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Journal articles on the topic 'Constitution-making process'
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1
OSIATYNSKI, WIKTOR. "The Constitution-Making Process in Poland." Law & Policy 13, no. 2 (April 1991): 125–33. http://dx.doi.org/10.1111/j.1467-9930.1991.tb00062.x.
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Ginsburg, Tom, Zachary Elkins, and Justin Blount. "Does the Process of Constitution-Making Matter?" Annual Review of Law and Social Science 5, no. 1 (December 2009): 201–23. http://dx.doi.org/10.1146/annurev.lawsocsci.4.110707.172247.
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Choudhry, Sujit, and Mark Tushnet. "Participatory constitution-making: Introduction." International Journal of Constitutional Law 18, no. 1 (January 2020): 173–78. http://dx.doi.org/10.1093/icon/moaa014.
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Abstract At least since the late eighteenth century, constitutions have been understood as emanations of the will of “the People,” as the ultimate expression of an inherent popular sovereignty. In the form of theories of constituent power, accounts of constitutional foundations blended notional or conceptual “descriptions” of the People, which anchored the political legitimacy of constitutional orders in the idea of hypothetical consent, with empirical claims that the nation’s actual people were represented in constitution-making processes through elected delegates and thereby were the authors of and gave consent to its fundamental law. As part of the third wave of democratization, there was an important shift in what popular participation consisted of—from indirect participation by elected representatives to direct, popular participation in the constitution-making process. As a matter of constitutional process, this led to the growing practice, and expectation, that major constitutional changes should be ratified through referenda.
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Der Walt, Johan Van. "Constitution-Making as a Learning Process: Andrew Arato’s Model of Postsovereign Constitution-Making: Editor’s Introduction." South African Journal on Human Rights 26, no. 1 (January 2010): 1–18. http://dx.doi.org/10.1080/19962126.2010.11864973.
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Verdugo, Sergio, and Marcela Prieto. "The dual aversion of Chile’s constitution-making process." International Journal of Constitutional Law 19, no. 1 (January 1, 2021): 149–68. http://dx.doi.org/10.1093/icon/moab011.
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Abstract Chile initiated a constitution-making process in late 2019, after the major political parties signed an agreement to respond to the massive demonstrations that took over the streets in October of 2019. Dominant trends in Chile and Latin America’s constitutional thought typically examine this type of process through the lenses of the constituent power or transformative constitutionalism. The authors of this essay offer a different view. They argue that Chile’s constitution-making process, as designed by the multiparty agreement, manifests a double aversion: to avoid the Bolivarian way of constitution-making—including its associated constituent power narrative—and to put an end to the institutional and symbolic legacy of the Pinochet regime. In attempting to stay clear of these two negative models, the authors argue that the rules of the constitution-making process have adopted the main features of the post-sovereign model of constitution-making.
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Elster, Jon. "Forces and Mechanisms in the Constitution-Making Process." Duke Law Journal 45, no. 2 (November 1995): 364. http://dx.doi.org/10.2307/1372906.
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Yahyaoui Krivenko, Ekaterina. "The “Reservations Dialogue” as a Constitution-Making Process." International Community Law Review 15, no. 3 (2013): 381–403. http://dx.doi.org/10.1163/18719732-12341258.
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Abstract The article proposes a new reading of the reservations regime to human rights treaties. The practice developed by states in relation to the reservations regime is analysed and presented as a constitution-making process. This new vision is based on the notion of the reservations dialogue as presented and developed by the Special Rapporteur of the International Law Commission on reservations to treaties. However, the article also proposes a wide reading of the practice of the reservations dialogue using examples from the Convention on the Elimination of All Forms of Discrimination against Women. Based on this analysis, the author formulates some proposals as to a more adequate development of the reservations dialogue and the reservations regime. A development which will favour the formation of inclusive international human rights as a basis for a future international constitution accepted as legitimate by all members of the international community.
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Krivenko, Ekaterina Yahyaoui. "The “Reservations Dialogue” as a Constitution-Making Process." International Community Law Review 16, no. 3 (July 9, 2014): 306–32. http://dx.doi.org/10.1163/18719732-12341283.
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The article proposes a new reading of the reservations regime to human rights treaties. The practice developed by states in relation to the reservations regime is analysed and presented as a constitution-making process. This new vision is based on the notion of the reservations dialogue as presented and developed by the Special Rapporteur of the International Law Commission on reservations to treaties. However, the article also proposes a wide reading of the practice of the reservations dialogue using examples from the Convention on the Elimination of All Forms of Discrimination against Women. Based on this analysis, the author formulates some proposals as to a more adequate development of the reservations dialogue and the reservations regime. A development which will favour the formation of inclusive international human rights as a basis for a future international constitution accepted as legitimate by all members of the international community.
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Arato, Andrew. "Democratic constitution-making and unfreezing the Turkish process." Philosophy & Social Criticism 36, no. 3-4 (March 2010): 473–87. http://dx.doi.org/10.1177/0191453709358543.
