1.1.4 Constitutions as contracts among people or peoples

Fundamentally, a constitution is the basis for the organization of the state. The state is the mechanism through which a society provides for the exercise of political, administrative, and judicial powers in order to ensure law and order, the protection of the rights of the people, and the promotion and regulation of the economy. As the notion of the sovereignty of people has superseded other beliefs about the source of ultimate authority, the constitution has come to be regarded as a contract among the people on how they would like to be governed. In most cases this is a fiction, as the people may have had no substantive role in making, or even influencing the decisions about, the new constitution. However, due to the notion of people’s sovereignty and the fundamental right of the people to participate in public affairs, there is a tendency, indeed a compulsion, to promote people’s participation in constitution-making (which is part of the inspiration for this handbook).

But the idea of a constitution as a social contract derives from another recent development—a contract not among the people to which each individual is a party, but among diverse communities in the state, often relatively new, where the bonds among the different communities are few and weak. Communities decide on the basis for their coexistence, which is then reflected in the constitution, based not only on the relations of the state to citizens but also on its relations to communities, and the relationships of the communities among themselves. In such situations, the constitution sometimes provides for “partnerships” among the communities in government and other forms of communal power sharing.

1.4.4 Agreeing on an agenda for constitutional reform

Sometimes the most difficult task in constitutional reform is building consensus about the need for reform, the type of reform, and the process for achieving reform. In some situations the need for reform is obvious to all—for example at the moment of independence, or after a revolution (e.g., as in Spain, Hungary, and Poland). Often reform is resisted by those in power, such as Marcos in the Philippines and Moi in Kenya from 1991 to 2000—they took office and attained power through the existing constitution. Sometimes a minority, excluded from government, wants reform but the majority resists it (if necessary by force of arms), as in Sri Lanka from the 1980s to 2009. In these situations the agreement to reform (or talk about reform) comes only after an intense conflict in which many lives may have been lost (as in South Africa, Sudan, and parts of India). These days it is not unusual that an agreement to consider or negotiate reform is the result of external pressure (as in Afghanistan, Cambodia, Kenya, Sudan, and Timor-Leste).

The agreement could be no more substantial than a decision to meet to consider reform, or it could be quite wide ranging, touching the areas of reform, the principles underlying reform, and the institutions for negotiation and the making and approving of reform measures. In conflict or postconflict situations, parties are unlikely to agree to talk about reform unless they feel that their critical interests will be protected. Thus, a prior agreement or understanding about the safeguarding of these interests, and about the fundamental constitutional principles to be incorporated in the final constitution, is often a precondition for negotiations. If the international community becomes engaged, then the incorporation of human rights as expressed in international treaties is likely to be mandatory.

1.1.5 Orientation of new constitutions

In this way—and also because of changing understandings and expectations of the functions of the state, which now include public welfare and policies for a just society, the promotion rather than just the protection of rights, honest administration, and a sustainable environment—the scope of the contemporary constitution goes well beyond its older counterpart. That constitution dealt principally with the structures and powers of the state (and often assumed rather than provided the method for electing the legislature or the government). The constitution did not specify policies of the state but left them to be developed by the political process within the framework of the constitution. With the rise of the middle classes in the nineteenth century, some civil rights of citizens (including property) were incorporated in the framework for policy and lawmaking, but for a long time there were no serious restrictions on state power.

With the increase in the functions, powers, and duties of the state, the constitution began to intrude on society, to try to change it, to assist disadvantaged citizens or communities, to take responsibility for education, health, the economy, and other matters that impinge deeply on society. India was one of the first countries to see the constitution as a means of transformation of social, political, and economic relations. This development has been criticized by some, for two reasons. They consider that the proper function of a constitution is to define state institutions and limit their functions. And they say that the impossibility of achieving most constitutional values and aspirations discredits and delegitimizes the constitution. This is a statement—often driven by the ideology of the commentator—that is hard to assess.

In many countries with great poverty, a constitution without the commitment to eradicate poverty and ensure social justice would enjoy little legitimacy from the mass of the people. There are also other dangers in a constitution intended to transform society. It raises high expectations, which if disappointed also lead to the loss of legitimacy. A constitution that seeks to transform social and economic relations will almost certainly be resisted by the privileged and the well-off, who normally have enough power and skills to undermine the constitution.

1.4.5 The form of the agreement

An agreement on constitutional reform can take various forms, depending on the context. When the international community, especially the United Nations, becomes involved, there may be a multilateral treaty or a Security Council resolution (as in Cambodia and Timor-Leste). When the debate is among political parties—a common occurrence—there may be one or more agreements among the parties (as in Nepal and South Africa). Even in such cases, it may become necessary to have some legislation to give effect to the agreement, as it may affect the power of an existing institution (e.g., the legislature) or even the normal method of amending the constitution. Legislation (even entrenched) may also be required if there is little trust among the key parties, as was the case in Kenya [2010] following the undermining of the 2005 process, which was attributed in part to the lack of entrenchment. Legislation will also be required if new institutions are to be set up for the process (e.g., an independent commission, although this may be done under an existing law authorizing the head of state or the government to set up such bodies administratively). Legislation, especially if entrenched, reduces flexibility, but adds security to the process (which is sometimes more important than flexibility). Under exceptional circumstances, the whole process, which entails fundamental constitutional changes, can be carried out purely on the basis of mutual understandings. (Hungary and Benin are good examples.)

