2.1.3 Starting a process: The law and the politics

Here we explore briefly the matter of how constitutional processes are started. There are legal questions, but also political ones—how does a group within a society get constitution-making on the national agenda?

When there is no constitution

In the rare case of existing states agreeing to form a union, and thus having no constitution that governs their new entity, they can either continue to operate separately or devise some temporary cooperation agreement until their new document comes into existence. Their agreement will probably set forth the process for making their new joint constitution.

Some recent examples of beginning with a constitutional “blank slate” have involved the international community—for example, Cambodia [1993], Timor-Leste [2002], Iraq [2005], and Somalia [ongoing process]. In Afghanistan in 2001, the 1964 constitution was revived on a temporary basis by the Bonn Agreement made among Afghan forces, with amendments because there was no functioning monarchy. In Iraq, the United States, which was an occupying power, essentially guided the drafting of a temporary constitution. In these situations there was no basis in existing national law for the constitution-making process, and no legal way to challenge it. After a coup, all or part of the constitution is usually suspended.

Table 3: Constitutional review timetable

Country Constitutional review
United States [1787] Congress can pass amendments by two-thirds vote; two-thirds of the state legislatures can call a constitutional convention
Portugal [1974] Normally there cannot be a review more frequently than every five years (but four-fifths of the legislature can vote to do reviews more frequently)
Papua New Guinea [1975] There must be a review after three years
Fiji [1997] There must be a review after seven years
Switzerland [1999] The parliament, one chamber of parliament, or the people can initiate changes
Kenya [2010] Any legislator can introduce amendments; one million citizens can initiate an amendment

When there is an existing constitution

An existing constitution will include a provision for constitutional amendment. Rarely will it specify the entire process of amendment; often it will say only how the final adoption of a change will take place.

Some constitutions talk only of “altering” or “amending” the constitution or provisions thereof. A few constitutions specifically mention the possibility of enacting a whole new constitution. If this is not envisaged, sometimes there is doubt about whether the amendment process could be used to introduce a whole new constitution. In 2008 the Kenyan constitution was altered precisely to provide a mechanism for introducing a completely new document.

Some constitutions have several different amending procedures for different provisions— perhaps providing for different majorities in parliament, or requiring a referendum for some changes. (Canada’s constitution is a complex example.) This is one reason for not having a procedure for adopting a whole new constitution.

A few constitutions provide for a constitutional review. They may specify who can introduce amendments—the government, members of the legislature, the people—and they may have timetable requirements to prevent frequent amendments, or even to ensure periodic review. Table 3 shows a few constitutional provisions about starting review processes.

Some constitutions have provisions that cannot be amended at all, while the Indian Supreme Court has held that some aspects of the constitution (such as federalism, republicanism, and secularism) are so basic that they cannot be changed.

Some examples of initiation

Table 4 summarizes how constitution-making processes were initiated in a few countries where existing laws could not provide a mechanism, or even a starting point.

Table 4: Constitutional review initiation

Country
Israel
[1948]
Bangladesh [1972] Fiji
[1997]
Afghanistan
[2004]
Nepal
[ongoing process]
What did existing law say? Declaration of existence of state, adopted by Israel itself: new constitution was to be adopted by an elected constituent assembly No law—because Bangladesh had been part of Pakistan Constitution (itself a postcoup document) must be reviewed within seven years, but no mechanism was provided for this Bonn Agreement— basic framework for process: constitutional commission and Constitutional Loya Jirga Constitution: amendments required two- thirds majority of each house (but second house was not recalled when parliament was reconvened)
What steps were followed? Assembly converted itself into an ordinary parliament and did not adopt a constitution; it used an institutional framework carried over from period of British mandate
Proclamation of independence declared the Bangladesh leader president with all powers— succeeded by war with Pakistan. After president released from detention by Pakistan he promulgated a provisional constitution and an order for a constituent assembly, and
the assembly drafted constitution
Government (under internal and external pressure) set up, in consultation with the opposition, a review commission, which produced a draft that went to parliament under the existing constitution Steps in Bonn Agreement were followed—though the president added (by decree) a constitution drafting committee to prepare a draft for the constitutional commission Interim constitution was drafted by agreement between political parties and passed by one house

The political dimensions of starting a process

The impetus for changing a constitution may come from within the government. This may be the result of the realization that the existing document has become unworkable—either because it has been changed so often or because circumstances have changed so that the constitution is no longer appropriate. Switzerland is an example of the former, and a committee was set up in the 1970s to look at the possibility of changing the constitution. Finland is an example of the latter; pressure for reform came from the parliamentarians, who wanted a greater role for parliament.

Unfortunately, pressure from within the government is as likely to be self-interested as it is to be focused on the national interest. The eighteenth amendment to the constitution of Sri Lanka was passed at the urging of the president, and removes limits on the number of terms the president may serve, places the power of appointment to many important state offices (including the election commission) in the hands of the president, and in other ways weakens democracy. It was introduced at the insistence of the president, certified as “urgent,” and passed in one day.

Governments are often reluctant to embark on reviewing the constitution under which they got into power, so constitution-making processes are often generated by civil society or “informal” political networks. The tactics that get a process moving might include constitutional action, legal action, intellectual action, academic action, and people’s initiatives. A combination of strategies is often needed.

Constitutional action might be a citizen initiative (specifically provided for by some constitutions—see table 5) or a general petition process under the constitution. Many constitutions leave the initiation of reviews to parliament.

Legal action is expensive, time-consuming, and restricted in its scope—but sometimes it is a court case that shows that constitutional change is needed, though this is likely to focus on some fairly narrow point rather than on the constitution as a whole. A court may explicitly criticize a constitution, or the outcome of a court case may show the constitution’s weaknesses.

By “intellectual action” we mean reasoned efforts to argue for a new constitution, and thus to convince people and the government that something must be done. Again taking the Kenyan example, during the 1990s a number of organizations produced drafts of new constitutions designed to show not only that the existing constitution was weak but that a workable alternative was possible.

Box 1. Colombia’s popular movement for reform

A particularly interesting case arose in Colombia [1991], where a popular movement developed in favor of setting up a constituent assembly (though constitutional reform was the responsibility of the congress under the existing constitution). It was proposed that this motion should be put to the people in a general election. But the law prohibited popular initiatives on the ballot paper; nonetheless, a ballot paper containing the issue was printed in the press, and five million people used that to vote in favor of the proposition. The president used a decree under emergency powers to propose the same question formally on the forthcoming presidential ballot. This had to go to the constitutional court, which approved the decree, relying on the sovereignty of the people. A total of 88 percent of the people voted for the constitutional assembly.

“Academic action” in the sense of the sort of writing that may critique a constitution in books and journals is unlikely to have much impact. But it may provide ammunition for activists, for lawyers taking legal action, and for the more conscientious members of the media.

“People’s initiatives” have included people organizing for constitutional change by starting an unofficial commission and even consulting the public about its views.