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This short article will seek to explore the causes, and possible solutions, of what seems to be the current freezing of the Turkish constitution-making process that has had some dramatic successes in the 1990s and early 2000s. I make the strong claim that democratic legitimacy or constituent authority should not be reduced either to any mode of power, even popular power, or to mere legality. It is these types of reduction that I find especially troubling in recent Turkish constitutional struggles, where the legal claims of two powers — the government-controlled legislative and the judicial branches — to structure the constitution are not backed by sufficient political legitimacy. In effect these two powers that claim their constituent authorization, rather implausibly in my view, from either the democratic electorate or from an original constituent power, because of their conflict threaten to freeze the constitution-making process that very much needs to be continued and concluded. I end the article by making a suggestion for one possible constitution-making procedure that would be both legitimate and legal.
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Abdelgabar, Noha Ibrahim. "International Law and Constitution Making Process: The Right to Public Participation in the Constitution Making Process in Post Referendum Sudan." Verfassung in Recht und Übersee 46, no. 2 (2013): 131–51. http://dx.doi.org/10.5771/0506-7286-2013-2-131.
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Stacey, R. "Constituent power and Carl Schmitt's theory of constitution in Kenya's constitution-making process." International Journal of Constitutional Law 9, no. 3-4 (October 1, 2011): 587–614. http://dx.doi.org/10.1093/icon/mor050.
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Gwarav, Taurai. "Habermas deliberative democracy and the Zimbabwean constitution-making process." African Journal of Political Science and International Relations 6, no. 2 (February 28, 2012): 15–21. http://dx.doi.org/10.5897/ajpsir11.040.
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Ngoc Son, Bui. "Contextualizing the Global Constitution-Making Process: The Case of Vietnam†." American Journal of Comparative Law 64, no. 4 (December 1, 2016): 931–79. http://dx.doi.org/10.1093/ajcl/avx005.
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Hing, Vandanet. "The Contemporary Cambodian Constitutional Enforcement." Journal of Southeast Asian Human Rights 3, no. 1 (June 26, 2019): 39. http://dx.doi.org/10.19184/jseahr.v3i1.8406.
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Studies conducted on the constitutional law-making process have shown that public participation is a key element of the relationship between the government and its citizens, and legitimizes the whole process. The present paper discusses the relationship between the people and the government on the basis of the Cambodian Constitution, both de jure andde facto. As assessments, it takes the 1993 constitutional making process and the public’s participation thereto. This paper aspires to answer the following questions: firstly, how does the constitutional law-making process impact the exercise of constitutional rights in Cambodia, and, secondly, to what extent does public participation play a role in public affairs, especially insofar as the constitution and law making processes are concerned. It further suggests that the concept of meaningful public consultation on constitution and law making should be incorporated in the Cambodian Constitution.
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Wallis, Joanne E. "‘Cut and Paste’ Constitution-Making in Timor-Leste." Chinese Journal of Comparative Law 7, no. 2 (September 1, 2019): 333–58. http://dx.doi.org/10.1093/cjcl/cxz012.
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Abstract When Timor-Leste (re)gained its independence in 2002, it appeared to be a triumph of international state building. In a relatively short period, a massive United Nations (UN)-run mission had purportedly built the institutions of a liberal democratic state. State building took place in a highly globalized context; there was a large UN presence as well as international non-governmental organizations, academics, journalists, and activists. In addition, many exiled Timorese leaders returned to play a role. While constitution making was central to state building, there are questions about the legitimacy, effectiveness, and stability of the Timor-Leste Constitution and the state institutions that it created. This article focuses on three aspects of the interplay between the global and local during the constitution-making process. First, it considers the relationship between the UN and Timorese elites, finding that the UN adopted a hands-off approach that created space for certain elites to dominate and politicize the process. These returning exiles engaged in ‘cut and paste’ constitution making, with much of the Timor-Leste Constitution based on the 1989 version of the Portuguese Constitution (modified to an extent by the 1990 Mozambican Constitution). Second, it analyses whether the constitution-making process was a true exercise of the constituent power of the Timorese people and concludes that the dominance of certain elites contributed to social division. Third, it discusses the significance of public participation, noting that minimal participation has meant that the Constitution does not reflect the views of most Timorese people. This is even though the principle of ‘popular sovereignty’ implies that, at least in states that aspire to be liberal democracies, people should be given the opportunity to participate in making their state’s Constitution. It concludes by arguing that the Timorese people missed the opportunity for their Constitution to define the political bond between them and embed state institutions in the local context.
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Ghosh, Shyamali. "Constitutional Changes in Bangladesh: Process of Political Development." India Quarterly: A Journal of International Affairs 42, no. 4 (October 1986): 391–404. http://dx.doi.org/10.1177/097492848604200403.
