2.5.1 Procedures and rules for debating and deciding

Rules will be needed especially for a constituent assembly; even the regular legislature may need some special rules for making a constitution, different from its regular rules of procedure. Smaller bodies, such as constitutional commissions, may not have such complex sets of rules, but will still need rules on matters such as how it makes decisions, finances, or how many members must be present to make up a quorum for a meeting.

This section focuses particularly on constituent assemblies, and to some extent on commissions, though the issues are relevant to all bodies that engage in constitution-making tasks.

Major issues

Quorum

A quorum is the number of people who must be present before discussion or a vote can take place. The idea is to prevent minorities from making decisions. Many legislatures have small quorums. Less than 50 percent would seem undesirable for a constituent assembly, which is supposed to be a true mirror of the nation. Uganda had the 50 percent quorum rule, but this proved difficult to achieve, especially as some members were ministers. In Nepal the interim constitution says that for most purposes there must be at least 25 percent of the constituent assembly members present. This is quite low; discussion could begin when only women were present, or only men, or only members of one or two castes or ethnic groups.

At least for a vote, a higher quorum should be required. If there is to be a vote that requires a special majority (two-thirds of the membership is common), then at least that number must be present. But it does mean that debate can have taken place with far fewer members present.

The quorum rule can be a source of delaying tactics. The body should clearly be well attended, but members should not be able to exploit the rule to adjourn debate in order to delay decisions. The chair ought to be able to adjourn the meeting, however, if the numbers present clearly make debate pointless.

The rules for committees could be different. They could also make it possible for the chair or convenor of a committee to decline to allow discussion to begin if, for good reason, no representatives of a particular group were present. But no group should be allowed to hold the committee for ransom by failing to turn up.

The quorum rule alone cannot be relied upon to ensure attendance. Other factors include where the body meets (are there too many distractions?), whether for other reasons the process isallowed to drag on for too long, and the effectiveness of the chair. There is also the vexed question of attendance allowances. They are not unusual, but must be properly policed or members will simply sign and go away. Publicity attached to attendance may help in some societies.

Speaking rules

Rules must recognize the freedom of speech—of all people. In some parliaments a person must “catch the speaker’s eye”—which may work against the less experienced members, and perhaps especially against women. In some assemblies the procedure has been for members to tell the chair in advance that they wish to speak on an article, and the chair will call on them in the order in which they appear on his or her list (e.g., as in Timor-Leste [2002]). Such an arrangement has the disadvantage that successive speakers do not respond to each other but simply deliver their prepared statements on the topic. Another possibility—drawn from the Kenyan National Constitutional Conference—is to provide each member with a large card on which the member’s enrolment number is printed. This is raised to indicate a wish to speak.

It is absolutely essential that there be a way to limit the length of speeches. The length of permitted speeches will probably be influenced by the size of the deliberating body, and by the stage of the process. In Uganda there was a thirty-minute limit during the initial debate—but the body comprised only 214 members. In Kenya there was a ten-minute limit, but there were 629 members. In Bolivia, during the “Vision of the Country” debate at an early stage in the process, each political group had a maximum of three hours. Committees were given two hours to report to the plenary. In debates on major motions, regional groupings had one hour each. At the decision-making stage when votes were to be taken, each member had no more than ten minutes per section to vote. And to make a motion, only two minutes were allowed.

There is a risk that extended time periods might be given only to political parties, rather than to other interest groups. It would be possible to allow other groups—which might include women, people with disabilities, or minority groups that may cross party lines, according to the particular country’s circumstances—to be given extended time.

The rules of the Indian constituent assembly provided that Hindustani (Urdu or Hindi) or English could be used, but, if the president of the constituent assembly took the view that a member could not express himself or herself in one of those languages, that member could address the constituent assembly in his or her native tongue and a summary could be provided for members in English or Hindustani. In Timor-Leste the official languages of the constituent assembly were Portuguese and the local lingua franca, Tetum, but members could express themselves in English or Indonesian (despite hostility from some to the use of Indonesian, viewed as the language of the oppressors). In Bolivia the rules of the constituent assembly provided that plenary and committee sessions would rely on interpreters and translators so that members could express themselves in their native tongues (article 52). Provisions about sign language could also be explicit.

Notice rules

Rules requiring suitable notice of any issue to be discussed help in ensuring that members do know when they should be present in order to make contributions on issues about which they feel strongly. The Bolivian rules usually required twenty-four-hour notice for documents.

