Constitutions FAQ

In recent times, environmental issues have evolved into a pressing global concern, which can no longer be disregarded or overlooked by states and policy-makers. As a response, many constitutions now incorporate provisions concerning the protection of their nation\'s environment. Additionally, states are obligated by national and sometimes international laws to protect the environment and to consider the responsibility of the current nation and people to its future generations. For example, some constitutions provide guidelines for how natural resources can be divided among the population in order to promote equal distribution. Ecuador is a particular case in which the constitution has guaranteed the environment certain inalienable rights. The extent and scope of a constitution\'s protection of the environmental will vary depending on the country with some nations emphasizing certain issues more than others.

Sources: IDEA Handbook – Creating the New Constitution: A Guide for Nepali Citizens, page 9.

Corruption within the police force can be a challenge facing many new democracies, but it is an issue that can be addressed in the constitution. A constitution may state, for example, state that the Head of the police department must be unaffiliated with political organizations and cannot be discharged for displeasing the government. This is just one example of how a constitution can safeguard against corruption and ensure the independence of the police force.

Most constitutions say something about issues of national citizenship; who are to be regarded as citizens of the country, how one may become a citizen of the country, what rights and obligations citizenship will entail, whether dual citizenship is allowed and if so, what the procedures for obtaining this status should be, etc. Usually a person who is born in the country or has one or both parents living in the country is considered a citizen. However, issues of national citizenship in constitutions and whether or not to include detailed prescriptions concerning this subject may emerge in light of globalization and new concepts such as flexible citizenship and supranational citizenship.

Secularism is the assertion that religion and politics should be separated and not influence each other. A secular state does not have an official or preferred religion; instead, religion remains a personal matter.

Source: http://www.undp.org.np/constitutionbuilding/faq.php

In order to strengthen accountability of elected officials, constitutions may take measures so that those in power do not unfairly appropriate public goods. Traditionally, laws dealing with anti-corruption measures fall under the realm of ordinary legislation. However, because those who benefit from corruption are often the same people in charge of legislation, constitutional instruments that reach beyond the length of political terms in office, are needed to further safeguard against corruption. Modern constitutions, such as that of Afghanistan (The Constitution of the Islamic Republic of Afghanistan, 2004), commonly include provisions aimed at promoting transparency, accountability, and the establishment of independent tribunals as well as other institutions through which officials can be prosecuted for corruption.

Constitution can provide for certain key human rights, for example the outlawing of torture and other similar offences. The possibility of facing serious criminal charges might have a discouraging effect on potential offenders, which can lower the incidents of human rights abuses in the country. Likewise a constitution may prevent its national military from directing human rights abuses towards its own population, or parts of its population, by constitutionally empowering its supreme court over its military courts.

By stating the equality of all citizens and explicitly forbidding discrimination towards individuals with disabilities, constitutional drafters have the opportunity to formulate rules that enhance parity in a nation. The constitution can even specifically provide disabled individuals the same opportunities as other individuals. For example, a constitution can stipulate that the state will pursue policies and legislation that support the disabled in finding easier access to public places and in granting equal opportunity to employment.

Sources:
http://www.electionaccess.org/LR/Countries%20M-Z/Malawi.htm
http://www.undp.org.np/constitutionbuilding/faq.php

A constitution can address issues of gender and level the playing ground between men and women by providing gender equity and non-discriminatory treatment. For example, a constitutional provision can grant women a certain percentage of seats in official and representative bodies of the nation. However, just as is the case with human rights, national context is crucial. The example of a women\'s quota for seats in parliament might be regarded as too provocative within certain cultures and thus may be deemed an inappropriate provision for the constitution.

Sources: Deng, F.M (2008) Identity, Diversity and Constitutionalism in Africa, United States Institute of Peace Press: Washington DC, page 180-183

Human rights are rooted in a notion of universal dignity and are considered to be valid regardless of an individual\'s ethnicity, race, nationality, religion or culture. Human rights are encapsulated in the United Nations Universal Declaration of Human Rights of 1948. Its two essential rights are the right to human dignity and freedom. Although human rights standards have been constructed within a western setting and with a western perspective, the values that underlie the principles are often considered universal. When attempting to incorporate human rights into national constitutions, contextual considerations and adaptations are advisable as some cultural traditions might include certain practices that conflict with the exact rights listed in the UN declaration. This contextual framing is crucial for human rights to be considered legitimate during the implementation process.

