Why record keeping?
A constitution-making process creates an astonishing quantity of words: public and other submissions, deliberations of commissions, committees, and assemblies, and, of course, the words of the constitution, as well as various drafts. Careful planning is necessary for keeping records of these words (and for deciding which words are to be discarded and which retained). Records may need to be kept for a variety of purposes:
- Records of what people say to the constitution-making bodies, whether orally or in written form; important because public participation is meaningless if there is no way of recording it and ensuring that it can be used in the constitution-making process; also because the people want to know that what they say is being treated with respect, even if they realize that not everyone’s point of view can have an impact on the final document.
- Records of the deliberations of the bodies responsible for making the constitution; important because in the future lawyers and courts may come back to the records for assistance in interpreting the constitution, and because there are likely to be disagreements during the constitution-making process about what was said, and these can be resolved only by referring to the records.
- Records of the actual decisions made; important for obvious reasons—this is the immediate basis for the constitution; but also difficult because in the heat of debate, unless there is firm leadership and impeccable note-taking, it may not be possible to reconstruct later what was decided, especially as some people will have vested interests in distorting what was decided.
- The developing text of the final document: this must be kept in reliable custody to avoid the risk of its being lost or even tampered with.
These points concern the integrity of the actual process. In addition, making a constitution is an important national event, and future historians ought to be able to study its various stages.
In many legal systems it is permissible to look at the record of lawmaking bodies as a guide to interpretation. Such reference to sources has become much more prevalent in recent years, and is perhaps particularly common in constitutional interpretation. Many courts will permit this only if the records are publicly available, because any other procedure would be unfair. To make this possible, the proceedings of many constitution-making processes have been published. An early example is the verbatim record of the debates in the constituent assembly of India—similar to the verbatim reports of parliamentary debates, often known as Hansard in common-law systems.
Issues in record keeping
The steps that need to be taken to ensure proper record keeping can include:
- acquiring the necessary equipment and staff in advance to record oral submissions;
- establishing good filing systems in advance for submissions and other documentation;
- setting up a good system for analyzing submissions and communicating them to the decision- making bodies (this is looked at in some detail in part 2.2.4);
- supporting each committee with a secretarial staff, including someone with knowledge of the substance of the process to make notes and keep formal minutes of decisions;
- having available the staff and equipment necessary to record the deliberations of decision- making bodies and their committees, including transcribing the records and (ideally) publishing them. Whether a verbatim record of committee meetings will have to be determined, but a full record, like that normally kept of the proceedings of legislatures, should be kept of the meetings of a constituent assembly or similar body; and
- arranging for full records to be kept after the constitution-making process is completed. One copy (indeed, perhaps originals, for which this concept makes sense) should be deposited in the national archives, but if there is any rule in the particular country that records in the archives are not open for public use until a number of years have passed, that rule should be waived for the constitution-making records.
Among the factors that should be taken into account are the risks of records being destroyed (by vermin or damp in the case of paper; by fading in the case of photocopies) or lost. National archives are not necessarily immune from these problems (in the 1990s the national archives of Vanuatu were seriously damaged by a typhoon), so more than one depository should be identified. Reliance on modern technology may have its own hazards; it may be superseded, and websites may cease to be maintained. University libraries may be less efficient than one would wish. (Copies of important documents donated to some university libraries seem to have disappeared.)
It would be wise to have several copies in different places. It may indeed be wise to keep copies of documents in more than one country.
Maintaining security of documents connected with the process can be an important during a process, not least because of the dangers of sensitive issues being misunderstood or deliberately manipulated by opponents of the process, or simply by people seeking their own political advancement through a controversy arising from the process. For example, at a very early stage of one process, a foreign adviser produced a draft document intended to be seen only by the chair of the process, generating some ideas about structures. But a member of the constitution- making body stole the document, removed the cover sheet that explained its purpose, and passed it on to political interests who wanted to stop the process and who used it in attempts to discredit the process. While as much transparency as possible in a process is both desirable in principle and makes the burden of maintaining security lighter, this example illustrates the point that there are likely to be stages in a process and some categories of documents generated where secrecy will be required. In such instances, it needs to be made clear who has rights of access to any restricted document. Measures need to be put in place to ensure that no one else has that access.
More on records and record keeping
As noted, some countries have contemplated establishing special archives—indeed, museums— of constitution-making. The verbatim records of the constituent assembly debates in India were published, and they are available on the Internet: https://parliamentofindia.nic.in/ls/debates/debates.htm.
There is also a useful search engine at:
Many modern constitution-review processes have websites, and they may even have full records on these. However, websites are ephemeral; there is no guarantee that they will be maintained after the review processes are completed. For legal purposes it may be difficult to persuade a court to accept a document taken from a website.
A constitution itself may contain provisions about interpretation that have implications for record keeping. The Papua New Guinea constitution says:
(1) The official records of debates and of votes and proceedings–
(a) in the pre-independence House of Assembly on the report of the Constitutional Planning Committee; and
(b) in the Constituent Assembly on the draft of this Constitution, together with that report and any other documents or papers tabled for the purposes of or in connection with those debates, may be used, so far as they are relevant, as aids to interpretation where any question relating to the interpretation or application of any provision of a Constitutional Law arises.
An act of parliament provides how these records are to be used in court. The records of the constituent assembly were published to enable them to be referred to in this way.