1.1.6 Choices for constitution-makers

Some other issues also constitute serious dilemmas for constitution-makers. How much salience should the constitution give to ethnic differences? What is the proper balance among national, tribal, religious, and linguistic identities? Is it morally right to design all decisions for majority voting? What is the appropriate balance between principles and the details of policies? Are there some principles that must be stated in the constitution? Are there some matters of policy that are so clearly matters for governmental decision-making that they should never be entrenched in the constitution (and if so which are these)? The same questions can be raised about institutions, especially given the current vogue for independent institutions. Do too many independent institutions incapacitate the state and undermine legitimate political processes? In all these ways, does the constitution become too rigid, unable to respond to unanticipated problems? Are there problems with a constitution that is long, as many new ones are? And what are the criteria for success of the constitution that constitution-makers should apply? Is longevity one of them? If so, why? Shouldn’t each generation (the “people” for the moment) decide on its own system of governance?

In his assessment of many of these issues, the distinguished political scientist Giovanni Sartori concludes: “most recent constitutions are poor instruments of government” (Sartori 1997: 197). This conclusion may not resonate with some other commentators, who consider that the constitution in the contemporary world must serve several important functions and that it must balance competing interests. Constitution-makers have to decide on the orientation and scope of the constitution. For the purposes of this handbook, we need to understand the impact of different methods of constitution-making on the orientation and scope of the constitution, and in particular the consequences of popular participation. We discuss this matter throughout.

1.4.6 Scope of reform: Interim, minimal, or complete?

One of the initial choices countries face is whether to engage in incremental constitutional change or to replace an existing constitution with a wholly new document that reflects a new order. In reality, however, countries that initially decide to embark on one approach often eventually change, and instead adopt the other—for example, when the incremental change required is found to be so extensive that a whole new constitution is required, or when major changes prove impossible to achieve but gradual change proves possible. (See part 2.1.2.) In the incremental approach, the drafters must confront outstanding problems, remove the most offensive passages of the existing constitution, and address glaring omissions, and at the same time generate momentum for continuing revision. Chile has pursued this strategy to some degree, as has Indonesia; Israel did so as it set about establishing a new state. An advantage of this approach is that it can lessen the drama surrounding the constitution. In some settings, creating a constitution de novo and using the constitution to solve a range of difficult problems can raise political stakes and may increase societal or political divisions. However, incremental approaches are most workable when there is significant trust among political representatives and between representatives and their constituents. The contexts in which the United Nations and others work generally do not display this characteristic. There is a belief that the incremental option may not be available outside stable, liberal democracies—although the case of Indonesia suggests otherwise.

An interim constitution has some resemblance to incremental change, but the former is clearly accepted as transitional, leading to full reform, while there is no such promise in the incremental approach. On the other hand, when supporters of reform settle for incremental change, they anticipate that the logic of the change will most likely lead to further reform (without prompting resistance from the existing regime).

1.1.7 Constitutionalizing responsibilities and duties

This section returns to a key legal dimension of the constitution. The constitution is not only law, it is supreme law. This means that no law or policy that is inconsistent with the constitution is valid—and the social contract is safeguarded, both in its symbolic and in its substantive elements. The constitution binds all the people and their institutions, not only state organs. Experience has shown that the purposes and dictates of the constitution are not easily achieved. It is difficult to establish the rule of law under which state power is exercised for the purposes for which it is granted or in accordance with procedures prescribed by the constitution. Because this is not easy, especially in societies where other sources of power (such as customs or religion) are often inconsistent with those of the constitution, constitution-makers have to pay special attention to rules and procedures for implementation and enforcement.

1.4.7 Actors and public participation

A good process must balance the interests of different groups and communities. Sometimes the interests that dominate are those of the powerful, the urban population, or warring factions in conflict or postconflict situations. Frequently it is considered expedient to restrict public participation in order to ensure that interests critical to a settlement are privileged. By contrast, there are cases in which deliberate attempts are made to bring in groups that have been marginalized by political and economic forces. Indeed, the trend is toward the wide participation of the public, as a manifestation of its “sovereignty,” to secure legitimacy, and—most important— to find out the expectations and wishes of the ordinary people. Today’s process is likely to involve political parties, religious groups, ethnic communities, professionals, business organizations, trade unions, women, the disabled, diasporas, regions, and parts of the international community. There are many forms of public participation, such as representation in the constituent assembly, acquiring a knowledge of civics, making recommendations to the assembly, lobbying, commenting on the draft constitution, and possibly voting in a referendum, in some cases at various points in the process.