Source: Deng, F.M (2008) Identity, Diversity and Constitutionalism in Africa, United States Institute of Peace Press: Washington DC, page 143-145,

If a constitution provides certain economic and social rights to individuals and groups, the state will be obligated to take specific actions to facilitate the enjoyment of those rights. The state may not necessarily be required to provide free education, medical services, etc., but it is obligated to pursue policies that enable individuals, families and groups to earn a living. However, it is important to keep in mind that many countries in the global south, even those that have economic and social rights in their constitutions, must respect rules and regulations imposed on them by international financial institutions. These rules and regulations can affect governments\' abilities to uphold the economic and social rights set forth in their constitutions.

One way a constitution can help guarantee fair elections is by creating an Independent Elections Commission. A constitution can also specify what criteria must be filled by both voters and candidates for elections.

Traditionally constitutions have not included detailed prescriptions concerning political parties. This lack of detail has contributed to some confusion concerning the governmental system of a state. As a result, many modern constitutions are more thorough in describing the ways political parties are allowed to operate, how they may finance their activities and how issues of accountability towards them may be addressed.

Source: For a more detailed understanding of political parties and their important role in a democratic society please be referred to IDEA Handbook – Creating the New Constitution: A Guide for Nepali Citizens, page 154-155

There are quite a few ways in which a constitution can actively bring about a more inclusive democracy. Some examples include implementing an electoral system that ensures a wide range of candidates in the legislature, creating rules that require or encourage political parties to include a wide range of candidates, creating federalism as a governing structure which might give people control over decisions that more directly affect them, empowering the local government, creating rules that require public institutions to reflect the diversities of the areas they represent, and providing rights to minorities, including religious rights and language rightsSource: http://www.undp.org.np/constitutionbuilding/constitutiondesign/inclusion...

The general means by which citizens are directly involved in politics is by voting for their representation in government. However, there are many indirect ways for the population to influence government policy, for instance, by engaging in various civil society institutions, such as non governmental organizations, environmental groups, non-profit organizations, activist groups, etc. These groups have the potential to shape current political situations.

Federalism is a system of government which distinguishes between powers available to national and sub-national levels of government.In this system, the constitution explicitly delineates which powers are exercised by the national government and which are devolved to sub-national levels of government. Some key features of federalism include:

• Two or more levels of government
• A written constitution which explicitly grants powers to several levels of government
• Constitutional protections for representing units within central law-making institutions
• Mechanisms and institutions for conducting intergovernmental relations
• Procedures for resolving disputes between levels of government (i.e. through judicial system or specially-created institutions)

Source: http://www.undp.org.np/constitutionbuilding/constitutiondesign/federalis...

In most constitutional monarchies the monarch has only ceremonial duties and no political power. The monarchy, therefore, serves only as a symbol of continuity and of the state.

A republic is a state which is not led by a hereditary monarch. The head of state, in most modern republics, is termed president. He or she is elected by the people (either directly or indirectly through parliament).

A constituent assembly is a body responsible for either making a new constitution or amending an existing one. Members of the assembly are usually elected, though some may be chosen through other methods, such as appointments by another governing body. Constituent assemblies sometimes operate similarly to a Parliament. In certain cases, the functions of the two bodies overlap. For instance, South Africa\'s parliament has acted as its constituent assembly and India\'s constituent assembly has had the functions of Parliament

The preamble is the introductory part of the constitution that normally sets out some, or all, of the following: the history of the constitution, the values and aspirations of the people, the nature of the state and the authority under which the constitution is made. The preamble is still one of the oldest and most common ways of incorporating values and may also hold great symbolic significance. Source: IDEA Handbook – Creating the New Constitution: A Guide for Nepali Citizens, page 69.

A constitution is the fundamental and basic law, of a country. The constitution determines the fundamental political principles of the government, rules of procedure of that government, rights and obligations of the citizenry and methods to ensure accountability of governmental branches.

Source: http://www.undp.org.np/constitutionbuilding/faq.php

A constitutional court is a specialized judicial organ having original and final jurisdiction on all matters relating to the interpretation of the constitution a court. It is also has exclusive jurisdiction to make judicial determinations on claims that attack the constitutionality or conformity of laws and actions of government agencies to the constitution. Separate or specialized constitutional courts are not a feature of all judicial systems. In the US system, for instance, the Supreme Court can also adjudicate on constitutional questions.

