3.4 Specialist or technical input institutions

An undertaking as complex as making a constitution inevitably involves a large number of specialist bodies and individuals. Here we look at aspects of arrangements as experts (who may come as single “spies” or in battalions), bodies that run elections and referendums, government departments, and courts. In the previous section, under commission and committees, we noted briefly that special committees may be constituted or used in constitution-making processes.


3.4.1 Experts

History

Experts play critical roles in constitution-making. But the roles have changed over a long period, as have the types of experts. The roles depend to a considerable degree on the relationship of experts to the constitution-makers. Until recently, lawyers, often academic lawyers, played a central role. They would draft constitutions on behalf of monarchs. With the rise of parliamentary institutions, the role of experts became that of advisers to political parties, who made the final decisions. During the decolonization period, academics in the metropolitan states would be recruited to advise on, and often draft, the constitution. Sometimes the whole process would be dominated by the expert, within the overarching aims of the colonial power or the newly emerging elite. With the shift to mass participation, the locus has moved, not disregarding experts but reducing their role increasingly to technical matters. Mass politics and mass participation have dented the mystique of experts and their monopoly on knowledge.

Changing roles of experts

The roles and types of experts have also changed with the changing nature of the constitution. The contexts of constitution-making have altered significantly in the last fifty years or so (after the wave of decolonization). Many constitutions have been made in the wake of, or to settle, internal conflicts. In such circumstances, the skills of the traditional adviser, whom we may call the “generalist,” covering all aspects of the constitution, were not sufficient. The specialist entered the field. The need for specialists increases when the constitution-making process is embedded in complex processes of peacebuilding and the sharing of power (as in Bosnia- Herzegovina, Northern Ireland, and Sudan); they must address such issues as what to do with weapons disposal, merger of armed militias, return of refugees, and transitional justice. There are now competing theories of how peace and harmony are to be achieved, and of the negotiating process (each with its special jargon). Some constitutions, in the post–Cold War period, aimed at democratization, have been dominated by theories of transition to democracy.

Another change is in the scope of constitutions. The lawyer-generalist sufficed when the focus was on systems of government, informed by the theory of the separation of powers, particularly the independence of the judiciary, and occasionally the protection of minorities, restricted to civil and political rights. The lawyer-generalist was often not well versed in the policies or intricacies of electoral systems or the politics of ethnicity, the complexity of land issues, or concerns with social justice. For the most part these were omitted from the constitution and left to the political process. Today people look to a constitution to solve a myriad of political and social problems, including representation (of women, the disabled, minorities), exclusion (when the state is dominated by one or two communities), social justice (perhaps through affirmative action), power sharing (including decentralization), identity (particularly in multicultural states), social reforms (for example, addressing oppression within society), environmental sustainability, accountability of security forces, and tighter financial and budgetary processes. Increasingly these require specialist knowledge, and so the range of experts who become involved in advising on the constitution has increased exponentially. And the coordination of these experts becomes critical.

A further development is the enlarged role of the international community (defined to include participation of other states, regional or international organizations, and international NGOs) in national constitution-making processes. This may come about because of the collapse of a state or other serious circumstances that require international help and assistance (such as in Cambodia [1993], Bosnia-Herzegovina [1995], Timor-Leste [2002], Afghanistan [2004], and Kosovo [2008]). The role of the foreign expert has been facilitated by the desire of some countries to play an international role, the emergence of international norms whose incorporation in a constitution is deemed to require specialist help (indigenous peoples’ rights, gender issues, environmental sustainability, transitional justice), and the rise of international NGOs, funded mostly by Western governments, which can be sustained only if they generate business. International institutions such as the United Nations Development Programme also seek to play a role. Consequently a class of professional experts (as opposed to other types, who are at best part-timers) has arisen, assuming the dimensions of an industry, with an interest in conflict.