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The Peoples' Republic of Bangladesh initially adopted a constitution in 1972 that sought to direct the state power to develop ways and means for the society's transition to a socialistic economic order through a secular parliamentary democracy.1 Today, through constitutional changes, Bangladesh is neither a parliamentary democracy, nor does it follow a path to a socialistic economy. Secularism also is no longer a constitutional dictum.2 These clearly indicate changes in the fundamentals of the Constitution (1972), and such changes, wheneuer they occur, require probing in terms of the basis, the process and method of constitution making, constitution-amending and the legitimacy of these processes. The following analysis attempts to explore the Bangladesh case.3
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Lamichhane, Bimal Prasad. "Models of Constitution Making with Reference to Nepal." Journal of Political Science 20 (October 4, 2020): 23–45. http://dx.doi.org/10.3126/jps.v20i0.31793.
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Constitution is commonly called as the foundation, framework, guideline, roadmap, charter, established rule or legal order of government. It is the supreme and fundamental law of the state because constitution gives legitimacy or validity to all laws and no laws surviving against the constitution. Law is valid only if it is in conformity with the constitution. Constitution being the basic and organic law of land the process of its making is quite important. Constitution making is the act of creating and reforming the body of fundamental principles that govern a state. Constitution making is, therefore, a critical entry point for shaping the future of a country, the exercise of power and the social compact among citizens and between citizens and their state. There is no universal rule, formula, exact method or model for making a constitution. There are several models used in constitution making such as commission model, expert model, constituent assembly model, referendum model, draft committee model, gift model, colonial model, adherence model, peace negotiation model, national conference model, etc. The models of constitution making is selected according to geographical, social, cultural, religious, economic, historical, political and legal system of a concerned country. Hence, in this article the author clearly presents the clear perspectives of constitution, constitution making and the popular models and the procedures used in making constitution with reference to Nepalese experiences and instances.
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Yankson-Mensah, Marian. "Transitional justice and constitutionalism: The case of Ghana." South African Journal of Criminal Justice 33, no. 3 (2020): 543–62. http://dx.doi.org/10.47348/sacj/v33/i3a2.
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The delicate process of constitution-making during transition covers a range of issues, but usually features questions on how to address past human rights violations, change repressive laws, recognise basic rights and reform state institutions. Hence, the constitution-making process can have significant implications on the transitional justice mechanisms that are adopted and how they are implemented. In the case of Ghana, the 1992 Constitution came into force after decades of political instability. On 28 April 1992, a draft constitution for Ghana’s fourth republic was approved in a referendum. As part of the transitional provisions in the 1992 Constitution, amnesty provisions were enshrined to protect members of all previous military regimes from prosecution. However, the 1992 Constitution did not contain express provisions for initiation of other transitional justice mechanisms. In a bid to reflect on the rarely examined relationship between transitional justice mechanisms and constitutionalism, this paper shall examine Ghana’s amnesty laws, truth commission and reparative measures in relation to the constitution-making process and constitutional norms. The paper opines that as separate processes towards a common end, proper synchronisation of Ghana’s transitional justice processes and constitution-making could have shaped the country’s transitional justice mechanisms in the right direction towards achieving their perceived goals.
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Ndulo, M. "Constitution-making in Africa: assessing both the process and the content." Public Administration and Development 21, no. 2 (2001): 101–17. http://dx.doi.org/10.1002/pad.163.
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Bhim, Mosmi. "Constitution-making in a stifled democracy: A case study of self-censorship perpetuating propaganda in Fiji." Pacific Journalism Review 19, no. 1 (May 31, 2013): 167. http://dx.doi.org/10.24135/pjr.v19i1.244.
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Fiji is preparing for general elections in 2014 by when the country will have been under military rule for eight years. A process of constitution-making began in mid-2012 and a new Constitution should be available by 2013. Citizens and the media continue to practise self-censorship and the military regime continues to remind citizens that they would crack down harshly on ‘trouble-makers’. In the same breath, the regime has promised the international community that the process for constitution-making will be free, fair, participatory and transparent. This article, through analysis of media reporting, will examine whether current self-censorship by media is aiding the constitution-making process, and if indeed, self-censorship is promoting peace? Through an analysis of the work of the Constitution Commission, the article will analyse the extent of participation of citizens in the context of a stifled democracy.
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Moehler, Devra C. "Participation and support for the constitution in Uganda." Journal of Modern African Studies 44, no. 2 (June 2006): 275–308. http://dx.doi.org/10.1017/s0022278x06001637.
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A major challenge for transitioning states is to create a constituency of citizens to support and defend the new constitution. Participatory constitution-making is one of the most often recommended methods for enhancing constitutional legitimacy. This research tests the claim that public participation in the Ugandan constitution-making process built support for the 1995 constitution. Contrary to expectations, multivariate analysis of survey data demonstrates that citizens who were active in the process were no more supportive of the constitution than those who stayed at home. In-depth interviews reveal that local political leaders, not participation, caused citizens to view the constitution as legitimate or illegitimate. Constitutions are difficult for citizens to evaluate, so they rely on political elites for information and opinions. To predict whether participation will strengthen or weaken constitutional support, we must examine the messages that elites communicate to citizens about their participation, the process, and the resulting constitution.
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DE VISSER, MAARTJE, and NGOC SON BUI. "Glocalised constitution-making in the twenty-first century: Evidence from Asia." Global Constitutionalism 8, no. 2 (June 13, 2019): 297–331. http://dx.doi.org/10.1017/s2045381719000066.
