Constitution-making includes both the process for making a new constitution or amending an existing constitution as well as the substantive decisions about the design, form and content of the new or amended constitution.
Comparative experience demonstrates a range of processes to draft and adopt a new constitution. The choice is often informed by the context and constitutional tradition of the polity, the desire for public involvement in constitution-making and considerations of legitimacy. International involvement can also influence these choices. In a small but significant number of cases, courts have played a key role in the otherwise political processes of constitution-making.
Questions of constitutional design cover decisions about:
- the form of the state, covering unitary, federal or decentralised arrangements;
- the form of government, covering the institutions of government and separation of powers; and
- the relationship between the people and the state, including constitutional rights and mechanisms to recognise and protect Indigenous peoples and minority groups.
Constitutions are not produced in isolation. Rather, they draw on the form, texts and experiences of other constitutional systems of the world. As such, constitution-making is an application of comparative constitutional law. Comparative insights into both the substance of constitutional arrangements and the process of constitution-making are critical to theoretical understandings of constitution-making. A nuanced and sensitive understanding of the benefits and limitations of comparative experience is also important for practitioners and international advisors engaged in constitution-making.
The Network’s work in this area seeks to assist practitioners to understand the range of options available and to evaluate them in light of the specific context in which they work. At a theoretical level, we seek to develop an explanation for the role of comparativism in constitutional transformation.
- To what extent should the concerns and methodologies of comparative constitutional law guide external advice about process and substance in constitution-making? Cheryl Saunders’ research considers the implications of transnational constitutional activity on constitution making. This research is situated within broader debates about the extent to which the constitutional systems of the world are converging or whether there are still divergences between constitutional systems that matter. It suggests that if the premise of continuing diversity and the importance of context is accepted, there is value in bringing the knowledge and methods of comparative constitutional law to bear on both the process and substance of constitution making. This research in progress was presented at a conference on ‘Global Constitutional Discourse and Transnational Constitutional Activity’ in Venice on 7 December 2016, organised by the Venice Commission, International IDEA and the International Association of Constitutional Law; and informs a project in relation to international involvement in constitution-making, for the Elgar Handbook on Comparative Constitution-making, edited by David Landau and Hanna Lerner.
- What processes are followed for constitutional transition in the face of territorial cleavages? This research is undertaken by Cheryl Saunders as part of a wider project on constitutional transition and territorial cleavages, jointly conducted by International IDEA and the Center for Constitutional Transition. The paper presently is in draft form and will be published in an edited collection in due course.
- To what extent should the concerns and methodologies of comparative constitutional law guide external advice about process and substance in constitution-making? This paper will be delivered by Cheryl Saunders to a conference on ‘Global Constitutional Discourse and Transnational Constitutional Activity’ in Venice on 7 December 2016. The conference is organised by the Venice Commission, International IDEA and the International Association of Constitutional Law. The work will overlap with another project in relation to International Involvement in Constitution-making, for the Elgar Handbook on Comparative Constitution-making, edited by David Landau and Hanna Lerner. The work is in progress.
- What role do existing institutions play in constitutional transformations? Will Partlett’s research explores the institutional dimensions of constitution-making and the role that courts, constitution-making assemblies, and other specialist or existing institutions play in constitutional transformations. Recent publications have considered the prospects for courts to play a positive role in regulating the politics of constitution-making and the importance for institutional design of not just enhancing public participation but also ensuring elite compromise in constitution-making. His work has also examined the ways in which old constitutions can be “restored” and then used as the basis for constitutional drafting.
- What distinguishes the constitutional role and functions of Supreme/apex and Constitutional Courts? Cheryl Saunders delivered a key note address on this subject at the Asian Forum of Constitutional Law in Singapore in 2015, for publication in a volume to be edited by Albert Chen and Andrew Harding. The chapter is now in draft form. The work will also form the foundation for a contribution to the Cambridge Companion to Comparative Constitutional Law, edited by Roger Masterman and Robert Schutze.
- Regional studies of constitution building: Constitution Transformation Network members assess constitution building from a regional perspective in International IDEA’s Annual Review of Constitution Building 2015. Anna Dziedzic and Cheryl Saunders provide an update on constitution building in the Pacific which examines some of the distinctive features and shared challenges of constitution building in small island states; while Will Partlett draws on his research into the unique approaches to constitution-making in Russia and former Soviet republics in his update on constitution building in Ukraine and Armenia.