Politeness and decorum rules

Also important are rules that ensure that members are addressed and listened to with respect— that other people do not use insulting language, or speak on their mobile phones in the hall, or read the newspaper or gossip with their neighbors. Rules may become rather complex and intimidating on these points, and care should be taken not to be overly formal. There may be other solutions to some problems; the parliament in Nepal has mobile phone–jamming devices.

Decision-making and voting

The majority by which decisions are to be made can be one of the most difficult aspects of the process (and has in some processes been the reason that rule making takes a long time). Different sorts of decisions may require different majorities. Majorities may be defined in various ways, including:

  • A majority of those present and voting (sometimes called a “simple majority”); if fifty people are present, and eighteen vote for a motion and twelve vote against it, the motion is carried, even though this was not a majority of all those present.
  • A majority of those present (which means that those who are present but abstain from voting are counted as having voted against); where the issue to be voted upon is whether to amend a draft constitution, this rule makes it difficult for the amendment to be accepted, which may be a desirable provision.
  • A majority of all the members, whether present or not, and which means a number greater than 50 percent of all members (sometimes called an “absolute majority”); sometimes care is taken to say that “all the members” does not include any vacant seats.
  • At least two-thirds of all the members, whether present or not (often used for constitution- making decisions).
  • At least 75 percent of all the members, whether present or not (sometimes used to amend constitutional clauses regarded as being of particularly great significance).

Note that these rules assume the normal pattern in formal decision-making bodies: that all decisions are “binary”—a member votes either “for” or “against.” Even if there are several solutions to a question, the decision-making will be structured so that each one is voted on separately.

Box 29. What is a simple majority? A debate in the Timor-Leste constituent assembly [2002]

The question was: did this mean just the largest number of those voting—or a majority of those present? The latter would mean that a person who was present but abstained was in effect voting against the motion. Members of the assembly were divided. A foreign expert favored the latter interpretation (Kathlene 1994: 565).

It is desirable for all these rules to be spelled out clearly. A note on the “simple majority” question: on the one hand, the interpretation that it requires more than half of those present does mean that a motion requires substantial support. But the rule drafters could, and should if this is what they meant, have been specific and said “a majority of those present.” The normal meaning of “simple majority” in English is “a majority of those present and voting.” “Absolute majority” would most likely have meant “a majority of those present”—as a member of the Timor-Leste constituent assembly pointed out. To allow silence to be a vote against does make it easy to abstain. When the issue is whether to amend a draft, it favors the draft.

Clear rules should specify a majority of what: “a majority of those present and voting,” “a majority of those present,” or even “a majority of all members,” making the use of the term “a simple majority” unnecessary—and indeed, it is best avoided. Rules often require that those abstaining must also indicate that they are doing so, and that the numbers abstaining be recorded. Such a rule may act as a disincentive to members abstaining, something that is often a form of abdication of responsibility.

Administrative decisions may often appropriately be made by a simple majority (“a majority of those present and voting”)—but care must be taken if these decisions might disadvantage particular groups. In many constitution-making processes the required majority is set at two- thirds of the entire body. The purpose of such a rule is to give groups within the assembly the incentive to persuade others to support them. It prevents a small minority standing in the way of a new constitution—which may be a consequence of a rule requiring a higher majority.

To require total agreement in every human endeavor is unrealistic. But a number of processes have set “consensus” as the objective—as in the South African process [1996], and also in Kenya [2005] and in Nepal [ongoing process]. “Consensus” presumably means something other than unanimity. Many people claim that seeking consensus was the traditional way of doing things in their culture. As the chair of the Uganda Constitutional Commission and (subsequently) chief justice of Uganda, Benjamin Odoki, notes, an Africa consensus involves “settling disputes by listening to everyone and taking into account all views. It is a painstaking exercise, which is most rewarding in the end because it produces no losers since all are winners, and promotes legitimacy and acceptable decisions” (Odoki 2005). In modern politics, however, consensus is often hard to achieve—even in Africa. In South Africa, the concept of “sufficient consensus” was developed; this meant that if the major parties, representing all the ethnic groups, agreed, the process could move on (but this did exclude some groups). In Nepal, consensus was defined as no vote against a provision in the constitution (regardless of how many abstained). Then there was to be a process to try to achieve agreement (through party leaders), and finally, if this proved impossible, a two-thirds majority of all the members would suffice. Consensus may be easier to achieve in small bodies, such as a commission.