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Abstract:How have Asian nations conducted, or how are they conducting, constitution-making in the face of pressures associated with globalisation, and how do they balance those forces with domestic interests and realities? This article aims to develop an analytical framework that can capture this global–local interplay. It introduces the concept of ‘glocalised constitution-making’ to denote the co-existence and relationship between the two governance levels as manifested in the forces, actors and norms pertaining to the process of drafting a new constitution as well as its substance. Glocalisation permeates the entirety of a constitution-making episode, from the impetus to initiate the process, to its design and inclusiveness of interests featured, and the scope of topics considered. The effects of glocalised constitution-making for domestic drafters are arranged along a continuum with approbation and aversion as the polar opposites. The precise location on the continuum will depend on the value preferences of the domestic stakeholders and the matters under consideration. The application of this analytical framework is illustrated with reference to recent constitution-making exercises in Bhutan, Nepal, Thailand, East Timor and Sri Lanka.
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Fombad, Charles Manga. "Constitution-Building in Africa." African and Asian Studies 13, no. 4 (December 10, 2014): 429–51. http://dx.doi.org/10.1163/15692108-12341316.
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Constitution-building is a delicate and intricate process which requires ample reflection and careful choices. African constitution-builders and politicians have since the beginning of the 1990s embarked on a process of constitutional reforms. A careful examination of the developments of the last two decades shows that the process has almost provoked never-ending contagion of making, unmaking and remaking of constitutions. This paper attempts to provide an over-view of the changes that have been taking place. Some of the issues relating to the durability of national constitutions and theoretical foundations for constitutional change are discussed. The paper also considers some of the possible implications of the endless processes of making, unmaking and remaking constitutions. The critical question it tries to grapple with is how this unending process of constitution-building in Africa can be controlled in a manner that will ensure peace, political stability and provide a legitimate foundation for entrenching a firm culture of constitutionalism. In advocating for an entrenched permanent constitutional review commission to check against frequent and arbitrary constitutional changes, the paper argues that this is the best way for constitutional legitimacy to be sustained throughout the life of a constitution.
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Zemni, Sami. "The Extraordinary Politics of the Tunisian Revolution: The Process of Constitution Making." Mediterranean Politics 20, no. 1 (January 24, 2014): 1–17. http://dx.doi.org/10.1080/13629395.2013.874108.
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Mead, Sarah. "Protecting Popular Constituent Power: Examining New Zealand's Role in the Constitution-Making Episodes of the Cook Islands and Niue." Victoria University of Wellington Law Review 45, no. 4 (December 1, 2014): 577. http://dx.doi.org/10.26686/vuwlr.v45i4.4943.
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This article assesses the democratic legitimacy of the constitution-making processes that brought into being the Constitutions of the Cook Islands and Niue. New Zealand's role in the decolonisation of its former colonies has generally been seen as quite benign. New Zealand's status as an external actor, however, raises questions regarding the effect its influence had on the democratic legitimacy of the respective constitution-making processes. Constituent power theory demands that a constitution is the product of the popular political will; an act of self-determination undertaken by the people, for the people. This article argues that the existence of external influence in the constitution-making process is not necessarily at odds with this. In so far as external actors do not displace the people's constituent power but rather enhance it, there is no reason to exclude such influence; there may even be reason to encourage it. By drawing on New Zealand's experience in decolonisation, this article ultimately advances a two-stage model for constitution-making in the context of small, dependent non-self-governing island states. As ongoing political ties with an external state are often sought, the aim of the model is to provide an avenue for that external state to participate in or contribute to the constitution-making process while maintaining the process's democratic legitimacy.
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Sripati, Vijayashri. "The United Nation's Role in Post-Conflict Constitution-Making Processes: TWAIL Insights." International Community Law Review 10, no. 4 (2008): 411–20. http://dx.doi.org/10.1163/187197308x356949.
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AbstractThis essay analyzes how Third World Approaches to International Law (TWAIL) insights have illuminated some but not all themes relevant to understanding post-Cold War internationalised constitution-making processes such as those of Afghanistan and Iraq and the United Nation's (UN) constitutional support therein. It argues that the UN's constitutional support has evolved into an established practice and that the need to interrogate the very idea of the internationalisation of constitution-making, – essentially a domestic process – places the legitimacy of, and the explanations offered for such support into question. It concludes that given its historic opposition to and commitment to end the exploitative relations between the Western powers and the Third World and all contemporary colonial forms in the Third World, TWAIL is the best optic through which the UN's constitutional support in general and its role in the constitution-making process of Afghanistan, in particular, may be examined. For only then can the broader historical and ideological aspects and colonial continuities fundamentally significant to understanding internationalised constitution-making processes and the UN's role therein be uncovered.
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Škop, Martin. "Philosophical Approach to the Statutory Drafting." Acta Universitatis Lodziensis. Folia Iuridica 92 (September 10, 2020): 51–60. http://dx.doi.org/10.18778/0208-6069.92.04.
