Does the Process of Constitution-Making Matter (original) (raw)
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Constitution-making in the 21st century
International Review of Law
Constitutions have been made or changed in major ways in more than half the countries of the world in recent decades. This article deals with contemporary approaches to constitution-making, organising the analysis around three key phases: setting the agenda, in terms of both substance and process; design, drafting and approval; and implementation. It argues that, while all constitutionmaking processes are different, there are some distinctive features of constitution-making in the 21st century that include popular participation, the need to build trust, internationalisation in its various forms and the importance of process. The article canvasses examples of constitution-making practices that have been or are likely to be influential. It identifies and briefly explores some of the key tensions in constitution-making between, for example, international involvement and domestic ownership of a Constitution and public participation and leadership.
Annual Review of Constitution-Building: 2019
2020
International IDEA would like to thank the individual colleagues who authored chapters in this Annual Review and the internal and external reviewers of those chapters. In addition, we would like to extend particular thanks to the international experts who contributed insightful thoughts and reflections on constitution-building over the past 10 years, which contributed to the chapter 'A decade of constitution-building processes: some reflections from international experts'. We are grateful for your time and support. This includes Anna Dziedzic,
Journal of Politics and Law, 2017
Constitution-building is one of the most salient aspects of transitional processes, from war to peace or from authoritarian rule, in terms of establishing and strengthening democracy. This paper is part of a research project that aims to identify the circumstances under which constitution-building can strengthen democracy after violent conflict and during transitions from authoritarian rule. Previous research has indicated that the actions and relations of political elites from opposing political parties when making the constitution has bearing on the state of democracy post promulgation, but that the careful sequencing of public participation in the process can be of relevance as well. This paper conducts a systematic analysis of seven empirical cases and focuses the investigation to the type of constitution-building body that has been employed and to during what stage of the process the general public have been invited to participate. It concludes that popularly elected constituti...
The Citizen as Founder: Public Participation in Constitutional Approval
2008
Public involvement in constitution making is increasingly considered to be essential for the legitimacy and effectiveness of the process. It is also becoming more widespread, spurred on by constitutional advisors and the international community. Yet we have remarkably little empirical evidence of the impact of participation on outcomes. This essay reports hypotheses on the effect of one aspect of public participation in the constitution-making process - ratification - and surveys available evidence. We find some limited support for the optimistic view about the impact of ratification on legitimacy, conflict, and constitutional endurance.
Citizen as Founder: Public Participation in Constitutional Approval
Public involvement in constitution making is increasingly considered to be essential for the legitimacy and effectiveness of the process. It is also becoming more widespread, spurred on by constitutional advisors and the international community. Yet we have remarkably little empirical evidence of the impact of participation on outcomes. This essay examines hypotheses on the effect of one aspect of public participation in the constitution-making process -ratification- and surveys available evidence. We find some limited support for the optimistic view about the impact of ratification on legitimacy, conflict, and constitutional endurance.
How participatory constitution building processes affect the quality of democracy
2011
Public participation in constitution building processes has been advanced as a standard operational measure, in post-conflict contexts, when states undergo regime change from nondemocratic rule and during other periods of institutional crisis or reform. This is the case regardless of the scope of the constitution making activity-be it a complete overhaul of the pre-existing constitution and the creation of an entirely new document or a more incremental approach to the endeavour. Ordinary citizens, civil society organizations and local nongovernmental organizations are now sitting in the front seat doing the steering, whereas domestic as well as international legal experts and national political elites serve to properly incorporate and endorse the opinions of the people in the final constitution. Top-down constitution making has been replaced by bottom-up constitution building. This is at least the idealistic idea. Indeed, public participation in constitution building processes is gaining ground because of the perceived beneficial effects that it causes; scholars in this vein of research, and practitioners alike, are confident that it will have positive effects on the state of democracy subsequent the venture. Yet, hitherto there has been no research that actually sets out to study this argument; hence, the question of how public participation affects the subsequent quality of democracy in states that have undergone such processes remains unanswered. This settles the need for research in this specific area, which is the contribution that my dissertation hopes to make for which the specifics will be presented in this paper.
Under what circumstances do new constitutions promote democracy? Between 1974 and 2011, the level of democracy increased in 62 countries following the adoption of a new constitution, but decreased or stayed the same in 70 others. Using data covering all 132 new constitutions in 118 countries during that period, we explain this divergence through empirical tests showing that overall increased participation during the process of making the constitution positively impacts post-promulgation levels of democracy. Then, after disaggregating constitution making into three stages (drafting, debating, and ratification) we find compelling evidence through robust statistical tests that the degree of citizen participation in the drafting stage has a much greater impact on the resulting regime. This lends support to some core principles of "deliberative" theories of democracy. We conclude that constitutional reformers should focus more on generating public "buy in" at the fron...
Constitution Making during State Building
2014
How can fragmented, divided societies that are not immediately compatible with centralised statehood best adjust to state structures? This book employs both comparative constitutional law and comparative politics, as it proposes the idea of a 'constituent process', whereby public participation in constitution making plays a positive role in state building. This can help to foster a sense of political community and produce a constitution that enhances the legitimacy and effectiveness of state institutions because a liberal-local hybrid can emerge to balance international liberal practices with local customary ones. This book represents a sustained attempt to examine the role that public participation has played during state building and the consequences it has had for the performance of the state. It is also the first attempt to conduct a detailed empirical study of the role played by the liberal-local-hybrid approach in state building.