In the World of Constitution-Building in 2023

In 2023, developments in the field of constitutional reform were captured through ConstitutionNet, the only platform dedicated to generating, collating, and disseminating knowledge and updates on constitution-building processes worldwide. Through our Voices from the Field series, local constitutional experts critically evaluated the process and content of reforms in their countries. We published 36 original articles delving into a myriad of themes such as the role of constitutions in counteracting democratic backsliding, enhancing political pluralism, and addressing political crises. Through these pieces, Voices has expanded its coverage to approximately 130 countries since its launch in 2013. These insights were complemented by our regular news digests, bringing over 350 pieces of constitutional news to our readers.

Two of three new constitutions promulgated in 2023 were a result of military-led constitution-making processes. This is perhaps unsurprising given the growing number of states functioning under post-coup transitional legal frameworks that aim to complement or replace a maligned constitution. In 2023, this trend intensified, with Gabon and Niger joining the growing list of African countries — including Chad, Burkina Faso, Guinea, and Mali — governed by transitional military regimes.

In Mali, the transitional government pursued a contested drafting process that resulted in a constitutional text criticized for centralizing power in the presidency and expanding the role of the military. This new constitution was declared as passed by a remarkable 97 per cent via referendum in June 2023. Similarly, in Chad, a new constitution was declared as passed via referendum in December 2023 following a process that had been boycotted by key opposition stakeholders. In Central African Republic, a third new constitution aimed to abolish presidential term limits, casting a yet longer shadow on democratic constitution-making in the region in 2023.

Luxembourg's "modernized" constitution came into force in 2023 after a multi-phase amendment project from 2021-2022, and significant amendments were also passed in Bulgaria and Uzbekistan. In Israel, the Knesset passed controversial amendments to the Basic Law: Judiciary, but these were struck down by the Supreme Court in January 2024. 

Chile's second draft constitution, despite a highly publicized and participatory process, failed to pass via referendum. Voices from the Field featured analysis from constitution-makers involved in the process: Verónica Undurraga, the president of the Expert Commission, Sebastián Soto, the vice-president of the Expert Commission, and Aldo Valle, the vice-president of the Constitutional Council. Other articles from eminent Chilean experts analysed contextual factors, the political power shift from the first to the second process, public participation, and the various stages of the drafting process, from the Expert Commission’s preliminary draft to the populist and conservative changes made by the elected Constitutional Council.

The following outlines some other key trends captured by ConstitutionNet in 2023.

A necessary sea change? Environmental priorities shaping constitutional reforms

2023 was a watershed year in the prominence of environmental and climate change concerns expressed in constitutional reform endeavours worldwide.

Tuvalu, a Small Island Developing State grappling with the looming threat of climate change, passed the world’s first constitutional assertion of statehood in anticipation of land loss due to rising sea levels. A staggering 95 per cent of its land is projected to face regular flooding within the next 80 years. These amendments represent the state’s commitment to safeguarding its statehood, encompassing intangible components such as culture and heritage, as well as maritime zones in response to climate change-induced loss of territory. The amendments further commit the state to proactively address climate change to ensure the security and survival of its people, preserve its land, and conserve its statehood. Along with recognizing all relevant regional and international laws relating to climate change mitigation and adaptation, the constitutional amendments emphasize the imperative of international cooperation in addressing climate change and protecting the most vulnerable populations.

Environmental preservation was on the ballot in Ecuador in 2023, following a 10-year campaign by environmental activists to stop oil extraction in an area of Yasuní National Park. This ecological reserve, renowned for its biodiversity and home to Indigenous communities in voluntary isolation, also houses Ecuador’s largest oil reserve. Recognizing the ecological importance of the park, in 2007 then-President Rafael Correa proposed an ambitious plan to seek compensation from the international community to refrain from exploiting the oil beneath Yasuní's soil. After the plan received only $13 million in funding, President Correa greenlit future oil extraction within the park. In response, a coalition of Indigenous peoples, environmental activists, and feminists, called the Yasunidos collective, initiated a popular consultation on preventing future crude oil extraction in the National Park. Despite facing documented harassment, intimidation, surveillance, and official obstruction, the group ultimately succeeded, and the national referendum occurred in August 2023, passing with nearly 60 per cent in favor of Yasuní’s preservation. Celebrations were short lived, however, when the government stated its intention to continue drilling. Nevertheless, in November 2023 the state oil company announced its commitment to phase out and ultimately cease drilling within the area covered by the referendum by the end of 2024.