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This article traces the relationship between the law-making process and narratives. Undoubtedly, how statutes are created is a constitutional question, yet the Constitution regulates only part of this process. Constitution or any statute does not regulate parts of the legislative process implemented by the government (mostly preliminary phases). However, they are important and influence the remaining parts of the law-making process. This government’s activity is the sphere of informal regulation hidden from the primary control of the public. This article explores the importance of the bureaucratic elements of the law-making process with emphasis on a narrative approach: narratives justify legislature. How can we overcome the two lines of narratives – one produced by global capital and the other represented by national experience?
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Kyaw, Nyi Nyi. "PuttingTheir Guns on the Scale: Constitution-Making in Burma/Myanmar under Military Command." Chinese Journal of Comparative Law 7, no. 2 (August 19, 2019): 309–32. http://dx.doi.org/10.1093/cjcl/cxz010.
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Abstract The process of making the present Constitution of the Republic of the Union of Myanmar in Burma/Myanmar under the military dictatorship State Law and Order Restoration Council/State Peace and Development Council (SLORC/SPDC) from 1993 through to 2007 is rightly viewed as an undemocratic, repressive process. Both the citizens of Myanmar and the international community generally had no say in the whole process. Thus, the process may be viewed as one of resistance by the SLORC/SPDC against global constitution-making norms and practices, on the one hand, and local democratic politicians and groups, on the other hand. The Constitution that came into operation in January 2011 admittedly has highly undemocratic content. However, it undeniably has some democratic content that started bearing fruit, eventually culminating in the winning, in the November 2015 general election, and the coming to power of, the National League for Democracy party in March 2016. I trace the constitution making in Burma/Myanmar by expanding the time frame of analysis until 2016 and revisit the ‘resistance’ argument. Then I posit that the process is a double-pronged strategy by the SLORC/SPDC to, first, resist global and local pressures with the intention of, later, engaging with them when the time was perceived to be right and conducive to their interests.
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Baburoglu, Oguz N., and Gulru Z. Goker. "Going large scale: The Polling Conference process for participatory constitution making in Turkey." Action Research 12, no. 4 (June 9, 2014): 374–91. http://dx.doi.org/10.1177/1476750314538465.
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Lombardo, E. "Integrating or Setting the Agenda? Gender Mainstreaming in the European Constitution-Making Process." Social Politics: International Studies in Gender, State & Society 12, no. 3 (November 8, 2005): 412–32. http://dx.doi.org/10.1093/sp/jxi022.
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Mapuva, Jephias. "The trials and tribulations of constitutionalism and the constitution-making process in Zimbabwe." International Journal of Public Law and Policy 2, no. 4 (2012): 430. http://dx.doi.org/10.1504/ijplap.2012.049334.
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Negretto, Gabriel L. "Constitution-making and institutional design. The transformations of presidentialism in Argentina." European Journal of Sociology 40, no. 2 (November 1999): 193–232. http://dx.doi.org/10.1017/s0003975600007451.
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This paper presents an analytical framework for the study of constitutional design from the point of view of the structure of interaction and mechanisms of institutional selection that affect the behavior and choices of the actors involved in a constitution-making process. This framework is used to explain the various limitations introduced to the powers of the President in the Argentine constitution of 1994. I argue that two levels of causation determined this reform. At the macro level, the limitation of presidential powers was the outcome of a distribution of political resources and a configuration of preferences among the actors that made possible the resolution of conflicts by means of compromise. At the micro level, the new set of institutions derived from the limited influence of the incumbent executive over constitutional design, the pluralism of the constituent assembly that approved the constitution, and the prevalence of bargaining as a mechanism of collective decision-making. Both levels of action facilitated a consensual constitution-making process from which emerged a powersharing structure that has the potential to lower the stakes of political competition for presidential office and create new rules of mutual trust between government and opposition.
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Qadir, Adnan. "The Judicial Review of Law-Making Process in Iraq under the Constitution of Republic of Iraq-2005." ISSUE SIX 4, no. 6 (June 30, 2020): 37–49. http://dx.doi.org/10.25079/ukhjss.v4n1y2020.pp37-49.
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The law-making process as a whole vested in the legislative power in the presidential form of government, however in the parliamentary form of government, the executive power participates in the law-making through introducing bills along with legislative initiatives. The Constitution in Iraq grants an original authority to legislate federal laws to the Council of Representatives, however the executive power namely the President and the Council of Ministries participates in the process through introducing government bills to the Council of Representatives. Although the Constitution clearly identifies two methods through which bills shall be presented to the Council of Representatives, there have been disagreements over the constitutionality of laws legislated based legislative initiatives not government bills. The Federal Supreme Court has decided differently on different occasions by depriving the legislative power of its right to initiate in some cases or by putting restrictions in some other cases. This research analyzes the line drawn between the Council of Representatives and the executive power in the process of law-making at its first stage and then examines the Federal Supreme Court’s understanding in the light of the text of the Constitution.
