Constitution-making in the 21st century

Constitution-making in the 21st century

The Eighth CCF Lecture
University of the South Pacific, Suva, 3 November 2011
Cheryl Saunders
Melbourne Law School

Introduction
Any human society has a set of rules that governs the relations between its members and the ways in which they make collective decisions. Historically, in much more simple times, the rules were customary and organic. But the idea of a Constitution that took hold from the late 18th century had significant additional features. The primary constitutional rules took written form, typically in a single document called a ‘Constitution’. These rules became supreme or fundamental law, overriding all other law and government action. The Constitution both empowered and limited institutions of government. Over the course of the latter part of 20th century, this became the conception of a Constitution that prevailed throughout the world, with only a very few, sui generis, exceptions.

Once a Constitution is understood in this way, legitimacy becomes an important question. To put the point in another way, the question is this: under what conditions will a community, and its leaders from time to time, accept that certain rules have ‘constitutional’ status, so that they override all others and limit what can be done in the exercise of public power, not only now or next year, but over what might be a long period of time? The answer may depend on a range of factors. Who authorised the Constitution? How was it made? What is in it? How well does it work? What relationship does it have to the previous Constitution? The weight given to each of these factors and the way in which they apply has varied over time. Once, for example, it was accepted, in both Fiji and Australia, that Imperial authorities could legitimately put Constitutions in place, at least as a matter of law, because they represented the ‘sovereign’ power. Those times have long since gone.

I have been invited this evening to talk about Constitutions in 21st century. Given the place and the audience, I should make it clear in advance that I do not intend to say a great deal specifically about Fiji. I have followed constitutional developments in Fiji since the 1990s and I am aware that constitutional debate is about to begin again. How that debate unfolds, however, ultimately is a matter for Fijians; hence my topic. Nevertheless, Fiji also is an integral part of the constitutional world of the 21st century. I hope that what I have to say tonight is useful and relevant for this reason.

A very large number of Constitutions has been made across all regions of the world since the fall of the Berlin Wall just over 20 years ago. By my rough calculation, around 104 new Constitutions have been put in place during this time, generating a wealth of experience. And the spate of constitution-making is not yet over. Constitution-making processes are presently underway in, for example, Nepal, Southern Sudan and Thailand. A new wave of constitution-making has recently been kick-started by the Arab spring in countries around the Mediterranean: Morocco, Tunisia, Jordan, Egypt and now, presumably, Libya as well.

As constitution-making evolved over this period it assumed some distinctive features, which became even more pronounced over the first decade of the 21st century.

First, there is now, effectively, universal acceptance that the authority for a Constitution must derive, in one way or another, from the people of the state concerned. This idea is not, of course, new, but it has been reinforced by the aspirations of people everywhere in the aftermath of the overthrow of authoritarian regimes. Moreover it now has a practical as well as theoretical dimension. People expect actually to be involved in the constitution-making process; a point to which I will return.

Secondly, most Constitutions now are made for multi-cultural societies. This is a change from earlier times when it was assumed, rightly or wrongly, that a Constitution was made for a people with a common history, religion and language to whom, however fancifully, a common will might be attributed. These new conditions place much greater expectations on Constitutions: to build the nation as well as the state; to provide at least some of the missing cohesion; to protect effective minorities against majority decision-making. To fulfil these expectations, the Constitution-making process must not only be inclusive, but must also engender trust, between segments of the community and, critically, between their leaders. The deeper the divisions in society the more important trust is likely to be and the more challenging it will be to achieve.

A third, marked characteristic of constitution-making in the 21st century is the involvement of the international community, or segments of it, in what traditionally has been regarded as quintessentially the business of a sovereign state. International involvement is most intense where a constitution-making process is preceded by some form of conflict, attracting the peace-making offices of the UN or other states, which in turn have the potential to spill over into constitutional process or design. Even leaving these extraordinary – although not uncommon- cases aside, however, international law now impinges on constitution-making in a variety of other ways. International human rights norms increasingly are incorporated into Constitutions, either by reference or in transcribed form. And an argument is gathering strength that public participation in constitution-making is not only a sensible national strategy but also a right under international law. The obvious tension here between international standards and local constitutional ownership is eased somewhat by the reality that local populations typically expect their own Constitutions to comply with such international norms.