Early in 2023, Ireland's Citizens' Assembly on Biodiversity Loss produced recommendations for the Irish government. Comprised of 99 randomly selected citizens, the Assembly proposed a constitutional referendum to enshrine environmental human rights and the rights of nature — a departure from its original government mandate that did not contain a constitutional reform component. However, acknowledging the Citizen’s Assembly recommendations, the Irish government integrated the key points into its new National Biodiversity Action Plan, launched in January 2024, obliging the National Parks and Wildlife Service to explore legal recognition of the rights of nature, including the potential of constitutional reform.

Other states also contemplated constitutional amendments related to environmental protection. If approved, Aruba could become the second country to constitutionally recognize the inherent rights of nature, while in Malta, the opposition has proposed a constitutional amendment on a right to the environment as a fundamental right. These amendments and proposed reforms, diverse in scope and impact, underscore the escalating urgency of environmental concerns in debates around constitutional reform and the growing consensus that constitutions have a key role to play in binding state action and fulfilling international climate obligations.  

Minority (and majority) representation revisited

2023 brought to the fore the ongoing issues related to equitable representation, particularly in countries wrestling with the legacy of political exclusion. The experiences of Australia, India, and Burundi collectively illuminate the complexities and challenges inherent in enacting constitutional reforms towards equitable representation in the face of historical injustices and ongoing disparity, further complicated when an amendment requires majority ratification of minority rights.

In Australia, a long-awaited and highly anticipated constitutional referendum to establish an Indigenous representative body to parliament was soundly defeated in October 2023. The concept for “The Voice” had its roots in the 2017 Uluru Statement from the Heart, put forward by Indigenous Australians, and which emphasized the necessity of substantive constitutional and structural reform to address historical and ongoing political and social marginalization, criminalization, and displacement of Indigenous peoples. To pass, a double majority was required at referendum: a majority of overall voters and majority of voters in a majority of states. Ultimately, the referendum fell short on both counts, garnering less than 40 per cent support nationwide and failing to secure a majority in any state. The outcome left Indigenous groups deeply disheartened, and it raises questions about the possibility of any federal constitutional amendment. Still, various state and territory endeavours persist to create Indigenous representative bodies, establish truth-telling processes, create dispute-resolution bodies, and enable self-government at a substate level.  

In India, parliament passed — almost unanimously — a historic constitutional amendment reserving 33 percent of seats for women in the Lower House and state assemblies. Like in many states in the world, women’s representation in national parliament is not close to parity, hovering around 15 per cent and as low as 10 per cent in state assemblies in India. Previous constitutionalized quotas for local governance boosted women’s representation to over 40 per cent. But at the federal and state levels, prior attempts to enact similar constitutional changes faced significant opposition, including because of concerns that women belonging to other marginalized groups were not assured representation under the proposed scheme. The amendments state that the quotas will only come into force after a census and delimitation process, leaving the timeline for implementation unclear. This has been recently challenged in the Supreme Court by the National Federation of Indian Women, which seeks implementation of the women’s reservation before the 2024 elections.

In Burundi, the Senate initiated an assessment of ethnic quotas that are intended to ensure representation of major ethnic groups in all governmental roles and institutions. The quotas, which exist in the executive, legislature, and judiciary, were a central component of the 2000 Arusha Agreement, aimed at ending decades of inter-ethnic violence between Hutu and Tutsi ethnic groups. The quotas were subsequently embedded in the 2005 and then 2018 constitutions, and accompanied by a provision giving the Senate five years to assess whether to continue or end the mechanism but without specifying indicators to use in determining the continuing relevance or necessity of the quotas. Critics argue that the quotas entrench ethnic divisions and undermine meritocracy, while supporters believe they are essential for maintaining stability and inclusivity. The Senate's evaluation process will involve stakeholder meetings throughout the country, culminating in a report to the government within two years. While the report may find that quotas have succeeded in decreasing the salience of ethnicity in political rhetoric, they have not, as argued in Voices from the Field, prevented the ruling party from amassing power, nor remedied persistent governance challenges.