The internationalization of constitution-making processes also means that experts come from many different legal traditions. Few are comparative lawyers; certainly few common lawyers know much about civil law systems, and the converse is also true. This may make it difficult for them to work well together, because approaches, concepts, and preferred institutions may vary among them. A commentator on the Dayton process for Bosnia-Herzegovina noted the clash of legal traditions and styles, and said that cultural differences among lawyers (some from the United States, some from Europe, some from the Balkans) slowed the drafting but also allowed ideas to be examined carefully and provided for cross-fertilization among traditions while keeping Yugoslav notions foremost (O’Brien 2010: 337).

Presumably the varied background of experts matters less in more technical areas such as security, environment, and electoral systems. The role of experts has also been greatly affected by the rise of the participatory process. No longer is it the case that experts are invitees of the government. International agencies bring their own experts, without clearance from the government. Many experts come on the invitation of local NGOs, but they are usually funded by grants from outside. Both special groups and individuals consider that they have the necessary expertise to negotiate and decide on constitutional issues; many want to draft the text. These groups and individuals do not generally operate under the auspices of political parties, and thus it is difficult to bring them under “control.” The tendency to usurp the role of experts

is accentuated if the legislature or the constituent assembly sets up thematic committees for decision-making. And there is serious danger of poor drafting and an overall lack of coherence in the document.

Functions of experts

Experts perform different functions. Some transmit foreign examples, in the hope that there is something to be learned from what has occurred elsewhere. (An advantage of this is that the experts do not need to show any knowledge of the local scene—but they should be careful not to suggest that institutions from other countries can necessarily be copied, and their listeners should scrutinize those experiences carefully.) Some perform a more exalted role; they may be experts in conflict resolution. Some play their most effective role as negotiators (often in postconflict situations). In South Africa, apart from experts brought in by local groups, the constituent assembly appointed a panel of local experts to advise it on interpretations of the draft constitutions and to help resolve differences, particularly on legal issues. Frequently experts’ views are sought on a draft constitution before final revisions and adoption (as in Eritrea, Kenya, Nepal, and South Africa).

Experts, particularly perhaps generalist lawyers with a range of legal knowledge, can play a useful role if they have a good understanding of the local context (including culture) and can establish a good rapport with their clients (for more discussion of such issues see the discussion of foreign advisers more generally, in part 2.3.6). Sometimes parties who are negotiating an issue are not really well acquainted with the issue and are afraid to take a position, which they fear will disadvantage them. If the other party suffers from the same syndrome, negotiations can be complicated, drawn out, and bitter—full of suspicion. But if each party has an expert whose advice it respects, a lot of issues can be addressed, leaving the critical questions to be resolved at the level of principals. South Africans used experts from political parties to great advantage in this way.

Some experts come for a specific task: for example, “Tell us what electoral system will ensure that more women or more marginalized groups or more persons with disabilities can be elected to the legislature.” Or “What shall we do about land?” Some advise on how to plan and administer civic education, or analyze public views given to the constituent assembly. Some may be asked to advise on the actual design of the constitution-making process. Many experts may appear only as speakers at workshops. A useful role for experts may be at the start and at the close of the process, the former for an idea of what may be entailed in a good process and some useful comparative perspective, and the latter for comments on the draft constitution before it moves to final approval and ratification. Sometimes experts can be of great help when the issue is either controversial or complicated (such as devolution or federalism); here a panel of two or three experts may show the way forward as well as warning of risks and dangers.

Some experts are closely associated with decision-makers, as advisers to political parties or to the constitutional commission or the constituent assembly. Others operate at the periphery, nested in a local or international NGO. Many come unsolicited, often without a clear role, and offer their services on arrival. Some experts are part of teams and some operate on their own. A foreign expert backed by her government may enjoy privileged access to decision makers.

Local versus foreign experts

In recent years, foreign experts have begun to play an important role in advising on constitutional issues. At the same time, the number of nationals with knowledge of comparative constitutions has increased. What are the comparative advantages of foreign versus local experts?