Entrenchment is an inherent feature in most written constitutions. Entrenchment deals with the legal procedures for modification of a constitution. An entrenched constitution recognizes the constitution and its process of modification as different from other laws. An un-entrenched constitution does not recognize the constitutional law as different or supreme and thus constitutions can be modified as easily as statutory laws. The procedure for modifying a constitution is often called amending. Amending an entrenched constitution requires more complex procedures than modification of a statutory law. Sometimes, this is because the constitution is considered supreme law. The United State\'s Supremacy Clause is an example of this.

Regardless of whether constitutional modifications require more complex procedures, all states with an entrenched constitution recognize the difference between constitutional law and ordinary statutory law. Procedures for ratification of constitutional amendments vary across states. In a federal system of government, the approval of a majority of state/provincial legislatures may be required. Alternatively, a national referendum may be required for amending the constitution, as is the case with Australia.

In constitutions that are not entrenched, no special procedure is required for modification of the constitution. In the small number of countries with un-entrenched constitutions, the constitution is not recognized with any higher legal status than ordinary statutes. In the UK, for example, laws which modify the constitution are passed on a simple majority in Parliament. The concept of "amendment" does not apply, as the procedure for modifying the constitution are the same as any other national law.

Generally speaking all provisions in a constitution should be binding. If however, there is a need for flexibility in provisions, the constitution should provide a time schedule for when the specific provisions will be enforced and implemented and who is responsible. If the state has not implemented the provisions according to the timetable, the constitutional court of the country can use its capacity to implement the provision. In most instances it is in fact the constitutional court that has the mandate and authority to enforce constitutional provisions. Most constitutional courts are also supplemented by other non-judicial bodies, such as an ombudsman, that also has enforcement powers and operates as a link between government bodies and citizens. Civil society, although legally lacking enforcement powers, may also serve as an authority that oversees compliance with the constitution.

Source: IDEA Handbook – Creating the New Constitution: A Guide for Nepali Citizens, page 257-258

A constitution should always be tailored to suit the specific environment of its implementation by taking into consideration unique national factors such as culture, history, ethnic composition. However, it is not uncommon for constitutional drafters to be inspired by constitutions from countries with similar conditions and factors. In that sense comparative constitutionalism serves an important function by helping experts and others involved in constitutional drafting draw knowledge from history. It is of course difficult to provide a general answer as to what extent it is appropriate to be influenced by other legal systems when drafting a new constitution – this is something that each nation needs to decide for itself.

A public referendum is a vote cast directly by the public for or against a political proposal. By nature it is a procedure that directly supports popular participation and increases the legitimacy of the outcome, in this case, whether the political document is ultimately adopted or not. This benefit is one that cannot be overstressed. Nonetheless, there are particular difficulties surrounding holding a public referendum to decide the adoption of a new constitution. First, in countries where illiteracy is common, it is hard to judge whether the people are fully aware of what they are voting for in the constitution. When exposing such an important and fundamental document for public voting those in charge need to be confident that the electorate is in fact knowledgeable about the document in question and how it will affect their lives. Organizing and arranging a referendum is also costly and requires institutional capacity, both of which may be lacking in less developed nations.

A common alternative to holding a referendum is to include the public in the initial phases of the constitution-making process. For example, the public can be encouraged to make submissions to the Constituent Assembly, who will then cast the final vote for or against the document.However, in a country where there is no rule of law and where corruption is a prominent feature, this strategy runs the risk of encouraging vote buying in connection to referendums. In this situation, having a public referendum would actually serve as a safeguard against corruption as it is much more difficult to manipulate the entire electorate than select members of a Constituent Assembly.

It is essential, especially in a country with no constitutional history, to extend civic education. Civic education programs should aim to convey basic notions of what a constitutional democracy entails, such as the meaning of democracy, the role, responsibility and rights of citizens, good governance, democratic principles and procedures, democratic institutions and the rule of law. Civic education programs may also be an appropriate method through which people can become familiar with their participatory skills so that they may enjoy and make use of their constitutional rights.

Source: http://aceproject.org/ace-en/topics/ve/vea/default

A country\'s people or the representatives of the people ultimately decide whether or not their constitution will include a bill of rights. Most nations today do in fact have a bill of rights incorporated in their constitutions. The primary function of a bill of rights is to protect fundamental rights of the citizens against violations from the government. As such, a bill of rights can be a legal safe-guard against future atrocities, especially for countries that have just emerged from violent conflicts.