International IDEA’s Annual Review of Constitution-Building Processes 2015 is available here.
Women and Constitution Building in the Pacific: Anna Dziedzic from the Constitution Transformation Network facilitated a panel discussion at the inaugural Pacific Feminist Forum, held in Suva Fiji on 28-30 November 2016. Three panellists and participants from across the Pacific discussed the critical contributions that women and women’s organisations are making to current constitution building processes in the Pacific, the challenges they face, and strategies for supporting women to build constitutions that protect and promote women and women’s rights.
Forum on Constitution Building in States with Territorially Based Societal Conflict in Asia and the Pacific was held in Melbourne on 18-19 August 2016 as a joint initiative of the Constitution Transformation Network and International IDEA. The Forum brought together scholars and practitioners from across Asia and the Pacific to examine both substantive constitutional solutions to territorially based conflict and the constitution building processes that might be followed to put them in place.
Constitution Making – Melbourne Law Masters: Christina Murray and Cheryl Saunders teach an intensive subject on constitution making in the Melbourne Law Masters. The subject is taught regularly in the MLM every second year and was last held on 18-24 May 2016.
What's Wrong with Venezuela's Constituent Assembly?
William Partlett, Pursuit (8 August 2017)
Will Partlett argues, the installation of a new Constituent Assembly in Venezuela may, on the surface, appear democratic but is anything but.
The Judiciary and Constitutional Transitions
Tom Gerald Daly, The Judiciary and Constitutional Transitions(International IDEA, 2016)
Judiciaries have become increasingly important actors in constitution-making and democracy-building where states seek to strengthen democracy or transition from undemocratic to democratic rule. This Report examines the role that judiciaries have played in past and present constitutional transitions, with a particular focus on Chile, Colombia, Egypt, Hungary, India, Indonesia, Kenya, Libya, Nepal, South Africa, South Sudan, Tunisia and Zimbabwe. The Report is framed around three critical thematic inquiries: how a new constitution can transform the judiciary; strategic behaviour by the judiciary as an actor in constitutional transitions; and the judiciary as an engine for social justice. The report draws on a workshop jointly hosted by the International Institute for Democracy and Electoral Assistance (International IDEA) and the International Development Law Organization (IDLO), which provided a forum for policymakers, judges and scholars to share experiences between jurisdictions and to generate dialogue on common and distinct challenges, successes, and lessons learned.
The report is available through International IDEA.
Reforming centralism and supervision in Armenia and Ukraine
William Partlett, ‘Reforming centralism and supervision in Armenia and Ukraine’ in International IDEA, Annual Review of Constitution-Building Processes 2015 (2016)
Will Partlett draws on his research into the unique approaches to constitution-making in Russia and Eurasian former Soviet republics to reflect on recent constitution building processes in Ukraine and Armenia.
Constitution Building in the Pacific in 2015
Anna Dziedzic and Cheryl Saunders, ‘Constitution Building in the Pacific in 2015’ in International IDEA, Annual Review of Constitution-Building Processes 2015 (2016)
Anna Dziedzic and Cheryl Saunders provide an update on constitution building in the Pacific, pre-constitution making processes in Bougainville and New Caledonia; current constitution making in Marshall Islands, Solomon Islands and Tuvalu; and constitutional implementation in Fiji and Tonga. The chapter examines how some of the distinctive characteristics of Pacific polities, including geography, demography and partial statehood, affect constitution building in the Pacific.http://www.idea.int/publications/catalogue/annual-review-constitution-building-processes-2015
Constitution-making in Myanmar: Insights from World Experience
Anna Dziedzic and Cheryl Saunders, ‘Constitution-making in Myanmar: Insights from World Experience’ in Melissa Crouch and Tim Lindsey (eds), Law, Society and Transition in Myanmar (Hart Publishing, 2014) 159-180.
Anna Dziedzic and Cheryl Saunders examine how world experience in constitution making might be used to inform the next stages of constitutional development in Myanmar. The paper does not suggest that there is a particular single path that Myanmar must follow, as these are decisions that must be made within Myanmar in a way that is responsive to its context and the views of its people. World experience is useful in identifying and addressing four key issues likely to be relevant in Myanmar: constitution making in the context of transition to democracy; inclusive constitution-making processes in the context of religious and ethnic divisions; the choice of constitution-making procedures; and how to take best advantage of international assistance in constitution making.