Sometimes foreign experts are seen as better able to provide objective advice. When Malaya’s independence constitution was to be drafted, agreement seemed difficult due to local political differences. Consequently a panel of international experts was set up to make recommendations, which were largely, but not completely, accepted. Similarly, Namibia’s constitution was drawn up, at the request of the constituent assembly, by three foreign experts, within a broad set of principles agreed to among the political parties. The foreign experts were South Africans who were acceptable to all key political and other interests. In 1996, when Fiji had to draw up a new constitution, the process was held up for several months, as one side wanted a person to serve as chair of the constitutional commission, but that person was distrusted by the other side; progress was possible only after an agreement was reached on a foreign dignitary to serve as chair. And in a situation such as Sri Lanka before the government unleashed an all-out war on the Liberation Tigers of Tamil Eelam, or in the negotiations between the two parts of Sudan, the role of foreign advisers (at the political and technical levels) seemed inevitable. Since the 2008 political election violence in Kenya, most commissions established under new processes intended to resolve deadlock on constitutional and political issues have included foreign members in order to provide objectivity and impartiality.

If experts are sometimes necessary, it is also generally more important for them than most other categories of foreign advisers (see part 2.3.6) to be well informed about local history and contemporary circumstances. Those who are not attuned to local circumstances may tend to rely on what they feel has worked successfully in other countries, in which case some local factor of critical importance is likely to be overlooked. The chances that there are solutions that will work universally are slender. Local experts would generally have a better understanding of local circumstances and nuances. Third World experts, who would have a better understanding of local social and political circumstances, have been not favored by international agencies, much less Western governments.

Practical tips

Experts have important roles to play in constitution-making and implementation processes. With increasingly participatory processes, it is necessary to work out the precise role of experts and the modality of their contribution and participation. The role of the generalist (often a lawyer) as a person to integrate different inputs and ensure the coherence of the constitution needs to be recognized.

With the proliferation of “experts” and their sponsors in some processes, it has become evident that control and coordination become necessary, although neither is easy. Competition among states and international organizations to provide experts (and advocacy of their national models as the answer for another country’s problems) has often undesirable consequences. And to increase the usefulness of foreigners, the suggestions made in part 2.3.6 in relation to foreign advisers generally should be applied with rigor (that is, such foreigners should either already have extensive knowledge of the local context or be required to take courses or be given prescribed readings in local social, political, and constitutional history, demography, and economics. (For more on the role of the international community, see part 4.)


3.4.2 Electoral management bodies

Elections are managed by different bodies, sometimes by a government department and, increasingly, by separate bodies. There are basically two models of electoral commission: those that are designed to be independent of government and parties (a bit like courts), and what might be described as “balanced” commissions, in which each major party nominates members.

Usually the same body will have responsibility for any referendum; indeed, some bodies are officially named “commissions for elections and referendums.” In Ireland there is no electoral commission, and a separate commission is appointed every time a referendum has to be held. In some countries—usually in the civil law tradition—the courts also have some responsibility in connection with elections, including certifying the results.

An electoral management body may find itself involved in a constitution-making process:

  • when an election is needed for a legislature that will have the task of making a new constitution or for a constitutional assembly with the sole task of making a constitution; or
  • to conduct a referendum on either the adoption of a whole constitution or one or more specific issues.

If the electoral management body is a “balanced” body, designed to be fair to all parties, it may not be the most appropriate body to carry out these functions, especially if elections for the constitutional assembly are not to be conducted on ordinary party lines.

Election issues

The first resembles the ordinary work of an electoral management body. However:

  • the timetable may be different from that applying to normal elections;
  • the electoral system may be different;
  • those entitled to vote may be different for a specifically constitutional assembly (for example, even if nationals overseas are not usually able to vote, the diaspora may be entitled to vote; in Kenya [2010] prisoners could vote); and
  • civic education on voting for a body to make a constitution may present different challenges.

Because of the historic importance of a constitution-making process, an electoral management body might be able to get more assistance (indeed, might find more assistance thrust upon it) than is available for a regular election.

Box 41. An election for a constituent assembly

In 2008 Nepal elected its constituent assembly—to make a new constitution, and also to be the national legislature. The challenges that faced the electoral commission included:

  • the commission itself being totally new, the old one having been viewed as consisting of supporters of the old and discredited regime, and disbanded;
  • the need to register new voters;
  • the need to operate a new electoral system (with not only 240 single-member constituencies, as in the past, but 335 members to be elected through party lists);
  • political maneuvering, which meant that the details of the system (including numbers of seats) changed perhaps three times; and
  • the need to carry out voter education that recognized that this was about a constitution (but would also lead to the formation of a government).

The elections were postponed twice, once because the commission felt it was not ready. When the election was held, a huge number of ballot papers had to be printed in a short time. (About forty million were printed.) And this election having been part of an internationally monitored peace process meant that there was great international interest, and all sorts of foreign advisers.

Referendum issues

Some countries have had referendums only on new constitutions. In some ways organizing a referendum may be simpler than running an election: the whole country may operate as one constituency, and the ballot paper may be simple. On the other hand, the range of actors in the campaign may be quite different from that involved during an election campaign. Parties may not be organized for a referendum campaign. Even if they are, there may be many other groups that wish, or are permitted to campaign that would not do so in an election situation. The Kenya [2005] referendum campaign demonstrates some of these issues.

There will likely be a separate law that deals with administration of referendums. Conducting a referendum may be quite different from conducting an election. Instead of being asked to choose between individuals and parties, the electorate is asked to choose among two or more ideas—unfamiliar ideas for many.

Issues of framing the question are addressed elsewhere. (See part 3.5.) We should note here that sometimes this is the responsibility of the electoral management body itself, and sometimes of other bodies.


3.4.3 Government departments and agencies

In this section we discuss the range of governmental authorities (ministers, and departments and other agencies) that often carry out specialist, technical, coordinating, and support roles in relation to constitution-making processes, which roles may be extensive. They can include taking legal and administrative steps needed to establish constitution-making bodies, providing and managing funding for the process, organizing aspects of the process such as civic education or public participation, organizing transportation and meetings for a constitution-making body undertaking public consultation, providing security, providing legal advice or legislative drafting support, and developing and introducing into parliament laws to implement the constitution. Such roles on the part of a wide range of government authorities can be critically important to constitution-making processes. These roles do not usually involve direct public participation in making decisions about the constitution. They can, however, open the way to attempts to exercise influence, sometimes giving rise to tensions and conflict with constitution-making bodies. Further, government authorities do sometimes participate directly in constitution-making processes, for example through ex officio representation in constitution-making bodies.

Governmental authorities and the roles they play

There are great variations among different constitution-making processes in terms of the extent to which different kinds of governmental authorities carry out specialist, technical, coordinating, and support roles. There are some processes where there is little or no role for such authorities. Examples of these include situations where international actors play the roles in support of the constitution-making process that governmental authorities would normally play. These include situations such as those in Afghanistan, Cambodia, Iraq, Somalia, and Timor-Leste, where conflict prior to the constitution-making process has largely destroyed state institutions. There are also other postconflict situations where, although state institutions may exist, for one reason or another international community support for a constitution-making process extends to providing all or most of the support the constitution-making process requires, as in Namibia.

In the more common situation where government authorities—both political (e.g., cabinet ministers) and administrative (e.g., public service departments)—do carry out specialist, technical, and support roles, the authorities and the roles they play can be categorized in many ways. The following discussion divides them into three main categories.

Box 42. Oranges and bananas – Kenya [2005]

Kenyans were invited to vote on whether to adopt a draft constitution. The main campaigning groups were not political parties, but they were not civil society organizations. The Election Commission had to assign a symbol to the Yes campaigners and the No campaigners—just as they would to parties or candidates in an election. They gave the Banana to “Yes” and the Orange to “No.” There is no reason to suppose that this was other than random. But an orange proved an easier symbol to use than a banana—though both are local fruit. In fact the orange (symbol of the group that won the referendum) inspired the name of a totally new political alliance).

In truth the issues in the campaign were less the constitution than the performance of the government and ultimately ethnic loyalties.