Applying aspirational language in a constitution does not necessarily imply that what is actually being stated contradicts existing cultural norms in a society. Using aspirational language in the preamble, for example, can actually have a unifying affect on a nation, especially one emerging from civil conflict. Because the preamble holds symbolic value, the incorporation of visionary, forward-looking language can help to bring former adversaries closer together. Nevertheless, those responsible for the drafting need to be aware of and respect existing cultural norms present in the society in order to better ensure the constitution\'s successful implementation.

A constitution can distinguish amongst its provisions, making some of them superior to others in the sense that they will remain unalterable. Such provisions might encompass the country\'s basic structure (i.e. its status concerning federalism, unitary state, secularism, republicanism and other organizational formats of this nature) and would be safe-guarded against amendments by the country\'s Supreme Court. Another way of distinguishing between provisions is to utilize different processes when attempting to amend them. Approving certain clauses might require approval by a qualified majority of the legislative assembly, others by an absolute majority and yet others might require a public referendum for amendment. In post-conflict settings – where new constitutions may have just been drafted and implemented – another idea may be to, in a so-called sunset clause, introduce a fixed period of time during which no constitutional amendments can be made.

Source: IDEA Handbook – Creating the New Constitution: A Guide for Nepali Citizens, page 259-260

Whether a constitution should be amended and what the process of amending should be depends largely on the context in which the constitution was initially drafted and implemented. If the constitution is part of a peace agreement, it might include paragraphs and provisions that serve to address issues directly related to the conflict. These constitutions should anticipate that amendments will be needed as time passes and grievances reconciled. If the constitution cannot be amended, there is considerable risk that the unchanging constitution will cement society and its members in the mindset that prevailed during the conflict, which can ultimately hinder society from moving past the conflict. Generally, there are valid reasons why a constitution should not be very easily amended. It is not desirable, nor advisable, to have a constitution amended each time a country changes governments as frequent amending can bring uncertainty and instability to society. Political rules and procedures as well as social, economical and cultural rights, as are often embodied in constitutions, need to remain constant in order for those in power to remain legitimate in the eyes of its citizens.

One way to gauge public support for a new constitution is by utilizing research projects such as the Afrobarometer and Asian Barometer to canvass public opinion regarding various provisions or even the constitution in its entirety. Another strategy might entail holding a public referendum. Overall, allowing citizens to react to the new constitution demonstrates their preferences, which in turn guides drafters in crafting a better document. Please note, however, that public referendums regarding new constitutions can still pose a few problems; to learn more, please see the FAQ entry “What are the benefits and consequences of holding a referendum?”

Oftentimes the circumstances surrounding the drafting of the constitution will determine the level of national and international involvement. If an inclusive and participatory constitution- making process is sought after, it is advisable to create a proper balance between the participation and inputs provided by citizens and those by national experts, such as constitutional lawyers. One such balance is to have experts serve as advisors and allow citizens to determine the content of the constitution. International involvement during the drafting process may also be desired if, for instance, there is a shortage of national lawyers. In these circumstances, foreign expertise is a necessary consequence of the situation. In post-conflict situations, there may also be a lack of capable local institutions, making it difficult for a new constitution to be crafted withoutoutside involvement. International involvement is however a difficult matter as it may jeopardize the legitimacy of the final document. Nevertheless, there are various forms of international participation, and some might be considered more legitimate than others. For instance, international actors may provide logistical help (financial, technical assistance, etc.) rather than drafting the actual constitution. International actors can also choose to assist marginalized groups in having voices heard or enable local leaders to design the procedures for constitution drafting rather than imposing their own ideas and terms on the national population.

History has taught us that it is often better to keep peace agreements and constitutional deliberations separate. Examples, such as the post-conflict constitution building process in Bosnia-Herzegovina in which the constitution actually formed a part of the peace settlement, illustrate that peace agreements can negatively affect the conditions and provisions of the subsequent post-conflict constitution. There are many reasons to avoid having a peace agreement influence the content of the constitution. Often the peace agreement contains short term goals, such as bringing an immediate halt to hostilities, whereas a constitution should ideally hold long-term goals and principles for the nation. However, despite the downsides, it is necessary to consider the peace agreement in the constitution drafting process in order to prevent hostile parties from resuming conflict.

In recent times, it is generally accepted that public participation in the drafting stage of the constitution should be encouraged and sought after. However, the actual extent of public participation and its relevant procedures should be developed based on the nation\'s individual political context. Logistical matters, the time frame for the drafting period and the specific financial issues of a country will have consequences on the possibility and extent of public participation.

How a constitution is discussed and subsequently drafted will to a large extent determine how it is perceived by the public and whether or not it will be respected by the nation\'s citizens and residents. Public participation may be considered one of the key ingredients in ensuring public acceptance of the final document. Moreover, besides being an exercise in democratic empowerment, public participation provides drafters with input concerning the values and the needs of the population that can be helpful in the constitution-making process.

Despite the benefits, public participation can bring about problems if not dealt with properly. First, it is difficult to refer to “the public” as one single unit without disaggregating the population into smaller segments based on religion, ethnicity, gender age, etc. Each group will likely differ in their opinion of what should be in the constitution. Second, public participation does not inherently mean all voices will be heard or weighed equally. Therefore it is important to enact measures to accommodate equal participation of these various groups. Third, public participation can invite social groups to express opinions and concerns which can lead to polarization, heated debates, and even renewed conflict between different groups. While public participation should be encouraged and is a crucial component to creating legitimacy for a new constitution, it does carry with it significant risks that require advanced planning and careful implementation.

Sources: Ghai, Y & Galli, G (2006) ‘Constitution-building Processes and Democratization: Lessons Learned\', Democracy, Conflict and Human Security, International IDEA, page 240-245 Benomar, J. (2004) ‘Constitution-Making after Conflict: Lessons for Iraq\', Journal of Democracy, volume 15 (2), page 88-89
http://goliath.ecnext.com/coms2/gi_0199-6789905/Designing-a-constitution...

By providing transparent and impartial legal procedures, a constitution can safeguard against former victims taking justice into their own hands. The successor government should take measures to ensure that victims of serious atrocities can air their grievances, which in the long-term can create more political stability in the country. Thus it is important that a constitution amply provides for a functioning and independent judiciary.

In the aftermath of violent conflict where severe human rights abuses might have taken place, it is important for successor governments to pursue transitional justice so that the experience of victims can be heard, offenders can take responsibility for their actions and the process of reconciliation can begin. However, enshrining transitional justice measures in the constitution of a country might not be advisable as transitional justice often only provides specific goals for the short-term. Nevertheless, during the post-conflict constitution drafting process, rules and paragraphs can be included in the constitution that protects specific groups oppressed during the conflict. Examples of such measures might include granting a specific group or groups a certain percentage of seats in the legislature or providing an equal distribution of land.

A constitution typically aims to protect all of its citizens, providing each with equal freedoms, rights and obligations. The population is protected against leaders\' unjust use of power through a variety of constitutional protections: 1) restrictions on government procedures are clearly stipulated; 2) guidelines monitoring conduct between the citizenry and branches of government are plainly stated; and 3) elected officials are held accountable by the public for their decisions and actions. However, in certain instances, specific segments of the population are afforded additional protective measures, particularly vulnerable targeted groups in the aftermath of violent conflict. These protective measures are typically contextually dependent on the conflict\'s root cause, for instance differing between ethnic rivalries and struggles for scarce natural resources. For example, certain groups may be constitutionally protected by receiving a certain number of reserved parliamentary seats or a specified access to natural resources.

The process of creating procedures and rules in order to provide a basic structure for society is common across most cultures. Nevertheless, when discussing modern constitutions, societal rules and procedures often need to be in a written format to be considered a valid “constitution” by Western standards. If a constitution is being drafted in the aftermath of a violent conflict, a written document provides the benefit of recording in detail the necessary provision. However, it can be argued that the process of drafting a post-conflict constitution is an imposition of western ideals on a non-western culture. Despite this, the content of the constitution, albeit in written form, can still largely be guided by the nation\'s own culture and political context.

It might be a valid point to attempt a written document as the amount of detailed, and necessary prescriptions, are not appropriate to leave to be evolved in everyday practice – as such, in the process of drafting the post-conflict constitution it can be argued that western ideals are being conveyed to a non-western culture. However, the ideals that influence the content of that constitution, even though being in a written format, must be guided by the context and culture of its implementation.

Source: Deng, F.M (2008) Identity, Diversity and Constitutionalism in Africa, United States Institute of Peace Press: Washington DC, page 9-15