Box 30. Challenges to participation of women in decision-making bodies

Cultural practices and social expectations often make it hard for women to participate fully in public bodies. One writer (Aili Mari Tripp) says, “Even in parliamentary bodies, women have difficulty being taken seriously, being listened to, and are frequently subjected to humiliating stereotypes and derogatory remarks” (Tripp 2011: 153). In Timor-Leste [2002] a female constituent assembly member raised the issue of domestic violence and was laughed at by many male members. There is also evidence of sexual harassment of women parliamentarians in some countries, including in South Africa (Geisler 2000: 618) and Uganda (Tripp 2001: 153, citing Tamale 1999), and even in Sweden (The Local 2007).

Research shows that male interruption of women speaking is more likely than any other type of harassment. In legislative committees in the United States, “women entered the discussion later, spoke less, took fewer turns, and made fewer interruptions than men” (Kathlene 1994: 565). In developing-country legislatures, parties are often weak, with patronage rather than rules being the governing principle—which makes it hard to fight for fair party procedures for women. These difficulties, which may affect other groups that have been marginalized from public life, should be borne in mind by those who draft rules.

A mechanism to handle deadlocks is almost bound to be required at some point, whether there is formal provision for it in the rules or not. (See part 2.5.2.) At different stages of a process, voting may work in different ways. If a document is being adopted for the first time, it is probable that a particular vote in favor will be required. At some stage, however, a draft already prepared by a particular process may then be presented to another body. There are basically two ways for that draft to be considered: either it is to be presumed to be the final constitution unless it is changed, or it is to be viewed as a proposal only. In Uganda the draft prepared by the constitution commission could be changed in the constituent assembly, but only if a motion to change it was moved and it passed by a two-third majority. But in Kenya [2005], the adoption of any clause of the new constitution required a two-thirds majority of the constituent assembly. In Kenya [2010], proposals to a draft constitution could be made by the parliament only by a two-thirds majority of all the members. Although there were at least that number present in the parliament, every time a vote was called members melted away—so that not a single one of 150 proposed amendments was passed, and only one was voted on.

Some constituent assemblies have made provision for secret ballots. This was possible in the Constitutional Loya Jirga in Afghanistan [2004]. In that instance there was a genuine risk of intimidation by warlords. In Nepal some members expressed concern that they might be subject to pressure, and some civil society activists were worried that members from various ethnic or caste groups and women would not have freedom to represent those groups, but would be essentially “vote banks” for their parties and their concerns. Secret voting would give members a way out of this dilemma.

Generally there are strong arguments against secret ballots, which are essentially antidemocratic: the electorate should know how the people for whom they voted carry out their responsibilities. There is also a risk in some countries of bribery; this certainly took place in the Kenyan National Constitutional Conference [2005]. A secret ballot may encourage bribery—because no one would know how individuals voted and would therefore not know whether they have been influenced by factors such as bribery. Some members might be tempted not to think hard about how they should vote, because they would not be answerable for it. Finally, most decision- making will probably take place in committees where secret voting is less feasible—either because voting will be a more open affair, or because smaller numbers will make it harder to conceal how members vote. It is unrealistic to expect political parties to agree to secret voting if they are determined to exercise control.

There are various ways of indicating a vote: a voice vote (where all those in favor simultaneously say “Yes” and then those against say “No,” and the chair judges by the volume who prevails), a show of hands, passing through division lobbies (“Yes” voters through one room and “No” voters through the other, or the equivalent of walking to the front of the hall to place a vote in an urn or box), electronic voting by pressing a button at each member’s seat, and a roll-call vote, in which the name of each person is called out and the voter must indicate his or her response out loud.

The voice vote is partially anonymous: the person sitting next to a member may know how his or her neighbour voted, but the person presiding and the public may not. This procedure was used when the Kenyan parliament adopted the proposed constitution—to go to referendum— in 2010. Though the “Aye” vote sounded overwhelming, it is not possible for anyone to say exactly who said “Aye”—and this may explain why so many members of parliament felt able to argue against the document in the referendum campaign. The roll call was used in Timor- Leste [2002]—not as a routine, but for a few issues of symbolic significance, for example in connection with the flag. Such a voting system is impractical for large constituent assemblies. This technique was used in the French constituent assembly; according to Jon Elster, “a procedure that enabled members or spectators to identify those who opposed radical measures, and to circulate lists with their names in Paris” (Elster 1993: 180).

In Timor-Leste each member had three cards and voted by holding them up: green, red, and blue (for, against, and abstain). At one point it was suggested that rather than having each group hold up its cards separately, all should hold them up together and they could be counted by three people simultaneously. This would not work with six hundred people (as in the constituent assemblies of Kenya [2005] or Nepal [ongoing process]).

