This section returns to a key legal dimension of the constitution. The constitution is not only law, it is supreme law. This means that no law or policy that is inconsistent with the constitution is valid—and the social contract is safeguarded, both in its symbolic and in its substantive elements. The constitution binds all the people and their institutions, not only state organs. Experience has shown that the purposes and dictates of the constitution are not easily achieved. It is difficult to establish the rule of law under which state power is exercised for the purposes for which it is granted or in accordance with procedures prescribed by the constitution. Because this is not easy, especially in societies where other sources of power (such as customs or religion) are often inconsistent with those of the constitution, constitution-makers have to pay special attention to rules and procedures for implementation and enforcement.
An understanding of the role of a constitution is critical to designing the process for making it. And the process is not only for making the constitution but for generating or creating the environment, promoting the knowledge, and facilitating the public participation that are conducive to a good constitution and to the prospects for implementing it. We therefore begin with a short discussion of the importance and role of the constitution.
There has been much concern with constitutions and constitution-making in the last three to four decades. The world order has changed a great deal in this time; the final mopping-up of colonialism, with the emergence of new states, the end of military regimes, the collapse of communism, and efforts to end civil conflicts, particularly in multiethnic states, have all contributed to the production of constitutions. The variety of contexts in which constitutions have been made shows that the primary purposes a constitution serves vary considerably: nation- building as a new state emerges; the consolidation of democracy as the military retires to the barracks or authoritarian presidents are deposed; liberalism and the creation of private markets with the end of communism; peace and cooperation among communities to end internal conflicts. These purposes determine the orientation of the constitution, and often also the process by which it is made.
Constitutions are dependent on national contexts in another significant way. The conception and understanding of, and therefore the respect for, constitutions vary, depending in considerable part on national history and the reliance on and respect for law as a key mode of organizing society and state. So the terms “constitution” and “constitutionalism” do not always have the same meaning or impact in all countries.
A new constitution can take root easily if the country has a commitment to and the infrastructure necessary for the rule of law. But other social and political orders of authority may compete with it where charismatic politics or the tradition of the “strongman” prevails, where high authority is ascribed to religious or customary leaders, or where society is closely regulated by social norms, institutions, and hierarchies. In a society that is largely homogenous, with common values and aspirations, and with members who have been part of the same state for a long period, constitutional reform is relatively easy, but not particularly critical (for example, consider the reform of the governmental system in Finland in 2000). Such a country may indeed be able to dispense with, at least, a formal constitution (as is, or at least until recently was, the case in Great Britain and New Zealand). A state that has several communities with different languages, religions, or modes of social organization is less able to rely on common values and social institutions for the regulation of society. Instead it may have to depend in part on the values, aspirations, rules, institutions, and procedures incorporated in the constitution—and this is not easy, as old loyalties and habits persist but also take on new political significance.
Sometimes the provisions of the constitution to protect the rights of the people, promote constitutional values of equality and social justice, and ensure the integrity and the accountability of the government fail. One reason is that the state in many developing, and indeed some developed, countries is the principal means by which ministers, bureaucrats, and others with special access to the state accumulate illegal wealth, give state jobs and contracts to relatives and friends, and protect themselves from due process of the law (by impunity, bribery, or intimidating the judiciary). Even when new institutions to promote the accountability of state organs or fight corruption or protect citizens’ rights are established (as they are in many new constitutions), they are corrupted and often rendered ineffective by ministers, bureaucrats, and tycoons.
A particular difficulty in implementation arises with regard to constitutions that are made in conflict or postconflict situations. They are made under considerable pressure or even coercion, often from powerful Western states, and assume demilitarization, the establishment of consensual institutions and orderly state processes, and an end to violence. But rarely do the antagonisms and the armed forces that led to conflict end, nor does the cease-fire last long. A particular focus of this handbook is constitution-making in conflict situations.
A constitution has several dimensions. A distinguished authority on constitutions, the late Professor Kenneth Wheare, drew a distinction between those who regard a constitution as primarily and almost exclusively a legal document in which, therefore, there is place only for rules of law and for practically nothing else, and those who think of a constitution as a sort of manifesto, a confession of faith, a statement of ideals, a “charter of the land” (Wheare 1966). Since he wrote this in 1966, the debate over the proper function of constitutions has intensified.