One final characteristic of constitution-making in the 21st century is the emphasis on process, as distinct from substance; on how the Constitution is made, as distinct from what is included in it. Process has always been important, in the sense that both the role and status of a Constitution mean that it should be made in a way that differs, preferably significantly, from the ordinary law-making process. The significance of process is now further enhanced, however, by the contemporary focus on public participation in constitution making and the need to build trust. Getting these right increasingly is seen as the key to a Constitution that is effective and lasting. Process can underpin the legitimacy of a Constitution, increase public knowledge of it, instil a sense of public ownership and create an expectation that the Constitution will be observed, in spirit as well as form. A constitution-making process may assist to set the tone for ordinary politics, including the peaceful transfer of power in accordance with constitutional rules.

I propose to build the rest of my remarks tonight around the stages of a 21st century constitution-making process. I will distinguish three in particular: agenda setting; design and approval; and implementation. No process is exactly the same, but all go through these stages, whether they are acknowledged or not. In relation to each of them I want to continue to trace the themes that I have identified already, including legitimacy, trust, and public participation. To the extent that I can, I will try to bring the argument down to earth, by referring to practical examples.

Agenda setting
Concept
In any constitution making exercise there is a stage before the process gets much publicity, when the agenda effectively is set. The idea of an ‘agenda’ for this purpose includes both the way in which the Constitution will be made and the scope of the changes to be made. As far as the former is concerned, relevant considerations include, for example, the nature of the constitution-making body, the electoral rules that should apply, how the state is to be governed during the constitution-making process, procedures for ratification of the Constitution and arrangements for public consultation. Ideally, the entire process should be prescribed in advance, together with realistic time-lines, with a degree of inbuilt flexibility.

This is the stage also at which a decision must be made about whether to maintain legal continuity with the previous constitution. A decision in favour of continuity effectively determines how the new constitution will be brought into effect as law. A decision against continuity leaves this question open. Many, although by no means all, constitution-making processes seek continuity. In some cases, however, a decision is made to return to an earlier Constitution, as in Indonesia and Thailand. And in others the new Constitution is intended to stand alone, as a new expression of popular will. Continuity is relevant to legitimacy but not essential, as long as legitimacy can be secured in other ways. A decision to make a new Constitution in a way not prescribed by the old one thus makes the design of an alternative constitution making process all the more important. I note in passing that a decision against legal continuity does not affect the question whether the previous Constitution is used as a de facto model, in whole or in part. Most new Constitutions build on familiar principles and institutions, even where they are ostensibly making a fresh start.

The agenda setting phase also determines the limits of change: even if the ultimate decision is that there are no prescribed limits. So, for example, if it is decided to design a new Constitution by amending the old one there is likely to be an indication of the areas in which change is sought or, conversely, of the parts of the Constitution that must be preserved. Even in the case of a process to establish a completely new Constitution the essentials of the new arrangements may be prescribed in advance: democracy, republicanism, parliamentary or presidential, the form of electoral system; and so on. There is a link between limits of this kind and the design of the constitution making body itself. The more legitimate the constitution making body in its own right, the greater its potential to depart from its terms of reference as long as, ultimately, it is confident of securing final approval for the Constitution. The decision of the Philadelphia Convention in 1789 to ignore its mandate by drawing up a new Constitution for the United States is merely the most famous example of this kind.

Method
Because this first agenda setting phase of a constitution-making process has a relatively low profile, there is a danger that important decisions will be made by default. Most obviously, where a country is emerging from conflict, all or parts of the constitutional agenda may effectively be set in the course of the peace process, in a way that has the advantage of bringing the conflict to an end, but has unfortunate consequences for the Constitution in the longer term. The Constitution for Bosnia-Herzegovina, which was literally prescribed by the Dayton Peace Accords, is a case in point. Even in less dramatic circumstances, however, decisions about all or parts of the constitution-making agenda may be made inadvertently or without adequate planning. And yet this is a critical period, at which the decisions made can effectively determine the success or failure of a constitution-making process. This is also the point at which it is important to lay the foundations of trust between key stakeholders.

