Part 2: Tasks in a constitution-making process

This book assumes that its readers are involved in, may expect to be involved in, or wish to understand the implications of the process of making a new constitution—especially a process that involves considerable consultation with and participation by the public. The structures by which this task may be performed vary according to legal and political traditions, backgrounds, contexts, local conditions, and other constraints.

In part 2 we focus on breaking down the larger task of “participatory constitution-making” into its various components. Each of these tasks will have to be carried out by someone, and here we examine what is involved in the tasks, leaving structures aside for the moment. We return to these structures in part 3. It is not possible to divorce studying a task entirely from the question of who will perform it, but we wanted to avoid confusing the reader by saying “the constituent assembly does this” or “the commission does that” because some readers might find that in their own national contexts, some body other than a constituent assembly or a commission was likely to carry out the task—indeed, their countries might not have embraced the idea of a constituent assembly or a commission at all. Our focus here is on the essence of the various tasks.

To visualize how a task might be carried out in a particular country, and what the constraints and opportunities are, it may be necessary to think at an early stage of who will carry out that task. We do not consider it our job to dictate who should carry out the various tasks—though we do not hesitate to comment on what experience seems to teach about this. It is for each country to decide, in the light of resources, context, and pressures, how best to get each task done. Table 2 indicates for a number of constitution-making processes who has done what task. And in part 3, when we discuss institutions and structures, we comment on what those structures have done, and might do.

Types of tasks

Constitution-making can be compared with designing a major public building. The authorities might think of their tasks as deciding what the building is for, why it is needed, where it should be situated, what facilities and spaces they want it to contain, what it should look like, and how it should be designed and built to achieve those results. They might want to consult the public, as users, about the design, layout, and location; questions of accessibility to certain users would arise, as would issues of time, scale, and cost.

Similarly, the constitution-making task will involve decisions about design, including who will use the product and how. There will be decisions about how to consult the public and how to use the resulting contributions. Municipal authorities do not have to educate their architects, but someone may need to educate the constitution-makers, as well as the public, about what a constitution is and what it can and cannot do. And the constitution-making process will require complex administration. In this part, therefore, we offer sections about decision-making on policy and technical issues, on educating the decision-makers and the public, and on carrying out public consultation. There is a section on the specific task of drafting the words of the document, and a section on the administrative tasks involved in managing this sort of process.

Organization of this part

This part is organized to some extent chronologically; we begin with tasks to be performed at early stages, and the part ends with the procedures for adoption of a constitution and some details about its implementation. But many tasks are carried out more than once in the process— notably public consultation, which might take place early in the process for such questions as “Do we need a constitution-making process?” and “If so, how should we design it?” Later on, the public might be consulted again: “What do you want in your new constitution?” And even later on, “What do you think of the draft that has been prepared?” Other tasks are more or less continuous (such as monitoring and management) or are reiterated (such as drafting and redrafting). Therefore, we have put like with like: tasks of working with the public, such as civic education and public consultation, are grouped together, as are technical tasks about the substance of the constitution, and management tasks.