Fundamentally, a constitution is the basis for the organization of the state. The state is the mechanism through which a society provides for the exercise of political, administrative, and judicial powers in order to ensure law and order, the protection of the rights of the people, and the promotion and regulation of the economy. As the notion of the sovereignty of people has superseded other beliefs about the source of ultimate authority, the constitution has come to be regarded as a contract among the people on how they would like to be governed. In most cases this is a fiction, as the people may have had no substantive role in making, or even influencing the decisions about, the new constitution. However, due to the notion of people’s sovereignty and the fundamental right of the people to participate in public affairs, there is a tendency, indeed a compulsion, to promote people’s participation in constitution-making (which is part of the inspiration for this handbook).
But the idea of a constitution as a social contract derives from another recent development—a contract not among the people to which each individual is a party, but among diverse communities in the state, often relatively new, where the bonds among the different communities are few and weak. Communities decide on the basis for their coexistence, which is then reflected in the constitution, based not only on the relations of the state to citizens but also on its relations to communities, and the relationships of the communities among themselves. In such situations, the constitution sometimes provides for “partnerships” among the communities in government and other forms of communal power sharing.
In this way—and also because of changing understandings and expectations of the functions of the state, which now include public welfare and policies for a just society, the promotion rather than just the protection of rights, honest administration, and a sustainable environment—the scope of the contemporary constitution goes well beyond its older counterpart. That constitution dealt principally with the structures and powers of the state (and often assumed rather than provided the method for electing the legislature or the government). The constitution did not specify policies of the state but left them to be developed by the political process within the framework of the constitution. With the rise of the middle classes in the nineteenth century, some civil rights of citizens (including property) were incorporated in the framework for policy and lawmaking, but for a long time there were no serious restrictions on state power.
With the increase in the functions, powers, and duties of the state, the constitution began to intrude on society, to try to change it, to assist disadvantaged citizens or communities, to take responsibility for education, health, the economy, and other matters that impinge deeply on society. India was one of the first countries to see the constitution as a means of transformation of social, political, and economic relations. This development has been criticized by some, for two reasons. They consider that the proper function of a constitution is to define state institutions and limit their functions. And they say that the impossibility of achieving most constitutional values and aspirations discredits and delegitimizes the constitution. This is a statement—often driven by the ideology of the commentator—that is hard to assess.
In many countries with great poverty, a constitution without the commitment to eradicate poverty and ensure social justice would enjoy little legitimacy from the mass of the people. There are also other dangers in a constitution intended to transform society. It raises high expectations, which if disappointed also lead to the loss of legitimacy. A constitution that seeks to transform social and economic relations will almost certainly be resisted by the privileged and the well-off, who normally have enough power and skills to undermine the constitution.
Some other issues also constitute serious dilemmas for constitution-makers. How much salience should the constitution give to ethnic differences? What is the proper balance among national, tribal, religious, and linguistic identities? Is it morally right to design all decisions for majority voting? What is the appropriate balance between principles and the details of policies? Are there some principles that must be stated in the constitution? Are there some matters of policy that are so clearly matters for governmental decision-making that they should never be entrenched in the constitution (and if so which are these)? The same questions can be raised about institutions, especially given the current vogue for independent institutions. Do too many independent institutions incapacitate the state and undermine legitimate political processes? In all these ways, does the constitution become too rigid, unable to respond to unanticipated problems? Are there problems with a constitution that is long, as many new ones are? And what are the criteria for success of the constitution that constitution-makers should apply? Is longevity one of them? If so, why? Shouldn’t each generation (the “people” for the moment) decide on its own system of governance?
In his assessment of many of these issues, the distinguished political scientist Giovanni Sartori concludes: “most recent constitutions are poor instruments of government” (Sartori 1997: 197). This conclusion may not resonate with some other commentators, who consider that the constitution in the contemporary world must serve several important functions and that it must balance competing interests. Constitution-makers have to decide on the orientation and scope of the constitution. For the purposes of this handbook, we need to understand the impact of different methods of constitution-making on the orientation and scope of the constitution, and in particular the consequences of popular participation. We discuss this matter throughout.