2.1.7 Preparing the constitution-makers

Most constitution-making exercises have included some form of education to prepare the constitution-makers for their role. Past efforts, however, have not always been well thought out or coordinated. Constitution-making bodies tend to be offered opportunities to travel or attend workshops organized by external groups rather than educational programs tailored to meet the constitution-makers’ specific needs.

It may be necessary to prepare the constitution-makers at several stages. For example, an overview of the rules of procedure and substantive constitutional issues may be needed at the start, with sessions about how to conduct civic education and public consultation efforts coming at a later stage. A process with several constitution-making bodies (e.g., a constitutional commission and then a constituent assembly) may require different educational programs for each.

As a result of conflict, many constitution-makers may have lost professional and educational opportunities, or they may not have experience in governance. Educational programs may therefore be welcomed and even requested. However, the offer of educational assistance can be a sensitive matter. Some constitution-makers may resent the suggestion that they do not know enough to do their job. Those who have served as parliamentarians in particular may feel that they have already mastered the issues—after all, they have been directly implementing the constitution. In the past, constitution-makers have even blocked attempts to create educational programs.

These barriers can potentially be overcome in the legal framework or rules of procedure by requiring all constitution-makers to attend officially organized educational programs. Sensitivity about the terminology used when organizing these programs can also be helpful. Terms used in the language of “education”—“study programs,” “orientation,” “initiation,” “induction,” “capacity-building,” “capacity enhancement,” and the like—can be viewed as condescending. The terms “seminars” and “workshops” are often considered the least offensive for those who feel they do not need an “education.” But for the sake of simplicity, in this section we use the word “education.”

The objectives

Constitution-makers can ideally be prepared to:

  • strategically plan for or manage the process (if this is required of members);
  • understand the structure of the process and any existing mandates or legislation governing the process, as well as rules of procedure and codes of conduct;
  • agree on principles that will guide their work and allow them to understand the mandate and principles set forth in the legal framework;
  • serve the national interest as well as their particular groups, and learn how to use the process to build consensus or even engage in nation-building;
  • communicate effectively with the public and other stakeholders;
  • carry out a coordinated and effective civic education and public consultation program; and
  • gain understanding about key substantive constitutional issues (such as human rights and decentralization).

The sections of this handbook on specific issues related to the process of constitution-making (such as rules of procedure and civic education) serve as a guide to the knowledge and skills that may be needed to carry out a task. This handbook does not discuss substantive constitutional issues (e.g., human rights, the judicial system), but we can provide some practical tips and points to consider for educating constitution-makers on these issues.

Developing a program for substantive constitutional issues

The content of an educational program on substantive constitutional issues could cover a wide range of topics. General topics that might be useful are:

  • the nature and purpose of constitutions generally;
  • the possible scope of constitutions and some of the arguments about what should and what should perhaps not go into a constitution;
  • how constitutions are used—legally, politically, and in other ways;
  • the language of constitutions—technical legal language and emotive language, and when these are used;
  • the importance of the structure of a constitution—how one part may interact with another;
  • the main elements of constitutions;
  • the main variations and options for designing key elements of the constitution, such as systems of government or separation of powers among branches of government;
  • international law and constitutions; and • how the existing constitution functions, including its strengths and weaknesses.

The purpose of educating constitution-makers about these issues is not to turn them into constitutional lawyers. Some have been elected or selected because they are representatives of marginalized groups or special interests. The aim is to help them translate their goals and aspirations for their constituents into constitutional terms. To participate effectively, they will need an understanding of how a constitution can—and sometimes cannot—advance the interests or groups they represent. The constitution-makers will also need a basic understanding of the wider issues, because they not only represent their particular groups and interests but should also reflect on the national interest. For example, women representatives are present not only to represent the interests of women but to bring their perspectives and knowledge to all issues.

Most constitution-makers understand some of the constitutional issues at stake, but likely only those issues that affect them and their own communities. Members of parliament may understand the electoral system and the lawmaking process well; fewer will understand the national financial system, or human rights. Few will understand how the security forces work and how they are—or could be better—controlled. Few people—probably not even most lawyers—will have read an actual constitution from beginning to end.

Many constitution-makers will find themselves having to educate their constituents or the wider public; unless they are well prepared it will probably be a poor teaching experience. The very exercise of constitution-making, and there having been conflict or disagreement about constitutional matters, are factors likely to generate new ideas for the constitution. But unless the constitution-makers are familiar with the existing constitution they will not be well placed to evaluate those new ideas.

Similarly, while constitution-makers should be expected to understand the language of a constitution and its key concepts, they should not be expected to acquire the technical skills of someone who drafts the constitution. They should understand their own roles as well as the roles of the various other actors in the process, including the legal drafters.

Given these considerations, at a minimum, educational programs on substance should enable the constitution-makers to:

  • participate fully in discussions on all issues and effectively draw on expert advice when they may require it, recognizing the limitations of their own knowledge;
  • explain basic constitutional concepts to the public;
  • understand suggestions that are offered for the draft constitution, and be able to ask questions of those who make submissions; and
  • read and understand drafts of the constitution—in part to ensure that decisions made on constitutional issues are accurately reflected in the language of the constitution.

Constitution-makers are sometimes divided into thematic committees that are responsible for weighing options on particular substantive areas, such as the judicial system. These committees may require more extensive education on their particular topics.