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EISENSTADT, TODD A., A. CARL LeVAN, and TOFIGH MABOUDI. "When Talk Trumps Text: The Democratizing Effects of Deliberation during Constitution-Making, 1974–2011." American Political Science Review 109, no. 3 (August 2015): 592–612. http://dx.doi.org/10.1017/s0003055415000222.
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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 138 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 postpromulgation 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 front end of the constitution-making process, rather than concentrating on ratification and referendums at the “back end” that are unlikely to correct for an “original sin” of limited citizen deliberation during drafting.
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Landemore, Hélène. "When public participation matters: The 2010–2013 Icelandic constitutional process." International Journal of Constitutional Law 18, no. 1 (January 2020): 179–205. http://dx.doi.org/10.1093/icon/moaa004.
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Abstract Public participation in constitution-making is now both an established international norm and a widespread practice. But what does public participation really mean and when can it be said to matter? This article documents the case of public participation in constitution-making that took place in Iceland between 2010 and 2013. The Icelandic case is interesting both for the innovative ways in which the public was involved but also because public participation in the process can be shown to have made a causal difference to the resulting text. The quasi-natural experiment setup of the Icelandic constitutional process makes it possible to compare the textual output of expert groups and that of the non-professional politicians on the Constitutional Council who crowdsourced their work to the larger public. The comparison suggests that on some crucial aspects the more inclusively written text is marginally but significantly better than that written by experts alone.
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Amaechi, Chidi M., and Obinna U. Muoh. "Constitution Building as a Panacea to Identity Conflicts in Africa: The Case of Nigeria." Mediterranean Journal of Social Sciences 8, no. 4 (July 27, 2017): 17–26. http://dx.doi.org/10.1515/mjss-2017-0002.
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Abstract Africa is rife with sectional discontents which metamorphose into protracted conflicts, civil wars, and terrorism. With forlorn hopes of survival in the system and without a say in the constitution building process, disgruntled groups easily cloak their political and socio-economic dissatisfaction with ethnicity, religious or similar identities in order to arouse group affection. At present, Nigeria is at the brink of disintegration as a result of this problem. The country has witnessed about six constitutional arrangements since independence. Yet, the clamour for a new constitution remains constant and, invariably, influenced the convening of the 2014 National Constitutional Conference in the country. Since constitution building provides a good opportunity for the citizens and groups to enshrine their wishes in the instrument of governance and thereby preventing the degeneration of grievances into conflict, questions have continued to arise. Does the constitution making process in Nigeria involve the people for whom the laws are meant for? Are the leaders mindful of the peace potentials of constitution building? This paper seeks to ascertain the extent to which the citizens were involved in the making of the previous constitutions in Nigeria. It projects the view that the failures of the past attempts and the prevalent identity conflicts in Nigeria are attributable to non-adherence to the basic principles of the indispensable people-oriented process of constitution building.
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Regassa, Tsegaye. "The making and legitimacy of the Ethiopian constitution: towards bridging the gap between constitutional design and constitutional practice." Afrika Focus 23, no. 1 (February 25, 2010): 85–118. http://dx.doi.org/10.1163/2031356x-02301007.
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This article describes the making of the 1995 constitution of the Federal Democratic Republic of Ethiopia (FORE) and analyzes its implications for legitimacy. It contends that legitimacy of the constitution, which fosters fidelity to it, can –as one among other factors– help bridge the gap between constitutional design and constitutional practice. By making a process-content-context analysis of the constitution, it argues that the Ethiopian constitution which had a weak original legitimacy, can earn a derivative legitimacy through aggressive implementation. Aggressive implementation, it is maintained, demands fidelity to the constitution. Fidelity and other components of a redemptive constitutional practice (such as creative constitutional interpretation, constitutionally informed legislation, positive constitutional amendment, and constitutionally responsible voting) help deal with the perennial question of how to bridge the gap between constitutional design and constitutional practice in Ethiopia and beyond.
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Bangash, Yaqoob Khan. "Sovereignty and the Constitution." Journal of Law, Religion and State 7, no. 2 (April 4, 2018): 129–51. http://dx.doi.org/10.1163/22124810-00702001.
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The constitution of a country is the supreme national institution, and its provisions significantly affect the development of politics and society. The process of constitution making is key for understanding the constitution, and an assessment of the process makes possible a better and deeper understanding of the workings of the country, its politics, economy, and polity. The discussion of Islamic constitutionalism has recently gained momentum, especially in the wake of a reorganization of the Middle East and the Arab Spring. This paper focuses on the development of the first “Islamic” constitution, that of Pakistan, and analyzes the issues and problems it faced. It focuses on the issue of sovereignty, a concept underlying modern democracy, and uses the debates of the Constituent Assembly of Pakistan during the critical debate on the Objectives Resolution, in March 1949. The experience of Pakistan is seminal, as we historically understand and currently assess the issues of Islam, democracy, and the modern nation state.
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Bulmer, W. Elliot. "Building the ship in dry dock: The case for pre-independence constitution-building in Scotland." International Political Science Review 41, no. 5 (October 1, 2020): 681–94. http://dx.doi.org/10.1177/0192512120957701.