Constitutional amendments based on values and identity

Constitutions serve many functions, including organizing and dividing political power, establishing institutions, and declaring rights. 2023 saw the fruition of several constitutional reform endeavours centered on national values and identity. Some of these amendments were years in the making. For example, the Netherlands added disability and sexual orientation to the prohibited grounds of discrimination under the Constitution after a decade-long campaign, while Ireland has committed to holding a gender equality referendum to amend "outdated" provisions in the Irish Constitution relating to families and stereotypes of women’s "place in the home". Two states passed reforms related to language: South Africa’s constitutional amendment recognized sign language as the twelfth official language, and Moldova passed a reform to replace “Moldovan language” with “Romanian language” in all laws and the Constitution, illuminating its pro-European orientation and distancing from Russian influence.

Other identity- and value-based reforms were pursued in response to perceived overreach or control from abroad. For example, Saint Lucia easily passed a constitutional amendment replacing the Privy Council with the Caribbean Court of Appeal as the final court of appeal (with opposition in Jamaica advocating for a similar amendment). In Bosnia and Herzegovina, parliament pursued legislation to remove the three foreign judges constitutionally mandated to serve on the Constitutional Court under the Bosnia and Herzegovina Constitution on principles of national sovereignty, despite disagreement on whether a constitutional amendment is needed to legally do so.

The principle of sovereignty has also been instrumentalized to enact populist reforms, such as Hungary’s legislative package to protect ‘national sovereignty’ based on the constitutional obligation of every state organ to ‘protect’ the ‘constitutional identity . . . of Hungary’ (Article R(4)). The law creates a new government entity (the “Sovereignty Protection Office”) to investigate and criminally prosecute individuals and organizations carrying out activities ‘aimed at influencing democratic discourse and state and social decision-making processes’ or receiving funding or support from abroad to carry out activities aimed at ‘influencing the will of voters’. In a similar vein, Slovakia’s precautionary ‘right to cash’ amendment rode to success on fears that a digital Euro controlled by the European Central Bank would be forced upon Slovakia, undermining its sovereignty and impacting the privacy of citizens.

Looking toward 2024: reviews and reforms

2023 witnessed the appointment of several constitutional review bodies (in Thailand, Trinidad and Tobago, and Guyana expected soon). Simultaneously, ongoing reviews continued to unfold in Armenia, Belize, British Virgin Islands, and Jamaica. As we step into 2024, we will likely see the next phase of constitutional reform after completion of constitutional reviews in Barbados, British Virgin Islands, Botswana, Papua New Guinea, Somalia, Tanzania, and Wales. We additionally anticipate continuing debates and the potential for significant constitutional reform processes in Lesotho, Nigeria, the Philippines and Türkiye.

Furthermore, our attention turns to countries that may embark on reforms, albeit questionably democratic, especially those ostensibly transitioning from military rule to civilian governance. To this point, the junta in Guinea has announced that a referendum on a new constitution will take place in 2024. As explored in International IDEA’s 2022 Annual Review of Constitution-Building, military governments are faced with a choice when seeking a return to constitutional order: make a new constitution or amend the constitution in force at the time of the coup. While international actors strongly emphasize a ‘return to constitutional order’ as quickly as possible, Voices from the Field highlights how due attention is not always given to the legitimacy or inclusiveness of the constitution-making process itself, nor to the substantive content of the constitution to ensure it complies with established standards of democratic governance. Notably, the joint statement of withdrawal from the ECOWAS regional bloc by Burkina Faso, Mali, and Niger in January 2024 signals a shift in regional dynamics and alliances. This shift may have significant implications for democratic governance in countries affected by coups and any subsequent constitutional amendments or constitution-making processes.

Readers can be assured of continued timely analysis of this year’s constitutional amendments, reforms, and review processes. The Constitution-Building team of International IDEA thanks our readers for their continued engagement and interest in the world of constitution-building.

Sharon Pia Hickey is the editor of ConstitutionNet.

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Suggested citation: Sharon Pia Hickey, ‘In the World of Constitution-Building in 2023’, ConstitutionNet, International IDEA, 31 January 2024, https://constitutionnet.org/news/voices/world-constitution-building-2023

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