Approaches to learning

Expectations for educational programs vary from one culture to another. Some cultures will be more open to participatory methods. Usually, something more than a simple lecture is needed; many constitution-makers are not used to absorbing large quantities of information through reading or listening to lectures. Experience suggests that for learning about procedures, role- playing and other participatory methods are likely to be both acceptable and more effective. Studies on university teaching show that student attention flags after about twenty minutes. Lectures should be combined with techniques such as short discussions among small groups as well as question-and-answer sessions. These may help stimulate interest and attention.

Public consultation should be held with constitution-makers to learn what they want to know in order to do their jobs effectively. Different members of the constitution-making body may have different learning needs. Some members may be illiterate or not understand the working language being used.

Whoever designs and manages the educational program for the constitution-makers should look for local adult educational resources before requesting assistance from foreign experts. Some international organizations or embassies may have expertise on particular topics, but careful coordination will be needed to ensure that any externally sourced educational programs meet the needs of the process.

The international community also may offer study tours. In late 1947 the constitutional adviser to the Indian constituent assembly visited Washington, Ottawa, New York, Dublin, and London, and met a galaxy of distinguished judges, politicians, and scholars. As a result of those discussions he proposed a number of changes to the draft constitution that he had already prepared on the basis of the various committee proposals. This was a visit by a person with intimate knowledge of what was being proposed, a lawyer who was fully able to hold his own in discussions and benefit from them.

Many constitution-makers hope that they will be able to visit other countries to learn about their systems. Relatively recent examples have included:

  • visits by the members of the Fiji Constitution Review Commission to Malaysia, Mauritius, and South Africa (chosen because of the ethnic dimension in their politics and constitutional debates);
  • visits by officials and civil society leaders from the South Kordofan and Blue Nile states of Sudan to Indonesia to learn about the latter’s experience with secession (Timor-Leste) and autonomy (Aceh) because of the provision in the Sudan Comprehensive Peace Agreement about public consultation to be carried out by those Sudanese states over their future, in the light of the Southern Sudanese peace agreement;
  • trips organized by the Swiss Agency for Development and Cooperation for various Nepali political parties, government, academics, and members of civil society to Switzerland to look at the Swiss system, especially federalism;
  • tours by members of the Indonesian People’s Consultative Assembly involved in constitutional amendment to Thailand and South Korea to look at constitutional courts; and
  • visits by Ugandan constitution commissioners to the United States and various European and African countries.

Undoubtedly some of these visits have been of value. The members of the Reeves Commission in Fiji said, “We were able to form impressions that could not have been gathered from books or papers” (Fiji 1996: 61). But there is a big difference between a trip taken by members who are already knowledgeable about the situations in their own countries, and have some background in constitutional issues or political science, and one taken by nonexperts who may have been appointed for essentially political reasons.

The authors confess to a certain skepticism about the value of many of these tours. All too often they are viewed by the participants as chances to escape from the conditions at home, or as a rare opportunity for international travel or shopping expeditions. Ill-prepared participants may have no context into which to put what they see and hear. Many constitution-makers have been taken away on such tours when they are needed to perform key tasks in the constitution-making process at home. In Indonesia, a commentator said that although the ad hoc committee preparing a draft for one of the amendment processes for that country visited twenty-one other countries, this was something of a “picnic” because the committee members were not expected to prepare a detailed report.

Those who support or offer study tours seem to like them because they are high profile, please the participants, and redirect funds to the home country, as well as offering the rewarding opportunity for them to show off their own democratic wares.

Practical tips for ensuring that study tours meet the needs of the process include:

  • try to ensure that study visits are planned in consultation with those who plan the constitution- making events at home, so that a committee does not lose members at a crucial moment;
  • choose both the target country and the institutions to be visited carefully, to ensure that they really are relevant;
  • ensure that members who go are not taken just to please important political figures, but will benefit from the experience;
  • ensure that the language skills of the participants are sufficient (or that translations will be adequate);
  • provide preparation before the trip so that the participants know where they are going and why, and how the experience might relate to their own situations at home—they should be going with a purpose, be looking for certain information, and be able to ask questions;
  • hold a postvisit meeting to consolidate what the participants have learned;
  • brief those who will make presentations so that they understand something of the background of the people they will be meeting;
  • choose presenters carefully—it may be impressive to have the visitors meet the president or the chief justice, but they may not turn out to be the best resource persons; and
  • arrange that the participants contribute what they have learned to the wider constitution- making process.

Resources

In addition to face-to-face educational approaches, it may be useful to provide constitution- makers with essential information before the first sitting of the constitution-making body (especially a constituent assembly or other large, nonexpert body). This can come in the form of a handbook and include practical logistical information about transportation, accommodations, security practices, remuneration, and the like. It can also describe what resources, if any, such as researchers or Internet access, will be available to the members.

Documentation provided should include the legal mandate, the steps in the process, the time allotted to the process, any rules of procedure or codes of conduct that will govern the conduct of the members, and any other relevant materials. Ideally, background papers on basic constitutionalism, the key features of the existing constitution, a historical analysis of constitutionalism in the country, and an introduction to some of the key constitutional issues can also be provided. In Afghanistan [2004] the secretariat to the Constitutional Loya Jirga, a kind of constituent assembly, prepared these materials with assistance from a foreign adviser.