Constitutional transformation continues long after the formal adoption of a new constitution or amendments. It includes periods of constitutional implementation as well as continued change through formal amendment processes, judicial interpretation or informal means.
Constitutional implementation is the means by which the text of the constitution is given effect in practice. It includes establishing new institutions, enacting new legislation and appointing constitutional officeholders. It also includes the successful transfer of government power, generally measured by the conduct of free and fair elections. It might also involve building a new constitutional, legal or societal culture as part of state-building and nation-building. Constitutional implementation is increasingly regarded as a distinctive stage of constitution-making. In some instances, the process of constitutional implementation is formalised in the constitution and monitored and enforced by an independent commission or court.
Constitutional implementation also includes the interpretation of the constitutional text by courts, legislatures and executives. Constitutional interpretation is itself a form of constitutional transformation and has the potential to significantly change the meaning and understanding of the Constitution. New constitutional rules may also emerge as constitutional conventions stemming from practice.
Our work in this theme seeks to better understand the dynamics of constitutional implementation as an important but understudied aspect of constitutional transformation.
Cheryl Saunders, ‘Implementing the Constitution in Fiji: Challenges and Opportunities’, a Public Lecture hosted by University of the South Pacific, Citizens Constitutional Forum and Fiji Women’s Rights Movement, Suva, 7 October 2015.
Forum on Constitution Building in States with Territorially Based Societal Conflict in Asia and the Pacific, Melbourne 18-19 August. This joint initiative of the Constitution Transformation Network and International IDEA includes a session devoted to examining the implementation of new constitutional arrangements adopted to address societal conflict. It considers the challenges involved in establishing new institutions and arrangements for power sharing, and for managing the risks of renewed conflict under the new constitution.
Courts as Democracy-builders in Contemporary Thought
Tom Gerald Daly
Tom Gerald Daly, ‘The Alchemists: Courts as Democracy-Builders in Contemporary Thought’ (2017) 6(1) Global Constitutionalism 101
In his contribution to a special collection on constitution-making and political settlements in times of transition, Tom Daly asks whether court really can ‘build’ democracy in states emerging from undemocratic rule. There is an increasing tendency in post-authoritarian states to place significant faith in courts as guardians of a new democracy. Courts are expected to breathe life into the paper promises of the constitutional text and also police political adherence to emerging transnational norms of democratic governance. Beyond the state, regional human rights courts have also been cast as democracy-builders, acting as a support, backup mechanism, and even surrogate for domestic courts. Yet, despite this ‘court obsession’, our understanding of courts as democracy-builders remains critically underdeveloped. This article argues that while it has been assumed that courts have a central role to play in democracy-building, this assumption is based on rather slim evidence and undermined by yawning gaps in existing research.
From Paper to Lived Reality: Gender-responsive Constitutional Implementation
Anna Dziedzic, From Paper to Lived Reality: Gender-responsive Constitutional Implementation (International IDEA: 2017)
A constitutional text that enshrines and protects gender equality and women’s rights is a significant achievement. However, a new constitutional text marks the beginning, not the end, of the road to achieving substantive gender equality. The constitutional provisions and the principles on which they are based must be put into practice through the processes of constitutional implementation. This practice-oriented Discussion Paper explores the dynamics and processes of constitutional implementation and the particular challenges of gender-responsive constitutional implementation. Drawing on a workshop convened by International IDEA in Kathmandu, Nepal, on 26–28 February 2016, the Discussion Paper considers the role of five actors in constitutional implementation – the legislature, executive, judiciary, independent institutions and civil society – drawing on the experiences of eight countries in implementing women’s rights to equal political participation and the right to health.
The report is available through International IDEA: