The objective of a constitution-making process must be a constitution that is acceptable, workable, and just. “Workability” of a constitution includes whether the design will match the circumstances of the country, as well as questions of the capacity of the country to operate it, its likely cost, whether it will generate a great deal of litigation, and so on. Less important perhaps are other concerns: readability, length, and durability.
“Coherence” (the various aspects all fitting well together) is a bit different because it covers a number of points, some of which may affect workability, while others may affect acceptability, or even be a matter of style.
A constitution may be “incoherent” in various ways, including the following:
- The “working parts” (about machinery and procedures) may not reflect the philosophy set out in parts such as the preamble and discussions of national values and human rights.
- Different parts of the machinery of government may not be suited to work together, particularly where the objective is to set up checks and balances between different parts.
- It may not even be possible for certain parts of the machinery to work together—this may be a question of dates not matching, or some other fundamental incompatibility.
- Drafting styles may differ markedly between different parts.
- There may be great detail in some parts of the constitution and guidelines at the level of principle in others.
- Words may be used differently in different provisions, or different words may be used for the same concept or institution. This is not just a matter of style; it may affect how the constitution is understood and applied.
- There may be repetition—which may cause confusion, difficulty in reading, and also problems of comprehension.
- The document may be so badly organized that it is hard to find specific points, and the reader runs the risk of failing to realize that what she is reading is restricted or expanded by a provision somewhere else in the document.
Box 31. Parliament as the source of incoherence in the Fiji constitution
In Fiji in 1997, a parliamentary committee took over the final stages of the constitution- making process, after receipt of a full and coherent set of proposals by a commission, and introduced a power-sharing arrangement (which had already been rejected by the commission) under which any party with a significant number of parliamentary seats could take part in the cabinet. The committee members failed to think through the implications for other aspects of the constitution. (And time pressures made it hard for anyone, including professional advisers, to realize the problems that had been created.) A notable example involves the provisions on the senate. To ensure that body included a “nongovernment” element, the original proposal was that the leader of the opposition would nominate some senate members. This was retained by the parliamentary committee. But at the same time the constitution said that those senators must be from parties entitled to sit in the cabinet. So they were to be nominated by the leader of the opposition, but not to be members of the opposition, and not to offer a nongovernment voice.
Incoherence can arise from various causes, including:
- civil society focusing on “values” while politicians focus on power, and experts on “workability”;Part 2: Tasks in a constitution-making process
- making changes at late stages in the process;
- a tendency, on the part of those preparing the constitution, to focus on only one part of the document at a time, or even on only one article at a time;
- dividing the preparation of proposals among committees in a way that leads to overlap;
- asking nonexperts to produce actual drafting language for the constitution, rather than the ideas;
- uneven knowledge on the part of those involved: it is almost inevitable that a body composed of those with some, but not great, knowledge of constitutions (and few countries can command the services of many experts with great knowledge) may seize on some idea without being able to understand all its implications, and even without understanding how it has worked elsewhere;
- cutting and pasting from a variety of foreign models;
- having different drafters with different styles working on different aspects;
- excessive speed; and
- a reluctance to use experts, and a certain arrogance on the part of those (usually politicians but sometimes lawyers) who think they have the skills and the mandate required.
Careful planning of the process—which is essentially the theme of this entire handbook—should avoid many of these risks. The planning needs to be done not only by those officially in charge of the process, but also by those wishing to influence it, including political parties and civil society generally.
Specifically, the following strategies can help avoid the various pitfalls outlined here:
- having in advance, or adopting at an early stage, a set of guiding principles (see part 2.1.8); however, these are likely to be broad, while issues of coherence are more likely to involve detail;
- civil society focusing not only on the values and rights, but working hard to see how the difficult technical aspects can achieve their aims;
- accepting the necessity for skilled and technical expertise at the decision-making stages, even for carrying into effect the necessary political compromises;
- having a skilled “harmonization committee” (usually found within a constituent assembly) whose responsibility is to put together the various elements of the draft and ensure coherence in the whole;
- minimizing the number of technical drafters, and ensuring that they are both competent and familiar with the style to be adopted; having one person in charge of the drafting with the authority to instruct drafters to use certain phrases and styles; and developing a manual of style for the particular process;
- preparing an explanatory glossary of terms to be used, including translation into major languages, and ensuring that it is used;
- having a workable timetable;
- having a philosophy of work that avoids procrastination, assuming that the timetable is to be taken seriously. Otherwise, important stages toward the end are squeezed; this is an important role, especially for the chairs of the bodies in charge; and
- avoiding superficial knowledge by organizing in-depth study groups on particular issues, including inviting experts, local and foreign, and ensuring that study tours do involve a rounded experience of the topics studied.