2.1.1 The constitutional starting point

A country that is contemplating a constitution-making process may:

  • currently have no constitution at all;
  • have no acceptable constitution;
  • have a functioning constitution, but one that is expected to be replaced by a new constitution; or
  • contemplate only amendment of an existing document.

Having no constitution at all is a rare situation, but it can occur if a new country is carved out of an existing one, or if a number of existing countries decide to form a new, perhaps federal, state. Much more common is the situation in which conflict or radical political change has made the existing constitution unacceptable. Usually it is the institutions, the distribution of power, and the access to resources that are unacceptable, but sometimes even the existing document cannot be tolerated—perhaps because of who made it—even if the new institutions may not differ much from the old. Sometimes the existing situation is so unworkable or so unacceptable that constitution-making has to take place in two stages: first, an interim constitution is prepared; then, through processes established by the interim constitution, the final constitution is created.

The following examples indicate the variety of starting points and incentives that have affected constitution-making processes:

  • Timor-Leste—was a totally new country carved out of Indonesia; for a while it operated on the basis of United Nations regulations, but it needed a constitution.
  • South Africa—had a fully functioning constitution, but it was based on a racist rejection of any rights for the majority of the population; an interim constitution was adopted as the result of negotiations between the old regime and representatives of the majority. This was passed into law through the processes of the old constitution, and under its processes the final constitution was prepared.
  • Afghanistan—had been controlled by the Taliban, who ruled in compliance with their view of Sharia (though they did say they used an existing constitution with its un-Islamic elements removed). After the Taliban were driven from power, the only constitution that seemed acceptable to the United States and the transitional Afghan leaders was that of 1964; shorn of its royalist elements, it was adopted as the interim constitution.
  • Switzerland—had a constitution dating from 1874 that had been amended 140 times. Changing it was challenging, but it no longer reflected many accepted principles, including human rights; it was decided that a new document was needed.