The Legality of Liberal Revolution
William Partlett, The Legality of Liberal Revolution, 38 Review of Central & East European Law 5 (2013)
Will Partlett critically examines the idea of a transformative revolutionary ‘moment’ when the people unite to throw off their shackles and establish a democratic constitution. These founding moments are often characterised as extraordinary periods of unconstrained politics, where the sovereign people transcend the formal borders of institutionalized politics and legality to draft the constitutional boundaries of their new liberal order. This paper uses the example of Russia’s constitutional foundations in 1993 to consider whether this conception of the constitution-making moment in the liberal revolutionary paradigm is desirable in all contexts.
The Dangers of Popular Constitution-Making
William Partlett, The Dangers of Popular Constitution-Making, 38 Brooklyn Journal of International Law 193 (2012)
Will Partlett’s article explores a critical question at the intersection of constitutional and democratic theory: Is the process of constitutional drafting and ratification important in determining whether a constitution will serve as a constraint on future government activity? Using Post-Soviet constitutional development as an example, the paper examines some of the dangers of popular constitution-making and argues for greater recognition of the essential role that ordinary and pre-existing political institutions and rules – even ones tainted by association with a prior regime – can play in the construction of legitimate constitutions.
The Nature of a Constituent Assembly
Cheryl Saunders, ‘The Nature of a Constituent Assembly’, Suva, Fiji, 5 December 2012.
Constitution-making in the 21st century
Cheryl Saunders, ‘Constitution-making in the 21st century’ (2012) 4 International Review of Law
Constitutions have been made or changed in major ways in more than half the countries of the world in recent decades. In this article, Cheryl Saunders deals with contemporary approaches to constitution-making, across three key phases: setting the agenda, in terms of both substance and process; design, drafting and approval; and implementation. She argues that, while all constitution-making processes are different, there are some distinctive features of constitution-making in the 21st century that include popular participation, the need to build trust, internationalisation in its various forms and the importance of process. The article canvasses examples of constitution-making practices that have been or are likely to be influential. It identifies and briefly explores some of the key tensions in constitution-making between, for example, international involvement and domestic ownership of a Constitution and public participation and leadership.
Reforming the Fundamental Law: Constitutional Change and Public Participation
Cheryl Saunders, ‘Reforming the Fundamental Law: Constitutional Change and Public Participation’ in RN Trivedi (ed) World of all Human Rights: A Festschrift for Soli Sorabjee (New Delhi: Universal, 2010), 169-186.
Issues relating to community engagement in constitution-making and amendment have come to the fore in recent decades, driven by practical considerations as well as the symbolic explanation for constitutional legitimacy as derived from ‘the people’. This essay outlines, in a systematic way, the range of possibilities for public participation at the different stages of the process of constitutional change and examines the various techniques used to engage the public in these processes including representation, community consultation, popular participation, engagement with civil society and education. The discussion of these issues draws on the now substantial world experience in addressing the problem of engaging the community in constitution-making and constitutional change, providing examples from Australia, South Africa, Fiji, New Zealand, Kenya and other nations.
Agendas of Constitutional Decentralization in Ukraine
William Partlett, Agendas of Constitutional Decentralization in Ukraine, Constitution Net (July 23, 2015)
The Meanings of Concurrency
Anna Dziedzic and Cheryl Saunders, ‘The Meanings of Concurrency’ in Nico Steytler (ed), Concurrent Powers in Federal Systems (2015)
Concurrency is a feature in the organisation of legislative powers in most federal systems. It arises when legislative powers are conferred in a way that enables both the central and regional spheres of government to legislate on the same subject matter in certain conditions. This paper demonstrates that there are significant variations amongst federal systems in the way in which concurrency is used and applied with respect to the design of constitutional provisions, the scope of authority that concurrent power confers, the significance of an exercise of concurrent power by both spheres of government at the same time, and the relevance (if any) of concurrency to the authority of regional governments to administer central laws. The findings are significant for comparative constitutional method, insofar as they demonstrate that a concept that often is assumed to have shared meaning across federal type systems, in fact is both understood and used in different ways. The findings have practical significance as well, not least for the design of federal constitutions, most of which employ the concept of concurrency in some way.
Form of Government: Evaluating the Principal Options
Cheryl Saunders, ‘Form of Government: Evaluating the Principal Options’ in Bipin Adhikari (ed), Nepal: Design Options for the New Constitution, (Kathmandu: Nepal Constitution Foundation, 2010) 30-53.