1.4.9 Drafting the constitution

When we talk of drafting here, we make a distinction between the process by which decisions are made on the content of the constitution and the process of writing it. For the first, there are several options. Traditionally the draft constitution was prepared by the legislature or the constituent assembly, usually through a committee. The assembly also debated and adopted the text of the draft. These days, many drafts have been prepared by a body other than the one that debates and approves the constitution. Such a body is generally called a commission; it is usually supposed to consist of experts (most in law, but also in economics, political science, and public administration). If the commission prepares the draft, it will normally be bound by certain predetermined goals and key elements of its procedure (often including consultation with the people). The assembly, being a representative body, has a greater degree of autonomy in determining both values and procedure. (See part 3.1.2 for more on commissions and assemblies.) The commission-based process has greater scope for experts, the other for politicians. How expert opinion is to be balanced by views that are more political or “populist” is decided in part by this kind of division of responsibilities.

The advantage of a commission is that this part of the process—the vital decisions on the draft constitution—can to some extent be distanced from political parties, tap expert knowledge, promote public participation, and formulate proposals oriented toward national rather than sectarian interests, and can consequently provide a fair basis for negotiations, facilitating a compromise. However, the composition of the commission is often affected by the appointment of people, not necessarily experts, as surrogates for other, usually political, interests.

Most countries have to make a choice between the normal legislature and a specially convened body to create the constitution. Two sorts of factors influence the decisions. One we may call political: historical tradition; the need for legal continuity (changes made in the way that is set out in the constitution); the legitimacy of the legislature (if widely respected, it could be entrusted with the changes); the dominance of political parties (which tend to favor the legislature); and the feasibility of fresh elections (whether before or after the process). The other factor is strategic: which body is more likely to be less selfishly interested in the outcome (the commission versus the legislature); the desirability of including representation from all sectors of society (suggesting a specially convened constitutional assembly); a value placed upon civil society (leading to a participatory process); and the urgency with which the constitution must be completed (which would favor the legislature). (See part 3.1.2.)

The actual drafting (writing of the text) is normally, and should be, left to legal drafters, who will decide on the structure (architecture) of the constitution and the language of the text. The temptation to allow assembly members to draft the text should be resisted. The fixed and relatively well understood meaning of legal terms serves well the need for precision and consistency. Drafting is also not a suitable task for a large body of people. It is important to choose drafters who have experience drawing up constitutional instruments, which are in many respects different from ordinary legislation. As far as possible, simple language should be used. Drafters should be given the freedom to use their professional judgment on the architecture and text of the constitution, but they should respect the policy decisions made by the assembly. However, it is quite proper for them to draw to the attention of the assembly a decision that seems to be unworkable, or goes against fundamental constitutional values, and then seek fresh instructions. (See part 2.6.2.)