Box 43. Ministers of constitutional affairs

The laws providing for Uganda’s constitutional commission and its constituent assembly (the two main consultative and decision-making bodies in that process) provided key roles for a minister of constitutional affairs, supported by a public service department (the ministry of constitutional affairs). The minister and his department were established in 1986, and largely developed the policy and legislation providing for the constitutional commission and later the constituent assembly. The Uganda constitutional commission statute of 1988 then gave the minister a number of significant roles in relation to the commission. They included roles in the selection, nomination, and appointment of the twenty-one-member commission, determining if the commission should submit interim reports, extending the period within which the commission was required to complete its work, approving employment of consultants or experts by the commission, and determining (in consultation with the minister for finance) the allowances payable to the members and staff of the commission. There was only one mention in the statute of the ministry of constitutional affairs: a provision requiring the funds of the commission to be “administered and managed by the Accounting Officer in the Ministry for Constitutional Affairs.” The constituent assembly statute of 1993 also made provision for important roles for the minister. In addition, it provided for a commission for the constituent assembly, which not only conducted the elections for the 288-member assembly, but was also required to convene its first meetings, provide administrative support for the assembly, and (if necessary) conduct any referendum that might be required under the statute to resolve any contentious issues that the assembly could not resolve. There was no provision in either statute guaranteeing the independence of the constitution-making bodies. Considerable tensions developed among the constitutional commission, the minister, and his ministry. To an extent, this reflected that the establishment of the constitutional commission reduced the public stature of the minister. There were also other tensions, mainly over what the minister saw as the excessive time the commission was taking to do its work, and concerns by the commission about control by the ministry of funding for the commission’s work to a degree that adversely affected that work.

Another case in which special authorities were established to both coordinate and support the constitution-making process was Albania [1998]. A parliamentary constitutional commission was established as the main constitution-making body. A ministry of institutional reform and relations with the parliament was established to assist the commission by organizing the consultative constitution-making process envisaged by the parliament. Lack of financial and other resources saw the minister responsible for that ministry cooperate with several donors to establish an independent agency (the Administrative Centre for the Coordination of Assistance and Public Participation). Its function was to act as a liaison between Albanians and international actors to facilitate the widest possible participation of citizens and NGOs in the process. In doing so it worked in close cooperation with both the constitutional commission and the ministry.

The Albanian arrangements were developed on an ad hoc basis, and were not the subject of statutory provisions. The Uganda arrangements are unusual in the extent of the detail in the statutory provision about the roles of supporting authorities, and in the extension of the roles to the point of giving the minister and his department extensive control of the process. It is more common for existing ministers and departments such as the attorney general or the Department of Justice to provide support roles. Those roles seldom give as much control over a process as was vested in the Ugandan minister for constitutional affairs.

Among the difficulties with arrangements giving government authorities key roles in establishing constitution-making bodies is that those bodies then take center stage. The previously important minister and department are left with little of significance to do. This experience can contribute to tensions between a minister and a supporting department, on the one hand, and the constitution-making body. If the minister retains important powers of control over the constitution-makers (as in Uganda) there is then the potential for conflict over timetables, directions in the work of the constitution-making body, and control of funds and other resources. Where differences over substantive constitutional issues arise, attempts to interfere in the operations of the constitution- making body may occur. In some constitution-making processes, provisions about the independence of constitution-making bodies are included in the statutes or other documents that establish them. In part, such provisions are intended to reduce problems with interference by ministers or other government authorities.

Authorities established mainly to provide support for the constitution-making process

In some processes, special authorities are established to undertake particular roles in establishing, coordinating, and supporting constitution-making bodies in various ways. They can be both political and administrative authorities. Such authorities can sometimes have responsibilities that extend to regulation and exercising a degree of control over the work of the constitution-making body. The laws establishing the main constitution-making institutions for the Ugandan constitution-making process from 1988 to 1995 provide an example.

Preexisting authorities that are given additional roles providing support for the process

In processes where new and specialized constitution-making institutions are required, it is common for authorities such as existing ministers and public service departments to be given the kinds of roles in establishing those institutions that the minister for constitutional affairs carried out in Uganda. In Kenya, for example, it was the attorney general who was required to submit to the president names of nominees for appointment to the Constitution of Kenya Review Commission.

