IACL World Congress Workshop: "External Influences on Constitution-Building Processes
20 June 2018
Cheryl Saunders, Constitution Transformation Network Co-Convenor, and Chaihark Haim convened a workshop on "External Influences on Constitution-Building Processes" during the IACL Congress. The workshop was a forum for exchanging ideas and arguments between participants—both theoreticians and practitioners—from a range of constitutional traditions and regions regarding these and other issues related to external involvement in the process of constitution building.
At least since the US interventions in Iraq and Afghanistan, constitutional scholars have been debating the merits and demerits of “imposed constitutionalism.” In some jurisdictions, similar issues had already been discussed under the rubric of “autochthonous constitution.” The idea that a constitution will be neither lasting nor legitimate unless it comes from the local people is of course a very powerful one. Theoretically, it is often understood to be a requirement of the principle of popular sovereignty. Practically, it may influence the effectiveness of the constitution.
Of late, however, such ideas have come under increasing scrutiny. As a descriptive matter, questions have been raised regarding the tenability of the “imposed/non-imposed” dichotomy. For example, recent instances of constitution-making—from Africa to the Balkans to South Asia to the Pacific—have all been the product of different forms of “joint ventures” between external agents and local actors. Even Japan’s postwar constitution, previously considered the paradigmatic case of an imposed constitution, is now known to have been made under conditions where locals had considerable agency. This suggests that there may be a spectrum, along which the relative involvement of local and international actors varies. Nor is this necessarily a new phenomenon. On one view, marks of foreign influence or other international impact can be found in even the earliest national constitutions.
In contemporary conditions, questions are also being asked regarding the conventional view that foreign involvement in a nation’s constitution building process will necessarily weaken its legitimacy. The proliferation of ‘guidelines’ and ‘standards’ from such international bodies as the UN and the Venice Commission regarding various aspects of a country’s constitutional arrangement may reflect a growing assumption that external agents can be legitimate partners in the process.
Despite the incidence of external influence on constitution building, however, the phenomenon remains deeply undertheorized. We still lack a proper framework with which to capture and understand the different modalities and effects of foreign involvements. What should be the proper vocabulary to be employed in assessing the influence of external agents on the legitimacy of national constitutions? Does the idea of constituent power or pouvoir constituant of “We the People” still have any meaning or relevance in light of the seeming ubiquity of foreign influence both during and after the adoption of a national constitution? How should we conceptualize the nature and form of the locals’ coordination with foreign participants and their subsequent ‘ownership’ of the constitution building process? It may be that we need new answers to the old question of how to understand popular sovereignty in relation to the project of constitutionalism.