1.2.1 Changing ideas and practices of constitution-making

Processes for constitution-making have changed over time. Once it was the prerogative of the monarch to decide on and grant the constitution to the people. (We find traces of this belief in several constitutions made as late as the twentieth century—for example, in Ethiopia, Jordan, Kuwait, Nepal, and Saudi Arabia.) Many constitutions were imposed on a vanquished or colonized people (for example, in Western imperial systems—the MacArthur constitution in Japan after World War II, and to a lesser extent in postwar Germany and in colonies at independence). In the early and middle years of the twentieth century, democratic processes of constitution-making became the norm, with the principal responsibility assigned to a parliament or constituent assembly (though many constitutions were still made without much public participation). Since the last quarter of that century, the emphasis has shifted to the active and intensive participation of the people—whether as individuals, social organizations, or communities—in the process (as in processes in such diverse countries as Bolivia, Kenya, Papua New Guinea, Thailand, and Uganda). This shift has been facilitated considerably by the broadening of the concept of people’s democratic rights, including public participation, as reflected in the International Covenant on Civil and Political Rights, and particularly the right of self-determination.

Public participation, in the context of the variety of purposes that a contemporary constitution may be expected to fulfill, leads to a complex and often lengthy process. In previous ages, experts in constitutional law and political science, under the auspices of the executive (or, less frequently, the legislature), played a key role in the process. Today the range of participants in the constitution-making process has increased greatly, as have the issues that constitutions need to address. Consequently, considerable attention is paid to the design of the constitution-making process and the fundamental principles that must determine the substance of a constitution. The design of the process is often a matter of domestic negotiations (which can be protracted); sometimes it is determined or influenced by the international community (especially in cases of intense internal conflict, as in Afghanistan, Cambodia, Kenya, Kosovo, Namibia, and Zimbabwe).