constitution-
8 INTERNATIONAL IDEA
processes include protections for human rights such as access to official information,
It is worth noting that the delivery side of democracy is equally important in constitution
building. If constitution builders aim to tie democratization to economic advance, this
raises the following question: does the constitution building aid the poor? The answer
may depend on whether constitution building is sustaining the status quo or attempting
new political, social and economic relations, for instance, by breaking up a feudal type
of rule or setting targets for the political
Treating elections as a priority
inclusion of economically marginalized
following the adoption of a new groups. If constitution building uses
constitution carries the risk that democracy to channel the root causes of
democratization is equated with grievance, this implicitly requires a long-
electoral competition. Democratization term view, rather than merely responding
in constitution-building practice is a to the current demands of a particular
more complicated process, requiring group. Serious inequities surviving from an
a plurality of groups in order to build
consensus.
old constitutional order may be a sign of
constitutional failure.
10 INTERNATIONAL IDEA
3. Challenges in designing
processes of constitution
building
The period when constitution building is started is often loaded with promises
of ‘new beginnings’. It is also a relatively rare period, when people have a historic
opportunity to affirm the fundamentals and basic principles of government, going
beyond ‘normal politics’. It is also observed that a constitution-building process has
often been distinguished as a part of broader processes of conflict transformation or
democratization, as seen above. Its starting point as a process may be contained in these
larger processes.
To ensure the best outcome, the decisions taken during the initial stages of constitution
building regarding both the process of constitutional change and the substantive issues
to be framed are particularly critical. Some of the critical process questions are often the
following:
• the scope of change;
• the use of interim and transitional devices;
• transitional justice issues;
The decisions taken during the initial
• democratic representation during stages of constitution building,
the process; regarding both the process of
• popular participation; and constitutional change and the
substantive issues, are particularly
• the role of external actors.
critical.
3.1. The scope of change
Constitution builders may envisage a grand design which entails comprehensive
constitutional change achieved by drafting a new constitution to replace a previous
one. Acts of grand design establish a new constitutional order. In some contrasting
cases, constitutional change by graduated design is sought by continually reforming
the existing constitution. Incremental and progressive reforms may accumulate and
ultimately reflect a new, or at least substantially different, constitutional order.
12 INTERNATIONAL IDEA
fully presidential system and limiting the extent of devolution, and submitted this draft
a. Executive-directed 23%
b. Peace negotiations/round tables 5.6%
c. National conference/transitional legislature 7.2%
d. Legislature or constitutional assembly 62.6%
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Interim arrangements might succeed in facilitating the framing of a constitution
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may also face operational constraints. In Nepal, since the Constituent Assembly is
18 INTERNATIONAL IDEA
Constitution builders cannot avoid the role of leaders; the question may be how to use
20 INTERNATIONAL IDEA
4. Substantive options issues
Many interest groups are often uncertain exactly on which side they come down on an issue. This
type of uncertainty propels concern about achieving the broadest consensus on constitutional
content. The greater the degree of consensus needed, the more time practitioners are likely
to need to spend to reach decisions and the higher the costs of decision making. In addition,
many groups with different interests and backgrounds will calculate how to maximize their
own benefits from the institutional choices made during constitution building.
A constitution may not settle every material issue. Constitution builders have debated
what issues to include in the constitution and at what level of detail. In a nationally driven
process, they are of course free to design constitutions according to local judgement. As
issues become controversial and intractable, the risk of spoilers grows. These are the
actors who can cause the non implementation of a constitutional provisions that they
object to or are growing resistant to. In choosing their substantive options, constitution
builders have often needed time to manage potential spoilers through bargains or
persuasion so that the constitution enters into force with the trust of a wider range of
actors, in order to permit consolidation in
public institutions and government. At the
same time, constitution builders may need A constitution may not settle every
to manage expectations, particularly those of material issue.
the marginalized.
Some issues have been more controversial and more debated than others. In general,
some of the areas where constitution builders have often sought guidance or taken much
time to settle substantive options have been related to the schemes of power—who has
it, how much of it and for what purpose—as well as the question of rights, particularly
in view of contradictory but widespread beliefs or customs, the plurality of political
actors and stakeholders, including their diversity, and the subjection of political action
to an effective legal framework in order to prevent abuse of office and check impunity.
