An existing constitution, a law, or a peace agreement may set the general course of the process. But detailed rules will be needed about procedures for the various bodies. They will cover, in particular, public participation, management (including financial management), and decision-making.
Rules will be needed especially for a constituent assembly; even the regular legislature may need some special rules for making a constitution, different from its regular rules of procedure. Smaller bodies, such as constitutional commissions, may not have such complex sets of rules, but will still need rules on matters such as how it makes decisions, finances, and how many members must be present to make up a quorum for a meeting.
Codes of conduct will also likely be drawn up: these may not be “laws” in the sense that breaking them is a crime, but they set down ideas of “proper” conduct—and members or staff who disobey may be liable to removal or disciplinary action.
People actively involved in a constitution-making process may have little experience of similar activities. Rules need to be clear and detailed to prevent confusion.
Who makes the rules?
If there is resistance to the constitution-making process on the part of government and the existing ruling groups, it may be wise to try to insist that the reviewing bodies can make their own rules (within reasonable limits). But existing rules of financial probity, covering audits, procurement, and so on, may be appropriately applied to the constitution-making bodies— which should not be held to a lower standard than are existing governmental bodies. For a body that is set up under an existing law (such as a committee of inquiry), there will probably be well-established rules of procedure, though they may not fit this sort of task perfectly.
It is common for a constituent assembly to be given power to adopt its own rules. This reflects the common practice for legislatures; the right to adopt their own rules was a victory for parliaments asserting themselves against monarchies. The dilemma is that a truly democratic constituent assembly (more democratic than the country’s legislature perhaps) ought to decide on its rules, but may include many people who have little experience. The constitution-making road map could set out guidelines for the rules, but this does not guarantee that the rules will be simple and clear.
Adopting the rules can be time-consuming. In Bolivia it took five months to decide on the rules of procedure. In Timor-Leste, where the Constituent Assembly had ninety days to adopt a constitution, the first two to three weeks were taken up by the adoption of rules of procedure. The issue that has often delayed rule-adoption processes (including Bolivia’s) has been that of the decision-making majority: should adoption of the constitution require a two-thirds, a three- quarters, or even a simple majority? (In some countries, including Nepal, this percentage is prescribed by the existing constitution or legal system.)
If the constituent assembly is to make its own rules, it will probably do so through a committee; it is not realistic for a large body to draft rules. Where political parties are dominant, they will probably insist on dominating the rule-making committee, and also on proportionate representation of parties on that committee. But if possible, the committee should include representatives from various groups in the country, and it should not comprise only lawyers and people with parliamentary experience. This way, all members can have a fair chance to participate.
In many countries it is possible for a body set up by law to be given the power to make rules that have the force of law—called “subordinate” or “subsidiary” legislation in some systems. The steering committee of a constituent assembly or the chair of a constitutional commission might be given such a power. In many countries such rules would have to be reported to the legislature, which might have the power to negate them by a resolution.
When a process is set up by a peace agreement or a roundtable, it is unlikely that the same body will prescribe detailed rules for any of the organs of the process. But if a legislature designs the process, it may also design the rules.
If a decision-making body is to make its own rules, clearly these cannot be prepared in advance. Some provisional rules will be necessary to cover the period until the final rules are ready. This also means that members cannot know the rules well in advance. In Afghanistan it has been suggested that late release of rules for the Emergency Loya Jirga that adopted a provisional constitutional arrangement created problems.
Box 28. Who makes the rules?
In Bolivia, India, and Timor-Leste, the constituent assembly made its own rules of procedure.
In Kenya the rules for the national constitutional conference were prepared, as required by the Constitution of Kenya Review Act, by the commission that prepared the draft constitution and provided the constituent assembly’s secretariat.
In the revived Kenya process, the committee of experts made its own rules, except that the quorum was prescribed by law, as was the obligation to work for consensus, and failing that, to decide by a two-thirds majority.
Sources for rules
For a small body, rules about meetings can be based on common practices concerning meetings—the role of the chair, how to indicate a wish to speak, time limits, quorums, voting procedures, and so on.
Rules about finance can be usually based on those used for other public bodies, such as audit and procurement rules, even if these are not directly applicable.
Many constitution-making bodies will need rules and procedures that address processes not commonly addressed by public bodies, such as civic education.
In a large body such as a constituent assembly, members who are used to parliamentary procedure will often assume that the rules should be based on the rules of parliament. (This is how Bangladesh managed to adopt its rules in two days.) But there are good reasons why this may not be appropriate; a constituent assembly is different from an ordinary legislature in many ways, as set out in part 3.1.2. A constitution-making body typically must build consensus and the parliamentary rules may not be well suited for this task.
What are rules for?
The functions of rules about finance and about procedures for civic education and the like are perhaps fairly obvious. But it may be helpful to reflect briefly on the functions of rules that concern discussion and decision-making. It is suggested that their functions include ensuring that:
- consensus is built where appropriate;
- decisions are made—and are made neither too hastily nor in too protracted a manner;
- it is clear what has been decided, and why;
- decisions are made on the basis of the best available input in terms of factual analysis and reasoning;
- irrelevant matters are not taken into account;
- all members are able to participate;
- each group within the assembly or the country is able to participate (this may be a particularly delicate issue when a country is made up of different elements coming together—as was the case in India, where the constitutional adviser looked at the procedures that had been used in the Australia, Canada and the United States to ensure participation of their provinces or states);
- all members feel that they have had a fair opportunity;
- the dignity of the institution is upheld;
- the dignity of members is protected;
- publicity is achieved when appropriate, and secrecy maintained when appropriate;
- a good record can be and is kept of decisions and processes;
- outside participation is possible when appropriate; and
- irrelevant pressures are excluded.