The significance of this phase can be illustrated by the example of South Africa, as it moved to create a new, non-racial Constitution following the collapse of apartheid. For obvious reasons there was deep mistrust between the principal political groupings. Violent acts had been committed on all sides. There was potential for even more violence unless a mutually satisfactory solution was reached. And the interests and goals of the principal players were diametrically opposed. Consider, in particular, the position of the two major parties. The white National Party government controlled the existing Parliament, which had been elected on a racial franchise. It also controlled the other institutions of the state, including the police, the military and the broadcasting service. It was clear that it would lose power to a black majority once non-racial elections were held. And it was apprehensive of the Constitution that would be put in place by the black majority.

The African National Congress, on the other hand, was confident of easily winning the elections once a non-racial franchise was introduced. For that, however, constitutional change was needed. And it was not prepared to accept that the new Constitution could be put in place by the existing white majority Parliament, which in its eyes, not surprisingly, lacked legitimacy for the purpose. Nor was it prepared to allow the National Party to control other key institutions of the state while the elections and the constitution making process were underway. While it could have seized power by force and made a Constitution unilaterally this would have precipitated a blood-bath, which was in no-one’s interests.

The eventual solution provides a text-book example of bringing stakeholders together during the agenda setting phase to agree on both a process and constitutional outcomes with which all parties could live. At the risk of oversimplifying a highly complex and fraught process the key steps were these. A Multi-Party Negotiating Forum agreed on 34 principles with which the final Constitution must comply. These included, for example, a democratic system of government based on equality and non-discrimination; separation of powers; judicial independence; proportional representation; freedom of information; and the protection of linguistic and cultural diversity. The 34 principles were enshrined in an interim Constitution, which was written by the MPNF but formally enacted by the white majority Parliament. The Interim Constitution thus created continuity with the Constitution without jeopardising the legitimacy of the final Constitution that was still to come. The Interim Constitution also provided for the election of a new Parliament on the basis of a non-racial electoral system; set out a process by which this Parliament, doubling as a Constitutional Assembly would draw up and approve the final Constitution; and provided arrangements for power-sharing in government during this period. In addition, to give security to all parties that the constitutional principles would be observed, the Interim Constitution required the final Constitution to be certified as compliant with the principles by a new, independent Constitutional Court.

This process, broadly, worked and the South African example still is much admired. The details of it are not important and may be difficult to replicate precisely elsewhere. The significance of the South African case for present purposes is that it established a sufficient level of trust between stakeholders to enable them to reach agreement on the parameters for a new, democratic Constitution and on the open and participatory process by which it would be made. In doing so, they also solved the problem of bridging the gap between a government with contested legitimacy and a new governing regime based on an undoubtedly legitimate Constitution, through the useful device of an interim Constitution.

Public participation is most difficult during this first phase of a constitution building process. Typically, this stage is less formal and transparent. Negotiations between stakeholders may need to be confidential to be effective. On the other hand, public participation may be necessary to gain public acceptance of the legitimacy of the process and to inform decisions about critical features of the new Constitution. This was somewhat less important in South Africa, where the MPNF was broadly inclusive and the two major parties were confident that they were speaking for their members. This is one aspect of the South African process that was criticised, nevertheless. Under less favourable conditions, public participation in an appropriate form is likely to be even more important during the agenda setting phase.

Design and approval
The second phase of a 21st century constitution making process is more familiar. This is the stage during which a draft of the Constitution is developed and becomes law. Exactly what this involves depends on the mechanism used, to which we will come in a moment. But on any view it requires policy decisions about the content of the Constitution, a drafting process to give these decisions legal form, agreement on the draft as a whole and a procedure for bringing the Constitution into effect as fundamental law.

Various different mechanisms are available for this purpose, alone or in combination with each other. Three of the most common are as follows. The first is an advisory body of some kind, constituted by experts or representatives or both. The second is an elected Assembly, which may be either a regular Parliament or a specially constituted Constitutional Assembly. The third is a referendum. Each of these mechanisms has strengths and weaknesses. An advisory body may have expertise and may even be broadly representative but will not have the legitimacy to bring the Constitution into effect as law. It is always, therefore, combined with another, more democratic process. An elected body may have legitimacy in its own right to enact the Constitution. But oddly, it may not be sufficiently representative for constitution-making, if its composition relies solely on the ordinary electoral process. If the elected body is a Parliament, moreover, it may find it hard to rise above ordinary politics; while if it is a Constituent Assembly, there may be a question about its relationship to the Parliament. Finally, a referendum cannot stand alone but relies on some other process to design and draft the Constitution. In theory, ratification by referendum confers a high degree of legitimacy. But a referendum is also a blunt instrument. The quality of the Constitution depends on the earlier process, whatever it is. And a referendum must be coupled with a very effective public information campaign for the vote to have a chance of really reflecting public opinion about the new Constitution.

The arrangements for design and approval of a new Constitution should be chosen with its legitimacy and effectiveness in mind. In practice, the final choice is likely also to be influenced by a combination of constitutional tradition and conditions on the ground. Is there a (suitable) existing Parliament? Is a referendum practicable? Are there groups who should be included in constitutional deliberations but who would be unlikely to succeed in an ordinary electoral contest? These and similar considerations help to explain the very different deliberative processes adopted around the world in relatively recent times in, for example, Timor Leste, Kenya, South Africa, Indonesia and Nepal.

Important though these choices are, it is also necessary in each case to pay attention to a host of lesser but important details that may tip the balance between failure and success. Most constitution-making bodies assign initial responsibility for parts of the new Constitution to a series of committees. How should the constitutional cake be divided for this purpose? And how should the decisions of the committees be co-ordinated? What should be the time frame for finalising the draft Constitution? How should deadlocks be resolved? Should super-majorities be required to approve the Constitution in an Assembly or by referendum, in recognition of the higher status of a Constitution? What should be the minimum prescribed turnout for a referendum?

This is the phase also in which extensive public participation is widely expected and practised. Designing effective public participation in constitution making is, however, rapidly becoming an art in itself. The days have long since passed when public participation took the form of public meetings addressed by participants in a constitutional process, seeking public approval for developed constitutional proposals. The public is now expected to be engaged actively and during the formative stages of constitutional deliberation. This requires a foundation of public information and education in a form that is helpful and reliable. It needs to be tailored to the needs of different segments of the public and made available through a wide range of media. Laying this foundation is not easy, because constitutional ideas are often so abstract.

Successive constitution-making exercises have learnt from each other, in this regard. The engagement of the public in South Africa, for example, was another much admired feature of this process, ultimately attracting 2 million public submissions. Many of the South African techniques have been adopted elsewhere. On the other hand, embarrassing questions later were raised in South Africa about whether all these submissions actually had been taken into account. More recent processes accordingly have paid greater attention to ensuring that submissions are collated, analysed and made publicly available so that contributions from the public make a difference to the Constitution that is not only symbolic but real.

There is continuing innovation in the design of deliberative constitution-making processes with extensive public participation. The high water mark so far is the very recent constitution making process in Iceland. You may recall the disastrous financial collapse in Iceland in 2008. It led to widespread dissatisfaction with the political system, as well as with Icelandic financial institutions, and to a movement for constitutional change. The body in Iceland with the legal authority to replace the Constitution is the Icelandic Parliament, or Althing. Ultimately, presumably, it will act. In the meantime, however, an eye-catching and elaborate preliminary process has been underway. It began with a discussion about a new Constitution involving 1000 delegates, randomly selected from the public. Following this brief, one day meeting a Constitutional Council was appointed, following an electoral process, to draw up a Constitution for submission to referendum. And all this, as I understand it, before enactment by the Althing. This Council used the technique of ‘crowdsourcing’ to engage with the public about the constitutional draft, using all forms of social media including Facebook, Twitter, YouTube and Flickr. The draft Constitution has now been presented to the government of Iceland and no decision is expected until next year. But I am sure that we have not heard the last of crowdsourcing as a technique in 21st century constitution-making.