Challenges in resolving conflicts concerning these issues are highlighted below.
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options for the legal and administrative enforcement of rights. This approach has seeped
24 INTERNATIONAL IDEA
Supporters of a political approach have argued that:
26 INTERNATIONAL IDEA
Dispersal of power is a term used to describe the effect of assigning exclusive authority
28 INTERNATIONAL IDEA
In an alternative approach, the majority of the national leadership has been accommodated
30 INTERNATIONAL IDEA
of polarization along embedded identity lines is both a solution to problems and a source
32 INTERNATIONAL IDEA
and frameworks, such as tribunal hearings determining the status of accrued rights. By
36 INTERNATIONAL IDEA
specific provisions. The chapter explores how contextual forces and trends within a
Issues Questions
38 INTERNATIONAL IDEA
different segments of society during constitution building. Minority group rights
Issues Questions
• Why should human rights be included in a constitution?
• Which rights will be included in a constitution?
• How does the experience of conflict and the contextual
1. Defining situation determine which rights will be included or excluded
your human in the constitution?
rights culture • How does thinking in terms of a human rights culture rather
than focusing only on human rights options in constitutions
assist constitution builders to approach rights more
holistically or comprehensively?
2. Constitution- • How does the process used to frame a constitution relate to
building what it ultimately contains concerning human rights?
processes and • How do the nature or rationale of a constitution and the kind
human rights of political system it establishes provide a textual framework
culture to shape the scope of human rights?
• How should constitution builders treat a past culture of
gross violation of human rights in order to build a new
constitutional culture of human rights?
• How does the system of allocating power in the light of
3. Human societal conflict shape the constitutional human rights
rights culture culture?
in a conflict • Does it matter for the implementation of human rights if a
context constitution elevates political dialogue or (alternatively) treats
judicial or legal approaches as more preferred processes for the
resolution of serious social disputes?
• How do conflicts between domestic laws and international
human rights law affect a human rights culture?
40 INTERNATIONAL IDEA
leader or ruler of a country, personifying the country’s image nationally and globally.
42 INTERNATIONAL IDEA
• Shall the executive have exclusive control over declaring a
44 INTERNATIONAL IDEA
• According to which electoral system shall the legislature
46 INTERNATIONAL IDEA
5.3.6. Chapter 6: The Design of the Judiciary
Issues Questions
• What is the role of the judicial branch?
1. Role of the • How does the judiciary contribute to ensuring the rule of law?
judiciary • What checks and balances exist between the judiciary and
other branches?
• What is the role of the judicial branch in enforcing the
guarantees of the constitution?
• What laws and decisions can be reviewed in a process of
2. Constitutional constitutional review?
review • Which courts can exercise judicial review?
• What are the circumstances under which review can take
place?
• When does constitutional review take place?
• What is the role of the judiciary in law-making?
• What is the role of the judiciary in amending the
3. Judicial constitution?
powers • What checks may the judiciary exercise over other branches?
• How is the judiciary involved in the administration of
elections and political parties?
• Why is judicial independence important?
4. Judicial
• What mechanisms exist to ensure accountability of the
independence
judiciary?
and
accountability • How are judges selected? Who selects them? Under which
criteria?
48 INTERNATIONAL IDEA
5. Using this Guide
• Or shall the regional level have the power to decide on
additional lower levels of government or administration,
define their boundaries, transfer competencies and/or transfer
resources?
• Or shall there be a middle way—some basic mandatory or
optional organizational rules in the constitution as well as
certain flexibilities for the regions?
50 INTERNATIONAL IDEA
• Or shall the constitution establish standards and guidelines
52 INTERNATIONAL IDEA
6. Conclusion
Practitioner quote
‘Constitution-drafting is an exercise for historians, sociologists, anthropologists,
philosophers, writers and poets—for all the men and women who have suffered
injustice throughout generations and have mastered the courage to bare their
souls and put them into binding words; to leave it to professional politicians is
to invite in a moral hydra; to leave it to jurists alone is to invite in the soulless
abstraction of normativism. History can hardly teach a more painful lesson.’