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For newly independent states, constitution-building can be a defining moment: a time when national identities are asserted, values and norms articulated, and founding myths created. The constitution-building process is a critical juncture between the divergent paths of stable and well-functioning democracy, on one hand, or persistent instability, coups, repression, and state failure, on the other. But what is the proper relationship of constitution-building to state formation? Should constitution-building occur before or after state formation? Or should the two processes somehow proceed in parallel? To address these questions in a Scottish context, this article draws on state-formation and constitution-building processes in the Westminster-derived tradition. The article considers the advantages and disadvantages of these sequences, and discusses the circumstances in which they might be applicable. It concludes by making some tentative recommendations for a pre-independence constitution-building process in Scotland.
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Prayitno, Cipto. "Pembatasan Perubahan Bentuk Negara Kesatuan dalam Undang-Undang Dasar 1945 dalam Perspektif Constitution Making." Jurnal Konstitusi 15, no. 4 (January 15, 2019): 732. http://dx.doi.org/10.31078/jk1543.
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Tulisan ini diarahkan untuk melihat tentang Pembatasan Perubahan atas Bentuk Negara Kesatuan Indonesia yang dituangkan dalam Pasal 37 Ayat (5) UUD 1945 sebagai bagian dari konsep pembentukan suatu konstitusi (constitution making) yang pada prosesnya tetap mempertahankan Bentuk Negara Kesatuan Republik Indonesia dan juga menetapkan sejak awal dalam Bab tentang Perubahan UUD 1945 dalam Pasal 5-nya untuk nantinya manakala ada perubahan haruslah mempertahankan Bentuk Negara Kesatuan Republik Indonesia. Hal ini tentu menjadi menarik jika dikaitkan dengan makna constitution making pembentukan konstitusi yang baik haruslah mempunyai tujuan salah satunya untuk semakin memperkuat persatuan nasional. Disisi tahapannya bahwa sebagai materi muatan perubahan UUD 1945, ternyata bahwa Bentuk Negara Kesatuan Republik Indonesia tetap dipertahankan dalam proses perubahan (agenda setting) melalui Kesepakatan Dasar dalam hal perubahan UUD 1945. Metodologi penelitian yang digunakan dalam penelitian ini adalah yuridis normatif dengan pendekatan sejarah hukum. Hasil penelitian dari tulisan ini dapat dilihat bahwa pembatasan perubahan bentuk NKRI terdapat tiga (3) aspek yang berkaitan dengan masalah tahapan atau proses perubahan UUD 1945 sebagai constitution making. Aspek pertama adalah bahwa pembatasan perubahan bentuk NKRI yang termuat dalam Kesepakatan Dasar adalah sebagai elemn-elemen atau hal yang dipertahankan dalam tahapan agenda setting. Aspek kedua adalah menjaga kontinuitas hukum dari bentuk NKRI yang sudah ada dalam UUD 1945 sebelum perubahan. Aspek ketiga adalah bahwa terhadap dampak atau konsekuensi hukumnya, bahwa Pasal 37 Ayat (5) UUD 1945 akan menempatkan bentuk NKRI sebagai elemen atau hal yang harus dimasukkan manakala ada perubahan UUD kelima tanpa harus melihat aspek kesejarahan sebagaimana dilakukan para perubahan pertama sampai keempat. Terakhir adalah bahwa dalam pandangan Yash Ghai, konsep pembatasan perubahan bentuk NKRI yang tertuang dalam Kesepakatan Dasar dan Pasal 37 Ayat (5) dapat dimaknai untuk menjaga dan mempertahankan persatuan nasional.This article attempts to analyse about restrictions to change the form of Unitary State of The Republic of Indonesia that explained in Article Number 37 Paragraph (5) 1945 Constitution of The Republic of Indonesia as part of the concept of constitution making, that in the process, the form of Unitary State of The Republic of Indonesia is still maintained. While in chapter about 1945 Constitution of The Republic of Indonesia changes Article 5 is stated that if there is changes, the form of Unitary State of The Republic of Indonesia has to be maintained. There is something interesting if it is associated with the meaning of constution making itself, that it should has a purpose to strengthen national unity. In fact, as content of constitution of 1945 Constitution of The Republic of Indonesia change, the form of Unitary State of The Republic of Indonesia is still maintained in agenda setting through basic agreement of 1945 Constitution of The Republic of Indonesia changes. Metodology ini this research used legasl research with historical approach perspective. In conclusion of this writings, stated that there is 3 aspects that related to the process of changes of 1945 Constitution of The Republic of Indonesia as the constitution making, in term of restrictions to change the form of Unitary State of The Republic of Indonesia. First, restrictions to change the form of Unitary State of The Republic of Indonesia that is implied in basic agreement act as elements that has to be maintained in process of agenda setting. Second, law continuity of form of Unitary State of The Republic of Indonesia has to be kept, as implied in 1945 Constitution of The Republic of Indonesia before amendment. Third, form of Unitary State of The Republic of Indonesia has to be included in fifth amendment as legal effect of Article 37 Paragraph (5) 1945 Constitution of The Republic of Indonesia without considering historical aspects as done in first to forth amendment. Lastly, in Yash Gai’s point of view, restrictions to change the form of Unitary State of The Republic of Indonesia concept that is implied in Basic Agreement and Article 37 Paragraph (5) can be interpreted to keep and to maintain national unity.
