This handbook draws on experiences of constitution-making in all parts of the world. Those experiences show that there is no single correct approach to constitution-making. Furthermore, unlike elections or other tasks involved in creating a democracy, constitution-making does not follow neatly prescribed stages. A wide range of tasks can be carried out as part of a constitution- making process, and in designing and developing a process, many choices are made that result in major differences between processes. Similarly, there are many choices that can be made about the institutions or procedures used to carry out any particular task. As a result, there was no point in organizing this handbook in a linear fashion, starting with a particular task that should ideally be carried out by a specific institution. Instead we have organized the main discussion (in parts 2 and 3) around, first, the tasks, and second, the institutions and procedures that can be used to carry out those tasks. They are the common elements of a constitution-making process from which to choose when designing a process. Many factors can influence the choices made when designing a particular process. Some institutions are commonly used in countries with particular legal and political traditions but rarely used elsewhere. At the same time, ideas about both constitution-making and the contents of constitutions that originate in one place are often copied or modified in other places. As a result, even an institution that might at first sight seem quite exotic can be of interest in other places. For that reason alone we need to be comprehensive in our coverage of the wide variety of experiences of constitution-making processes.
Even if institutions do not always travel well between countries, the tasks that need to be performed as part of a constitution-making process tend to be similar. For example, it is usually necessary for constitution-makers to do most of the following:
- think through and research the issues facing the country;
- consider the choices of constitutional arrangements that will best respond to the issues;
- educate and consult the people about the issues and the choices;
- negotiate among major political groups and those with powers of decision-making about the constitutional choices;
- administer and manage the constitution-making process;
- draft, debate, and adopt a new constitutional document; and
- make arrangements for implementation of the new constitution.
Although some of the main tasks involved in constitution-making have to be carried out in nearly any process, the institutions used to carry them out tend to be quite different from country to country. It is in part for this reason that we have separated the discussion of tasks from the discussion of the institutions and procedures used to carry them out. Additionally, certain groups that often play key roles in a process (e.g., media, civil society, government departments, political parties, and the international community) are in many ways outside the process, so we discuss them separately from tasks and institutions.
We must emphasize that we are not recommending that any particular set of tasks should always be undertaken, or that any particular institutions should be used to carry them out. Instead, we offer a wide menu of options that can be considered by anyone designing a constitution-making process (or even gradually developing one in response to ever-changing circumstances).
We have divided the handbook into four main parts:
Part 1 is an introduction to constitution-making processes. It outlines the key issues about the roles of constitutions (the main reasons why they are made) and some of the challenges, dilemmas, and opportunities involved in constitution-making, especially in situations of conflict.
Part 2 discusses common tasks carried out in constitution-making processes. Although we seek to impose a degree of order through the sequence of our discussion of these tasks, they cannot be dealt with entirely in chronological order; constitution-making processes do not all do the same things, nor do they do them in the same order, and many tasks are done simultaneously or repeatedly.
Part 3 is concerned with the institutions and procedures commonly established to carry out the tasks. These include commissions, constituent assemblies, and national conferences, as well as bodies created for other purposes but that may be involved in the constitution-making process by necessity or in exceptional circumstances—including a parliament, the secretariat of a parliament, the courts, and the election-management authorities. We have also included here what we refer to as “procedures,” such as referendums.
Part 4 provides guidance for external actors in the process, who may act on their own initiative or be linked with the official process. This section focuses on the role of civil society and the media in activities such as starting the process, voting, civic education, public consultation, making submissions, research, lobbying, and monitoring the process. It also discusses the common pitfalls for constitution-making processes when the international community has taken a leading role, either officially or unofficially. It concludes with an observation about the lack of guidance in this area for international constitutional-assistance actors and some brief practical tips for improving international engagement in these situations.
A series of appendices provides case studies, a glossary of terms as specifically used in this handbook, examples of codes of conduct, references, and suggested readings. Appendix A introduces the reader to a range of constitution-making processes. Short case studies are included to help the reader in a number of ways. Although there are numerous examples of tasks, institutions, devices, and dilemmas included in the main text, we are conscious that these are not organized in a way that provides a reader with a strong sense or overview of how institutions, processes, and tasks fit together in a process. The case studies illustrate how these various elements have been combined in actual processes.
Each case study provides an overview of why a new constitution was prepared, how long the process took, what institutions and processes (including referendums) were involved, whether it was broadly a participatory process, how much international involvement took place, and whether the process led to a constitution that was adopted. The cases were chosen to be geographically balanced and to illustrate the diversity of constitutional objectives, circumstances, tasks, institutions, involvement of external groups, and outcomes. In appendix D the reader will find references to other works, in particular case studies that go more in depth to particular processes.
Some of the country examples that appear in the body of the handbook to illustrate particular points refer to the case studies in appendix A. By referring to the case study from which the example was taken, the reader will be able to understand the overall structure of the process in that country.
We have designed this handbook to be used in a flexible way depending on the needs of the reader. Some people might read it from beginning to end. Others are more likely to be interested in certain aspects, or will focus on particular sections as they become relevant to them. Although we have tried to make each section as self-contained as possible, we do recommend that all readers begin with part 1. It is essential to a better understanding of key aspects and challenges that are referred to in the rest of the handbook.
Because the book cannot be organized in tidy stages, we include many cross-references. These will help the reader move readily between widely separated parts of the handbook that are related. For example, there will be a cross-reference from a discussion of the tasks of managing a process (in part 1) to an exploration of the bodies that manage processes (in part 3), and from a discussion of referendums to one on the task of adopting a constitution and one on dealing with a divisive issue (all discussed in part 2). Cross-references are provided to case studies in appendix A and to material in other appendices, which include sample codes of conduct and a glossary of the terms used by constitution-makers and those who write about them.
Throughout the text, a year that appears in square brackets following the name of a country (e.g., “Afghanistan ”) indicates the year that a given constitution-making process ended, whether or not the process resulted in the adoption of a constitution or a proposed set of reforms. Where the phrase “[ongoing process]” appears after the name of a country, it indicates that a process was still under way in that country at the time of writing (mid-2011).
Table 1 sets forth the country contexts referred to in the handbook and notes those that have a corresponding case study in the appendices.
Table 1: Countries/regions discussed in handbook
|Afghanistan (see case study)||Madagascar|
|Benin (see case study)||Montenegro|
|Bolivia (see case study)||Mozambique|
|Bosnia-Herzegovina (see case study)||Myanmar (formerly Burma)|
|Bougainville (see case study)||Namibia|
|Bulgaria||Nepal (see case study)|
|Burkina Faso||New Caledonia|
|Central African Republic||Northern Ireland|
|Colombia||Papua New Guinea (see case study)|
|Czechoslovakia||Poland (see case study)|
|Democratic Republic of the Congo||Portugal|
|El Salvador||Republic of the Congo|
|Fiji||Saint Kitts and Nevis|
|Finland||São Tomé and Principe|
|Great Britain||South Africa|
|India (see case study)||Sweden|
|Iraq (see case study)||Thailand|
|Ireland||Timor-Leste (formerly East Timor) (see case study)|
|Italy||Uganda (see case study)|
|Kenya (see case study)||Vanuatu|