Torquato Jardim, former Minister and constitutional advisor to the Constitutional
Commission, Brazil
54
Notes
1
These are some of dates that illustrate the process of constitutional building since the
independence of Costa Rica:
– Independence from Spain 1821;
– Member of the Federal Republic of Central America from 1823 to 1840;
– Constitution of 1825, Ley fundamental del estado libre de Costa Rica;
– Constitution of 1844, Constitución Política del Estado Libre y Soberano de Costa
Rica;
– Constitution of 1847, Constitución Política de Costa Rica;
– Constitution of 1848, also called the ‘reformed constitution’; and
– later constitutions: 1859, 1869, 1871, 1917, 1949.
Universidad de Costa Rica, Constituciones políticas de Costa Rica 1821–2010 (2010),
<http://esociales.fcs.ucr.ac.cr/index.php?option=com_content&view=article&id=46
&Itemid=193>; Obregón Quesada, Clotilde, Colección: Las constituciones de Costa
Rica (5 vols) (2009).
2
The first Constitution of Bolivia was approved on 19 November 1826 by the
Constituent Assembly (Congreso General Constituyente de la República Boliviana).
Later constitutions are those of 1831, 1834, 1839,1843, 1851, 1861, 1868,
1871, 1875, etc. See <http://www.constituyentesoberana.org/info/?q=historia-
constituciones-bolivia> and <http://www.cervantesvirtual.com/portal/constituciones/
constituciones.shtml>.
3
East European countries have also been increasingly active in constitution building
and many states have adopted new constitutions in the last two decades, such as
Belarus, Bulgaria, the Czech Republic, Estonia, Kazakhstan, Kyrgyzstan, Lithuania,
Romania, Russia, and Slovenia. Ludwikowski, Rett R., Constitution-Making in the
Region of Former Soviet Dominance (Durham, NC: Duke University Press, 1996).
4
United Nations, ‘United Nations Assistance to Constitution-making Processes’,
Guidance Note of the Secretary-General (April 2009; no document number),
available at <http://www.unrol.org/doc.aspx?n=Guidance_Note_United_Nations_
Assistance_to_Constitution-making_Processes_FINAL.pdf>.
Key words
Interim arrangements, Role of international actors, External actors, Fragile states, State
fragility, Transitional justice, Government of national unity, Enactment, Referendum,
Promulgation, Participation, Constituent assembly.
55
Additional resources
Many institutions are engaged in researching and publicly providing knowledge options for
discussion. Some of these actors specialize in a particular policy area or work only in particular
regions. Other resources that can support practitioners’ work include the following.
• UNDP Crisis Prevention and Recovery Programme
<http://www.undp.org/cpr/>
The United Nations Development Programme (UNDP)’s Crisis Prevention
and Recovery Programme works to aid countries struggling with conflict and
violence by providing risk reduction, prevention, and recovery support. The
website has programmes and resources concerning early crisis recovery, gender
equality, the rule of law, and state building. It also has a ‘Practical Guide’ to
needs assessment in a post-conflict situation.
• USIP Center for Post-conflict Peace and Stability Operations
<http://www.usip.org/programs/centers/center-post-conflict-peace-and-
stability-operations>
The United States Institute of Peace (USIP), an independent organization
funded by the US Congress, created the Center for Post-Conflict Peace and
Stability Operations to conduct research, identify best practices, support
training and education efforts, and develop tools for post-conflict and peace
stability operations. The USIP also has programmes and publications on peace
building, the rule of law, and constitution building to promote stability in
conflict-affected areas of the world.
• ConstitutionNet
<http://www.constitutionnet.org>
ConstitutionNet, a global online resource, was established as a joint initiative of
International IDEA and Interpeace and is maintained by International IDEA
with funding from the government of Norway. It aims to service the knowledge
needs of an expanding group of those involved in constitution building. The site
provides an online edition of this Guide, as well as access to and information
about other knowledge tools, including a training curriculum, discussion papers
and a virtual library of materials compiled from selected processes globally.
• International Institute for Democracy and Electoral Assistance
<http://www.idea.int>
The International Institute for Democracy and Electoral Assistance (International
IDEA) is an intergovernmental organization that supports sustainable democracy
worldwide. Its mission is to support sustainable democratic change by providing
comparative knowledge, assisting in democratic reform, and influencing policies
and politics. IDEA’s website provides information on regional constitution-
building processes, interviews with national practitioners, and the State of
Democracy tool which practitioners may use to gauge citizens’ perceptions of
democracy deficits, including from a constitutional angle.
56
• ConstitutionMaking.org
<http://www.constitutionmaking.org/>
ConstitutionMaking.org is a joint project of the Comparative Constitutions
Project (CCP) and the USIP. Its goal is to provide designers with systematic
information on design options and constitutional text. The organization’s
website compiles resources, drafts reports on constitution-making trends, and
provides a forum for discussion of a range of constitutional issues, as well as
a database of constitutions. It also has a blog on constitutional developments
around the world.
• Venice Commission
<http://www.venice.coe.int/site/main/Presentation_E.asp>
The European Commission for Democracy through the Law is an independent
legal think tank that deals with crisis management, conflict prevention and
constitution building. It is dedicated to promoting European legal ideals,
including democracy, human rights and the rule of law, by advising nations
on constitutional matters. The website offers country-specific opinions and
comparative studies on European constitution-building processes.
• University of Richmond
<http://confinder.richmond.edu/>
The University of Richmond, located in Richmond, Virginia, is the home of
the Constitution Finder tool. This search-powered database of constitutions,
charters, amendments and other relevant documents provides links to official
postings of national documents.
Glossary
Aggregation The effect of concentrating or centralizing power, usually creating
hierarchies
57
Constitutional A formal meeting of representatives or delegates that is convened for
Convention purposes of framing or amending a constitution and which, unlike
a constituent assembly, is not self-governing or sovereign or legally
autonomous, but works with a specified mandate or instruction
from another body or group.
Democracy A system of government by and for the people. Literally means ‘rule
by the people’. At a minimum democracy requires: (a) universal
adult suffrage; (b) recurring free, competitive and fair elections; (c)
more than one serious political party; and (d) alternative sources of
information. It is a system or form of government in which citizens
are able to hold public officials to account.
Human rights Entitlements or claims that individuals have and enjoy on the basis
of their humanity or human dignity and individual freedom
58
Institutional Interests held by specific sections of the government which they
interests seek to advance during the constitution-building process. Often,
this manifests itself in a government body or other actor attempting
to maximize or protect its own power.
59
Rights-based An approach to constitution building which embraces the rationale
approach of the state as the protection of rights and the welfare of citizens
and prioritizes giving effect to these rights in the design of the
government and constitution
Rule of law A state of affairs whereby, or a doctrine that holds that, no individual
or government is above the law and everyone regardless of their
social status is equal before law. It is a condition in which every
member of society including its ruler accepts the authority of the
law.
Transitional justice Legal and other remedies or measures to redress grievances and
wrongs, such as violations of human rights or acts of corruption,
that were committed in the past and which are typically only used
during periods of major political change as a means to mark a break
with the past
60
Bibliography
On the political nature of constitutions
Griffith, J. A. G., ‘The Political Constitution’, Modern Law Review, 42/1 (1979),
pp. 1–21 (on the distinction between political and legal constitutions)
Tribe, Laurence, The Invisible Constitution (Oxford and New York: Oxford University
Press, 2008), pp. 18–19 and 25–51 (analysing the importance of the ‘unwritten’
Constitution of the United States)
61
Culic, I., ‘State Building and Constitution Writing in Central and Eastern Europe after
1989’, Regio Yearbook, 3 (2003), pp. 38–58
Elster, Jon, ‘Forces and Mechanisms in the Constitution-Making Process’, Duke Law
Journal, 45 (1995–6) (discussing how particular process choices aggregate
particular institutional interests) (available from HeinOnline, downloaded 27
May 2009)
Furley, O. and Katalikawe, J., ‘Constitutional Reform in Uganda: The New Approach’,
African Affairs, 96/383 (April 1997), pp. 243–60 (discussing the impact of the
consultative process under the National Resistance Movement)
Ghai, Y., The Role of Constituent Assemblies in Constitution-Making (Stockholm:
International IDEA, 2006), available at <http://www.constitutionnet.org>
Ghai, Y. and Guido, G., Constitution Building Processes and Democratization (Stockholm:
International IDEA, 2006), available at <http://www.idea.int/publications/
cbp.../upload/cbp_democratization_eng.pdf>
Hart, V., Democratic Constitution Making, Special Report no. 107 (Washington, DC:
United States Institute of Peace, 2003), pp. 4–11, available at <http://www.usip.
