Courts may also be important in constitution-making. Sometimes a role for the courts is designed in the process, or even required; sometimes that role is an anticipated possibility, and sometimes courts play an unexpected role. It is more likely that a subnational constitution willbe challenged. It is not a supreme law, but must be compatible with the national constitution— and national constitutions sometimes state this specifically.
Courts with integral roles in constitution-making
Occasionally a constitution-making process cannot be completed without some involvement from the courts. The role of courts in certifying compliance with certain principles as to content, and perhaps procedural requirements, has been discussed in part 2.1.8.
In some countries, courts have a role in elections; they sometimes serve as the electoral management body, and sometimes have the function of certifying compliance with the law. That role might include certifying the result of a referendum on the constitution, as in Burundi . This sort of role for the courts is more common in the civil law tradition.
Courts with the possibility of blocking change
It is somewhat more likely that the courts will be invited to declare that a constitutional change is improper than that their positive approval will be required. And it is also more likely that amendments to a constitution will be challenged on the basis of procedural failures than that the substance cannot be validly introduced.
A constitution or peace agreement may specify certain principles on content of the new constitution without requiring a court, or any other body, to certify that the requirements have been satisfied. The only way to use such a provision may be to bring a court challenge to the document. A few such cases have gone to the German constitutional court, including one arguing that an amendment to agree to the creation of the European parliament was unconstitutional. Various constitutions say that certain parts may not be amended at all—and a challenge may be mounted to amendment on that ground. The Turkish constitutional court has ruled that an amendment to say that people’s rights to higher education could not be restricted “because of their apparel” was invalid because it infringed the unamendable secularism provision. The background was the intention to permit women wearing the “Islamic headscarf” to attend universities.
The South African interim constitution provided that one-fifth of the constitutional assembly could refer any proposed draft provision to the constitutional court for a ruling on whether it complied with the thirty-four principles, rather than waiting for the complete draft constitution. No such challenge was made.
There is no limit to amendment specified in the constitution of India, but the Supreme Court created the principle of the basic structure of the constitution, according to which certain features may not be changed. It has spelled out what these are in later cases, but in no case so far has it held an amendment ineffective. Courts in a few other countries have adopted a similar approach, including Bangladesh, and in one case Sierra Leone.
Courts and referendums
Various constitutions permit courts to block constitutional change because they can, or must, rule on the constitutionality of a referendum. This is true of the Turkish constitution, and the Albanian one. In the latter the court must review the constitutionality of issues put to referendum within sixty days—including whether the issues relate to constitutional provisions that cannot be changed.
In 1992 the Russian constitutional court declared that a referendum planned in Tatarstan (one of the Russian republics) was unconstitutional, because it essentially declared Tatarstan to be sovereign and a subject of international law. The Tatars ignored the court and held their referendum, but later renegotiated their relationship with Russia.
Special roles in implementation
In addition to the role played in most legal systems by the courts in implementing the constitution—by adjudicating on violations of rights and on the constitutionality of laws and acts of the authorities—some more specific roles have been given to the courts under constitutions. In countries where much of the law is made by judges (essentially the countries of the English common-law tradition), the courts may be directed to develop the law in a way that furthers constitutional objectives. (The South African constitution is an example.) The Kenyan constitution  also provides for the possibility of the chief justice advising the president that laws have not been enacted as the implementation provisions require, and that the parliament should be dissolved and elections for a fresh parliament held; in that case the president would have no choice but to dissolve the parliament.
The risks of court challenges holding up constitution-making may be considerable where the process is controversial and political litigation is common. In Nepal, there have been court challenges to the interim constitution. In Kenya there have been many court challenges—some undoubtedly politically motivated, essentially designed to sabotage the process. This is not true of all instances, though; in one the court held that prisoners were entitled to vote in the referendum on the constitution.
Substantive challenges raise other issues. The courts may rightly view themselves as the guarantors of the constitution. But some existing constitutions are not genuine products of the people’s will, and there is a risk that the courts may stand in the way of that will being reflected in a new constitution.
In a country in serious need of constitutional overhaul, the courts may not be independent—of government, politicians, or business. Even if they are, assessing the contents, as opposed to the process, of constitution-making may require skills that the existing courts do not possess, because reliance on courts for constitutionalism has been limited.
In most countries there is the possibility on the one hand of “judicial activism” and the other of excessive “judicial restraint,” both of which may be politically motivated.
The Turkish “headscarf” decision has been roundly criticized as violating human rights, especially those of women. It takes a broad view of the implications of secularism, and is probably unconstitutional because it deals with the substance of the amendment, while the constitution says constitutional changes can be challenged only because when specified procedural irregularities have occurred. The constitutional court continues this activist approach, requiring the government to change some of the 2010 constitutional amendments—those relating to appointment to the court itself and another body that appoints senior judges.
The constitutional court of Kyrgyzstan in 2007 declared unconstitutional various amendments to the constitution hastily passed in response to popular demand. When the dictator Bakiyev was finally ousted in 2010, the interim government, under a new constitution, simply scrapped the constitutional court, in reaction against its earlier activism.
On the other hand, when the constitutional court in Albania “lost the opposition’s complaint” about a referendum and did not use its power to take a case about it on its own motion, there was suspicion that this decision was politically driven. (Some judges resigned in protest.) Otherwise, restraint may reflect division within the court—or a genuine reluctance to get involved in political matters.
Even discussion about the role of the courts is often politically charged. Allowing the courts to interfere with constitution-making is obviously controversial, even if the courts can be trusted to be neutral politically. They are impinging on the most fundamental act of people’s sovereignty: determining how they will be governed.
Fear of court challenges has led the designers of some processes to create special courts. The South African constitutional court was designed to bring in a new style of judging; it was not created only for the purposes of the process. In Nepal the interim constitution provided for a special court merely to hear cases about elections to the constituent assembly. In Kenya  a special court was created to hear cases about the process with both Kenyan and foreign judges. One reason for this was probably the expectation that the new constitution would include a provision involving the removal or at least the scrutiny of all existing judges, who had been subject to much criticism on the basis of both their competence and their independence.
A few points to bear in mind about designing a role for courts in constitution-making:
- When designing a specific role, such as certification, for the courts, it is important to be sure why this is being done—what will be achieved?
- Can the courts be trusted, and will their decisions have broad legitimacy?
- If a special court is created, it may be necessary to amend the current constitution to legitimize taking jurisdiction away from the regular courts.
- Strict time limits should be imposed to prevent litigation holding up the process indefinitely.
- The courts should not be expected to sort out woolly thinking on the part of the designers of the constitution-making process about the way it should go.
- The courts themselves should be prepared to recognize the limits of their own powers and competencies, act with restraint, and not thwart the will of the people unless that will clearly violates human rights.
A final point: a provision in a constitution that says “This constitution may not be challenged in court” contains a logical contradiction, namely that if the challenge is to the legal validity of the constitution it is a challenge also to the “no challenge” provision. A court may rationally decide that such a provision is ineffective.