Beyond their involvement in establishing institutions, existing ministers and departments play many other specialist, technical, and support roles. Police departments or other agencies may provide security for the process. The department of finance provides funds and perhaps manages the accounts. The department responsible for government information, and district or provincial administrations, may help provide civic education, and perhaps also help organize public consultation meetings about the people’s views. The department of justice helps the constitution- making institution prepare the constitution-makers, and perhaps aids in analyzing views. The government’s legislative drafting service usually provides the legislative drafter who develops the draft constitution in accordance with the instructions of the constitution-making body. More generally, the public service commission ensures that the constitution-making body is provided with the staff needed to carry out its work.

Sometimes such roles are the subject of provisions contained in the law or other document establishing the constitution-making institution. For example, it is common for statutes establishing constitutional commissions or constituent assemblies to make provisions about public service commissions providing necessary staff. But often the support and other roles are carried out because such work is regarded as part of the general responsibilities of the authority asked to provide the support.

Most, if not all, such roles can be of great significance in a constitution-making process, where the specialized constitution-making institutions will seldom, if ever, have all the resources available needed to operate independently of other governmental institutions. Almost always there is a need for close cooperation with other authorities, both political and administrative.At the same time, the need for support means that outside authorities may gain the ability to block, interfere, and politicize the process. While provisions guaranteeing the independence of the constitution-making body may help, they can seldom solve all potential difficulties.

External authorities that can influence or participate directly in the process

There are various situations where external authorities may influence, or participate directly in, the constitution-making process. An example of external influence concerns government control of appointments to constitution-making bodies. There are situations in which it is accepted that political considerations should determine the composition of a constitution-making body. Examples involve committees of a parliament (whose membership often reflects the numbers of seats that political blocs hold in the parliament) as well as constitutional conferences, roundtables, and peace processes. But when constitution-making bodies purport to be expert, neutral, or broadly (rather than politically) representative bodies, there can be risks in appointment processes controlled by government authorities. In politically charged postconflict situations, processes for appointing members of constitutional commissions, or particular categories of nominated members in constituent assemblies, can readily be heavily influenced by political factors. In the process, the credibility, and often the actual capacity, of the constitution-making body may be damaged.

As for direct participation, sometimes key government agencies have ex officio representation in a constitutional commission. In Kenya, the attorney general was ex officio a member of the Constitution of Kenya Review Commission and of the later committee of experts. (See appendix A.7.) The twenty-one-member Uganda Constitutional Commission included two ex officio members, one a senior army official and the other a senior official in the ruling party secretariat. Similarly, in some instances constituent assemblies have included members nominated to represent government authorities. The 284 members of Uganda’s constituent assembly included ten to represent the army and ten “appointed by the president in accordance with the advice of the cabinet.” Further, the chair and deputy chair had to be elected by the assembly from a list of five names submitted by the president.

The most obvious dangers arising when particular governmental interests are represented directly in constitution-making bodies involve pressure to protect governmental political interests generally, or pressure to protect the interests of particular parts of government (for example, the interests of the army, or of the attorney general, where a senior army officer or the attorney general holds a position ex officio).

Direct participation can also occur through government authorities making submissions to the constitution-making bodies. This can be dangerous, particularly if a government authority making a submission is particularly influential. On the other hand, when submissions of views are encouraged from all sources, it will be reasonable that government authorities use this avenue for seeking to influence the process.

Relations between constitution-making bodies and other authorities

On the basis of the discussion of the roles played by government authorities, it will be evident that the main potential problems concern possible political interference by such authorities in the work of constitution-making bodies. The extent to which such dangers arise varies considerably. There are many factors that may influence the extent of the danger in any particular case.

As already noted, there are constitution-making processes in which political influences can be expected and will tend to be open (e.g., parliamentary processes, constitutional conferences, and roundtables). With constitutional commissions and constituent assemblies, there may be less open political interference, but processes for appointment or nomination of members may lead to such influence being exercised. Whether such influence occurs depends to a large degree on the extent to which both the political and the bureaucratic arms of government are unified, well structured, and organized. Where a government is dominated by a well-organized and tightly structured political party with a clear ideological position, it may well seek to influence any constitution-making process in order to achieve its preferred outcomes. On the other hand, where the ideology of such a party supports democratization, conflict resolution, and peacebuilding, there may be far less pressure to interfere. By contrast, where a country has numerous political parties that tend to be dominated by narrow agendas of their leaders or a narrow ethnic base, there may be multiple motivations driving efforts to influence appointments to and decision-making by constitution-makers.

The following practical suggestions for ways of establishing constitution-making bodies so as to reduce problems in relations with other government authorities have particular relevance to bodies that are intended to be neutral, broadly representative, or expert:

  • Where practicable, when there are provisions for the appointment of members, the founding legal documents should avoid politically dominated appointment processes, and endeavor to provide for neutral or bipartisan processes.
  • Statutes and other foundation documents should provide for the independence of constitution- making bodies from political direction and control, and should also include independence in codes of conduct for members of constitution-making bodies.
  • As far as practicable, constitution-making bodies should be empowered to manage their own resources, so as to reduce the need for dependence on support from other government authorities.
  • In general, statutes and other founding documents should avoid giving ministers and other external government authorities legal control over resources and work programs of a constitution-making body.
  • Where international community actors are providing funding and other support to the constitution-making process, they should do so in ways that encourage and support the independence of the constitution-making body.

 


3.4.4 Courts

Courts may also be important in constitution-making. Sometimes a role for the courts is designed in the process, or even required; sometimes that role is an anticipated possibility, and sometimes courts play an unexpected role. It is more likely that a subnational constitution willbe challenged. It is not a supreme law, but must be compatible with the national constitution— and national constitutions sometimes state this specifically.

Courts with integral roles in constitution-making

Occasionally a constitution-making process cannot be completed without some involvement from the courts. The role of courts in certifying compliance with certain principles as to content, and perhaps procedural requirements, has been discussed in part 2.1.8.

In some countries, courts have a role in elections; they sometimes serve as the electoral management body, and sometimes have the function of certifying compliance with the law. That role might include certifying the result of a referendum on the constitution, as in Burundi [2005]. This sort of role for the courts is more common in the civil law tradition.

Courts with the possibility of blocking change

It is somewhat more likely that the courts will be invited to declare that a constitutional change is improper than that their positive approval will be required. And it is also more likely that amendments to a constitution will be challenged on the basis of procedural failures than that the substance cannot be validly introduced.

A constitution or peace agreement may specify certain principles on content of the new constitution without requiring a court, or any other body, to certify that the requirements have been satisfied. The only way to use such a provision may be to bring a court challenge to the document. A few such cases have gone to the German constitutional court, including one arguing that an amendment to agree to the creation of the European parliament was unconstitutional. Various constitutions say that certain parts may not be amended at all—and a challenge may be mounted to amendment on that ground. The Turkish constitutional court has ruled that an amendment to say that people’s rights to higher education could not be restricted “because of their apparel” was invalid because it infringed the unamendable secularism provision. The background was the intention to permit women wearing the “Islamic headscarf” to attend universities.

The South African interim constitution provided that one-fifth of the constitutional assembly could refer any proposed draft provision to the constitutional court for a ruling on whether it complied with the thirty-four principles, rather than waiting for the complete draft constitution. No such challenge was made.

There is no limit to amendment specified in the constitution of India, but the Supreme Court created the principle of the basic structure of the constitution, according to which certain features may not be changed. It has spelled out what these are in later cases, but in no case so far has it held an amendment ineffective. Courts in a few other countries have adopted a similar approach, including Bangladesh, and in one case Sierra Leone.

Courts and referendums

Various constitutions permit courts to block constitutional change because they can, or must, rule on the constitutionality of a referendum. This is true of the Turkish constitution, and the Albanian one. In the latter the court must review the constitutionality of issues put to referendum within sixty days—including whether the issues relate to constitutional provisions that cannot be changed.

In 1992 the Russian constitutional court declared that a referendum planned in Tatarstan (one of the Russian republics) was unconstitutional, because it essentially declared Tatarstan to be sovereign and a subject of international law. The Tatars ignored the court and held their referendum, but later renegotiated their relationship with Russia.