One issue in constituent assemblies is: How far ought party members to be subject to a requirement to vote according to “party line”—or how extensive ought the party line to be? There are topics on which a party may genuinely have a firm position. But “whips” (a term used in some countries to refer to the party officials who exercise voting discipline) are not readily compatible with consensus—unless they are used to encourage party support for a consensus reached among leaders. Even then, if members have to be “whipped” into support, it hardly seems to indicate a national consensus.

Absence of discipline is likely to produce a more well-informed debate. In some countries it is common for matters of conscience to be a subject for a free vote (but this may produce unreasoned populist voting on certain issues). In Nepal, despite much advance discussion, the rules were silent on this—presumably leaving it to party discretion whether to apply party discipline in any particular context.

Caucuses

Should there be a formal possibility of cross-party alliances or caucuses? Women’s caucuses are common in legislatures around the world. Sometimes they are composed of women members from a single party, and sometimes they are cross-party. In the constitution-making process in Uganda, as Aili Mari Tripp noted, the assembly’s female delegates formed a nonpartisan women’s caucus. It offered workshops on parliamentary procedures, speech-making, and how to build a coalition; it also made sure that the women’s views and concerns were represented in a weekly radio program on the assembly’s debates (Tripp 2001: 150).

In Nepal an attempt to recognize a women’s caucus in the rules was unsuccessful, defeated by the parties’ reluctance to lose control.

Openness

The whole process of a constituent assembly should be characterized by transparency. The public should know what is about to be debated, and by whom. Papers on which discussions are to be based should be publicly available in time to permit interested parties to make submissions and get in contact with observers.

But should the sessions themselves be held in public? The South African process was open: all meetings of the constituent assembly and its bodies were accessible to the public. There are risks in openness. In the French constituent assembly the mob terrorized the delegates. Even in more orderly circumstances the presence of a certain group might overawe the members. And

there is the risk that members will be tempted to play to the gallery rather than concentrate on the business at hand. The South African parliament, when debating the constitution, had some experience of this when committees were televised. The Philadelphia convention making the United States constitution decided to sit in secret partly because of a fear that its members would be reluctant to change their minds if those minds had been revealed in public. The Spanish constituent assembly [1978] had a secrecy rule for the committees. Jon Elster, who has studied several processes, suggests that sitting in public inhibits genuine discussion by privileging stubbornness and grandstanding. On the other hand, he suggests that secrecy encourages more interest-based bargaining than deliberation. His conclusion is that committees should sit in private and the plenary in public (Elster 1995: 386).

Relations with the public and the media

The administration of the constitution-making body should be responsible for ensuring that there is a constant flow of accurate information to the public. (See part 2.3.11 on the media.) In Timor-Leste a short daily bulletin was put out in several languages. Other methods include a newsletter and a website (which would be used by a limited range of groups but would be a resource for the media and for NGOs). The rules may not go into any detail on these issues, but it would be wise to make it clear where responsibility primarily lies—though this should not preclude civil society from monitoring and publicizing the work of the body.

One way to set up a structured relationship between a constitution-making body and the public is to have accredited observers to the body. Such observers would represent organizations or interests that did not otherwise have an adequate voice in the constitution-making body. These could be professions, religious groups, ethnic or linguistic groups, or possibly certain major NGOs. They should not be too many in number—which means that they must represent substantial (in the sense of important) interest groups or issues. Narrowly focused groups’ concerns could be met by their having access to relevant thematic committees. Observers could have the right to attend all plenary and committee meetings of the assembly, but not to speak or vote. They could interact with members in an informal way, having the right to eat where the members ate. They could thus have the opportunity to persuade, but not in any way to coerce.

Rules for a commission or similar body

The rules for a constitutional commission or a similar body are likely to be simpler than those for a constituent assembly. However, drawing on some degree of common sense, and also on the rules of previous commissions, the following are, we suggest, the main points that ought to be addressed:

  • Quorum: it would be normal for a smaller body to have a higher quorum in percentage terms than a constituent assembly. This is to avoid the risk that important issues will be decided on by small numbers, and also because each member of a commission may represent different interests; more than in a large body, the absence of a single person is likely to mean that some voices cannot be heard.
  • Notification of meetings: especially when a body meets part-time, it is important that all members are given due notice of meetings.
  • Record keeping: it may more easily be overlooked in a small body that it is important to keep proper records of discussions, and ensure that they are retained in a secure place.
  • Speaking rules: it can be just as difficult to be heard in a small group as in a large one.

A small group of people may develop a good relationship, and even become friends. But this may make it harder and not easier to impose discipline on members. Rules are therefore important—even if the atmosphere means they do not have to be relied on frequently. And if the atmosphere sours—as it has in some commissions—rules that make all the members feel they have a fair chance to participate may become important.