Implementation
The final phase of a constitution making process is implementation. This phase extends for an indefinite period from the time the Constitution is passed. For obvious reasons, it is most intense in the first few years. The immediate target of implementation is the wide range of action that needs to be taken to give any Constitution effect. All manner of laws must be passed including, for example, electoral laws. Constitutional institutions, such as Human Rights Commissions, must be established, Judicial and other appointments must be made. The first legislature must be elected and its committees established. And so the list goes on. Less obvious, no less important but undoubtedly even more difficult is the need to establish a constitutional culture in which constitutional requirements are understood, and both the letter and the spirit of the Constitution are observed, by those who have the responsibility for exercising public power.

Until relatively recently this stage of constitution-making attracted little attention. Once a Constitution became law national euphoria died quickly, the international community lost interest and implementation was left to the ordinary political process. This has now changed, as various constitutional failures have drawn attention to the significance of the implementation phase. Implementation is now regularly taken into account in designing a constitution making process to try to encourage vigilance after the Constitution takes effect. In one recent spectacular example, in Kenya, the demands of implementation are anticipated in the Constitution itself. Schedules to the Constitution identify the legislation that needs to be passed, prescribe both time lines for doing so and sanctions for failure and create a Constitution Implementation Commission, together with a parliamentary oversight body. Interestingly, the CIC is also charged with the responsibility of involving the public in the implementation process.

The new focus on implementation is timely and necessary. But I suspect that there is only so much that can be done through formal implementation arrangements of this kind. The effectiveness of the Kenyan approach still remains to be seen. In the end, a Constitution must attract natural support, from those engaged in public life, from civil society and from the public at large. And so we return to the themes with which I began, the importance of legitimacy and trust.

Conclusion
Let me make three broad observations by way of conclusion.

First, constitution making has changed significantly over the last 15-20 years and is continuing to do so. Thanks to the sheer volume of constitution making we have learnt a great deal and there is now a considerable body of practical experience. As a generalisation the trend is towards openness, inclusivity and the active involvement of the people at all stages of the process. This is a complex trend, however. Leadership and vision are necessary too. A constitutional process needs to produce a workable result. In the end, the goal is to design a process that is worthy of a task as significant as that of making a Constitution by which people will be governed, which will be recognised as legitimate, and respected, by those to whom it applies.

Secondly, an ambiguous relationship has emerged between national action and international norms in the sphere of constitution-making. Constitutions are inherently local instruments. They must respond to local needs and they must be ‘owned’ by the people of the state concerned. It is hard to see how they can effectively perform their functions on any other basis. At the same time, however, there are international standards for democracy and human rights which now have implications not only for the substance of constitutions but also for the processes by which they are made. This tension between localism and universalism is evident across the whole field of constitutional law, attracting a great deal of attention from both practitioners and scholars. It is far from clear at the moment how the balance finally will be struck. For present purposes, however, the two can broadly be reconciled as national communities, often armed with considerable knowledge about what is happening elsewhere, draw on international standards to measure the legitimacy of their own Constitutions and the ways in which they are made.

One final, obvious, lesson from the experiences to date of the 21st century is that making a Constitution is not easy and the outcome is never exactly what everyone wants. One of the reasons for the emphasis on process is to enable a satisfactory compromise to be reached between the competing interests and ideas that are features of in modern communities. As a fall-back, there are well-known instances, of which India, Ireland and Chile are examples, in which some problems have proved so intractable that they have deliberately been left unresolved in the interests of agreement on an otherwise satisfactory Constitution, with a view to finding a solution over time through constitutional evolution or formal change. It does not seem to me desirable to embark on constitution making with less than the best possible Constitution as a deliberate goal. Constitutional moments are too rare and too important to be wasted. But it may be useful to remember that techniques of this kind also have worked, in various parts of the world, when the constitutional going gets sufficiently tough.

ENDS

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