Special roles in implementation

In addition to the role played in most legal systems by the courts in implementing the constitution—by adjudicating on violations of rights and on the constitutionality of laws and acts of the authorities—some more specific roles have been given to the courts under constitutions. In countries where much of the law is made by judges (essentially the countries of the English common-law tradition), the courts may be directed to develop the law in a way that furthers constitutional objectives. (The South African constitution is an example.) The Kenyan constitution [2010] also provides for the possibility of the chief justice advising the president that laws have not been enacted as the implementation provisions require, and that the parliament should be dissolved and elections for a fresh parliament held; in that case the president would have no choice but to dissolve the parliament.

Problems

The risks of court challenges holding up constitution-making may be considerable where the process is controversial and political litigation is common. In Nepal, there have been court challenges to the interim constitution. In Kenya there have been many court challenges—some undoubtedly politically motivated, essentially designed to sabotage the process. This is not true of all instances, though; in one the court held that prisoners were entitled to vote in the referendum on the constitution.

Substantive challenges raise other issues. The courts may rightly view themselves as the guarantors of the constitution. But some existing constitutions are not genuine products of the people’s will, and there is a risk that the courts may stand in the way of that will being reflected in a new constitution.

In a country in serious need of constitutional overhaul, the courts may not be independent—of government, politicians, or business. Even if they are, assessing the contents, as opposed to the process, of constitution-making may require skills that the existing courts do not possess, because reliance on courts for constitutionalism has been limited.

In most countries there is the possibility on the one hand of “judicial activism” and the other of excessive “judicial restraint,” both of which may be politically motivated.

The Turkish “headscarf” decision has been roundly criticized as violating human rights, especially those of women. It takes a broad view of the implications of secularism, and is probably unconstitutional because it deals with the substance of the amendment, while the constitution says constitutional changes can be challenged only because when specified procedural irregularities have occurred. The constitutional court continues this activist approach, requiring the government to change some of the 2010 constitutional amendments—those relating to appointment to the court itself and another body that appoints senior judges.

The constitutional court of Kyrgyzstan in 2007 declared unconstitutional various amendments to the constitution hastily passed in response to popular demand. When the dictator Bakiyev was finally ousted in 2010, the interim government, under a new constitution, simply scrapped the constitutional court, in reaction against its earlier activism.

On the other hand, when the constitutional court in Albania “lost the opposition’s complaint” about a referendum and did not use its power to take a case about it on its own motion, there was suspicion that this decision was politically driven. (Some judges resigned in protest.) Otherwise, restraint may reflect division within the court—or a genuine reluctance to get involved in political matters.

Even discussion about the role of the courts is often politically charged. Allowing the courts to interfere with constitution-making is obviously controversial, even if the courts can be trusted to be neutral politically. They are impinging on the most fundamental act of people’s sovereignty: determining how they will be governed.

Special courts

Fear of court challenges has led the designers of some processes to create special courts. The South African constitutional court was designed to bring in a new style of judging; it was not created only for the purposes of the process. In Nepal the interim constitution provided for a special court merely to hear cases about elections to the constituent assembly. In Kenya [2010] a special court was created to hear cases about the process with both Kenyan and foreign judges. One reason for this was probably the expectation that the new constitution would include a provision involving the removal or at least the scrutiny of all existing judges, who had been subject to much criticism on the basis of both their competence and their independence.

Practical tips

A few points to bear in mind about designing a role for courts in constitution-making:

  • When designing a specific role, such as certification, for the courts, it is important to be sure why this is being done—what will be achieved?
  • Can the courts be trusted, and will their decisions have broad legitimacy?
  • If a special court is created, it may be necessary to amend the current constitution to legitimize taking jurisdiction away from the regular courts.
  • Strict time limits should be imposed to prevent litigation holding up the process indefinitely.
  • The courts should not be expected to sort out woolly thinking on the part of the designers of the constitution-making process about the way it should go.
  • The courts themselves should be prepared to recognize the limits of their own powers and competencies, act with restraint, and not thwart the will of the people unless that will clearly violates human rights.

A final point: a provision in a constitution that says “This constitution may not be challenged in court” contains a logical contradiction, namely that if the challenge is to the legal validity of the constitution it is a challenge also to the “no challenge” provision. A court may rationally decide that such a provision is ineffective.