Public participation may run throughout the process, though the forms may change, as may the intensity of popular engagement. The sequence of the forms of public participation is an important element in designing the process: determining the appropriate time for public debates and input from the general public, specialist groups, and contributions from experts, particularly constitutional experts; the time for negotiations; the time for drafting; and the time for enactment. At each of these stages different forms of public participation may be relevant.

It is important to disaggregate the forms of public participation, since such participation is now understood to be relevant to most aspects of constitution-making. Many critical elements of public participation are discussed in part 2.2.2; not all forms of participation may have an impact on what gets into the constitution. Indeed, the most public and intense forms of participation, such as public hearings throughout the country, may have a smaller impact on the content of the constitution than a quiet conversation between the government leader and a principal Western ambassador. So in designing the process, we should pay special attention to how much the form of public participation is likely to influence the outcome—and here the rules for making decisions on the content and for the enactment of the constitution are critical. (See part 2.1.4.)

Usually the most important actors are political parties, except in a conflict or postconflict situation, in which the armed factions may have greater, if temporary, dominance. Political parties are likely to promote greater public participation than militias—but how much greater will depend on the democratic and participatory nature of the parties themselves. In both South Africa and Nepal, political parties dominated the negotiations for reform and the process for making the constitution. But the former process was fairly participatory, and the latter much less so, for in Nepal each of the parties was dominated by one or two top leaders.

The increase in the number of groups participating in the processes has complicated them. The presence of many groups, with their different and often conflicting agendas, puts a premium on the negotiating skills of those entrusted with the management of the constitution-making process. There is real risk that instead of the process leading to a national consensus, it will sharpen differences and render impossible the adoption of a new constitution.

Public participation can set in motion competition. This is most evident in the competition between the people and the politicians, but also in that between men and women, traditionalists and “modernizers,” and the like. To some extent competition is regulated by the rules for decision-making, especially with regard to which group is given the last say. (For example, if the final decision is to be made by the legislature, the earnest engagement of civil society and the development of a draft by a constitutional commission can come to naught if the legislature, driven by totally different considerations, vetoes it or amends it drastically.)

Therefore, while public participation is desirable, it comes with several dangers. It can degenerate into deception, promising people that their voices will be heard and then either twisting what they have said or just ignoring them. Neither inspires confidence in politicians, who are generally the ones responsible for such tricks. A second danger is that the role of experts may be minimized, or even denigrated, by the populism of participation. This may lead to an incoherent document. There is some evidence that public participation can lead to conservative, even intolerant, views when it comes to “moral” questions such as capital punishment, homosexuality, same-sex marriage, and abortion. Another danger is that social and ethnic divisions may become sharper as different groups fight for their interests. This leads either to conflict or to unwise or even unworkable compromises; both cases deny the objectives of “deliberative democracy” and of rational decision-making.

Public participation may not be restricted to domestic actors. In many conflict or postconflict situations, the international community (in different forms) may be an important actor in both planning and executing the process. Some parts of this public participation may be mandated by treaty or law, but a great deal of it may be informal or opaque, and sometimes it may entail plain intimidation. Equally, foreign involvement can be useful, and sometimes even critical to success. International involvement raises the questions of legitimacy and accountability: what is the moral justification for an international actor’s engagement in the affairs of another people, and to whom is it accountable? There are other ways in which a process may assume international aspects: the development of international norms governing the process and substance of constitutions; the ability to borrow from other constitutions, which has been facilitated by the Internet and the exchange of expert knowledge; the growth of an international class of constitution-makers and international nongovernmental organizations (NGOs). The varied participation of the international community is discussed in parts 2.3.12 and 4.2.

1.2 Issues of process

In this section we provide an overview of the issues that must be considered in designing the constitution-making process.

1.4.8 Deadlock-breaking mechanisms

It is possible that at some stages of the process described above, there may be a falling-out, and serious disagreements may appear. A disagreement can be procedural or it can involve principles or substance. For a procedural question, one possible solution is to seek a ruling from the courts. (The Kenya process [2005] stimulated numerous legal challenges to the authority of the commission and the constitutional conference, including one that questioned the validity of the whole process because there was no provision for a referendum; the court supported that challenge and thereby killed the process, even though a draft had already been successfully adopted by the conference, the equivalent of the constituent assembly.) The other kind of disagreement is less legal than political, and may make it difficult to arrive at a substantial agreement, running the danger of a stalemate and deep social divisions. Here the courts may be less helpful; they may aggravate the problem by finding for one party when what is needed is a compromise. To avoid legal involvement when it merely sharpens differences, other mechanisms can be adopted. These include referring the disagreement to party leaders (as in Nepal); postponing the contentious issue for future resolution (as in Uganda and Iraq); coming to a resolution by a subsequent vote with a smaller majority; and engaging in mediation by a group of “elders.” These mechanisms are not always institutionalized—there is something to be said for informal, ad hoc arrangements. For a discussion of dealing with divisive issues, see part 2.5.2.