org> (on the importance of process)
Hassen, E., The Soul of a Nation: Constitution-making in South Africa (Oxford and Cape
Town: Oxford University Press, 1999), esp. chapter 14
Klug, H., Constituting Democracy: Law, Globalism and South Africa’s Political
Reconstruction (Cambridge: Cambridge University Press, 2000), pp. 93–117 (on
the South African transition)
Lawoti, N. (ed.), Contentious Politics and Democratization in Nepal (Sage Publications
India and Bhrikuti Academic Publications, Nepal, 2007), pp. 48–72 (discussing
the process leading to the 1990 Constitution)
Phongpaichit, P. and Baker, C., Thailand’s Crisis (Singapore: Institute of Southeast Asian
Studies, 2001), pp 116–27 (on the process of drafting the 1997 Constitution)
On the importance of designing for democracy to balance competing interests and ideas
Cowen, D.V., ‘Constitution Making for a Democracy’, African Affairs, 59/238 (1961),
pp. 77–108, downloaded from JSTOR 16 October 2007 (discussing the
challenges of democratizing South Africa in the 1960s African independence era)
Dahl, Robert, Democracy and its Critics (New Haven, Conn. and London: Yale
University Press, 1989), pp. 135–92 (a dialectical dialogue on the problems of
the democratic process)
Elster, Jon, Offe, Clauss and Preuss, Ulrich, Institutional Design in Post-Communist
Societies: Rebuilding the Ship at Sea (Cambridge: Cambridge University Press,
1998), pp. 63–108 (on constitution building in Eastern Europe)
McWhinney, E., Constitution-making: Principles, Process, Practice (Toronto: University
62
of Toronto Press, 1981), pp. 67–125 (on designs for constitutional institutions
and processes)
Murphy, W., Constitutional Democracy (Baltimore, Md: Johns Hopkins University Press,
2007), part 1 (on creating a constitutional democracy)
Netherlands Institute for Multiparty Democracy, NIMD Knowledge Centre, ‘Writing
Biographies of Nations: A Comparative Analysis of Constitutional Reform
Processes’, 2009, available at <http://www.nimd.org> (case studies of processes
in five countries)
Ramaphosa, C. and Motala, Z., Constitutional Law: Analysis and Cases (Cape Town:
Oxford University Press Southern Africa, 2002), pp. 1–12 (on the making of
South Africa’s Constitution of 1996)
Sartori, G., Comparative Constitutional Engineering, 2nd edn (New York: New York
University Press, 1996), pp. 195–201 (an overview of constitutional engineering)
Smith, S. A. de and Brazier, R., Constitutional and Administrative Law, 8th edn (London:
Penguin Books, 1998), pp. 6–13 (on what goes into constitutions) and pp. 27–
46 (on constitutional conventions)
Sunstein, C. R., Designing Democracy: What Constitutions Do (Oxford and New York:
Oxford University Press, 2001), pp. 13–47 (discussing institutional design in
polarized, heterogeneous communities)
Tilly, Charles, Contention and Democracy in Europe 1650–2000 (Cambridge: Cambridge
University Press, 2003), pp. 42–69 (on regimes and contention between the
participants in processes of democratization)
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Cambridge University Press, 1995), pp. 183–212 (for an overview of arguments
in favour of and against constitutional recognition of cultural diversity)
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International IDEA at a glance
What is International IDEA?
The International Institute for Democracy and Electoral Assistance (International
IDEA) is an intergovernmental organization that supports sustainable democracy
worldwide. International IDEA’s mission is to support sustainable democratic
change by providing comparative knowledge, and assisting in democratic reform,
and influencing policies and politics.
What does International IDEA do?
In the field of elections, constitution building, political parties, women’s political
empowerment, democracy self-assessments, and democracy and development,
IDEA undertakes its work through three activity areas:
• providing comparative knowledge derived from practical experience on
democracy-building processes from diverse contexts around the world;
• assisting political actors in reforming democratic institutions and
processes, and engaging in political processes when invited to do so; and
• influencing democracy-building policies through the provision of our
comparative knowledge resources and assistance to political actors.
64