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Magnet, Joseph Eliot. "Constitution Making in Eritrea: Why It Is Necessary to Go Back to the Future." African Journal of Legal Studies 8, no. 3-4 (April 29, 2015): 237–72. http://dx.doi.org/10.1163/17087384-12342064.
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Eritrea went through a constitutional process from 1995 to 1997, which resulted in a text that provides for the rule of law, democratic institutions and human rights. The text was ratified by the National Assembly, but never implemented. The United Nations, the usa and the eu support the 1997 Constitution. They have called on Eritrea to “(i)mplement (it) fully and without further delay”. This recommendation is challenged here. Eritrea is multi-ethnic, multi-religious and multi-lingual. The 1997 Constitution creates a highly centralized Stalinist structure that experience teaches does not work in deeply diverse democracies. Eritrea requires a power sharing constitution, fabricated in a proper negotiated process. Implementing the 1997 Constitution would likely bring Eritrea’s two large nationalities into conflict with its eight smaller nationalities with high risk for violent civil strife that could spill over into neighbouring countries. This is concerning for geopolitics and would be devastating for human rights.
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Malagodi, Mara. "The Rejection of Constitutional Incrementalism in Nepal's Federalisation." Federal Law Review 46, no. 4 (December 2018): 521–40. http://dx.doi.org/10.1177/0067205x1804600403.
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The relationship between federalism and identity was the single most contentious issue in the drafting of Nepal's 2015 Constitution, and remains an embattled feature of the country's post-conflict constitutional settlement. This article explains why ‘constitutional incrementalism'—the innovative constitution-making strategy for deeply divided societies theorised by Hanna Lerner—was ultimately (and wisely) rejected in Nepal's federalisation process. Historically a unitary state since its creation in the late eighteenth century, Nepal committed itself to federal restructuring in 2007, but profound disagreements endured over the set of institutional choices concerning the features of Nepal's federal arrangements throughout the constitution-making process (2008–15). Constitutional incrementalism with its emphasis on deferral, ambiguity and contradiction was thought of in some quarters as a pragmatic and instrumental way out of Nepal's political impasse. In the end, the 2015 Constitution expressly named the provinces (even if by just using numbers) and demarcated their boundaries already at the time of its promulgation. Any changes to this framework can only take place by way of constitutional amendment. This article explains why the incrementalist approach was rejected in Nepal's federalisation process, and reflects on the conditions under which constitutional incrementalism may succeed in societies that present profound disagreements over the collective identity of the polity.
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Hindeya, Tilahun Weldie. "The Right to Self-Determination under the Ethiopian Constitution: A Legal Tool for Indigenous Peoples’ Protection against Land Alienation?" Journal of African Law 63, no. 3 (September 18, 2019): 359–83. http://dx.doi.org/10.1017/s0021855319000238.
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AbstractSince 2008 the Ethiopian government has allocated vast tracts of land, particularly in the Gambella and Benishangul-Gumuz regions, to agricultural commercial actors with little or no participation from indigenous communities. The marginalization of indigenous peoples in this process primarily emerges from the government's very wide legislative discretionary power regarding decision-making in the exploitation of land. The government has invoked constitutional clauses relating to land ownership and its power to deploy land resources for the “common benefit” of the people, to assert the consistency of this discretionary power with the Ethiopian Constitution. This article posits that the legislative and practical measures taken by the government that marginalize these indigenous peoples in decisions affecting the utilization of land resources are incompatible with their constitutional right to self-determination. Further, it posits that the government's use of the constitution to justify its wide discretionary power in the decision-making process relating to land exploitation is based on a misreading of the constitution.
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Oksana Vasylchenko. "POST-CONFLICT REGULATION: THE RULE OF LAW AND CONSTITUTION MAKING AS THE NUMBER ONE PRIORITY." World Science 2, no. 12(40) (December 30, 2018): 37–43. http://dx.doi.org/10.31435/rsglobal_ws/30122018/6274.
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Regardless of the cause of conflicts in a state, when the violence is ceased its aftermath should be dealt with. The most effective and targeted scenario of post-conflict regulation for every specific state would be designed and executed. The international community can play a crucial role in encouraging or combating peace process and building peace. The adjustment mechanism combines peacemaking with elements of nation-building, humanitarian action, transitional justice and recovery. One of the key elements of such a process involves possible revision, rewriting or even adoption of a new constitution to ensure an effective peace and security. In most cases, however, it is impossible to exclude the history and agreements that led up to a decision to make or re-make a constitution. Constitution building involves steps and sequences, and is not necessarily linear. Despite the important role that this process can play, little attention has been paid to the ways of developing and implementing participatory mechanisms and involving citizens in the process of creating a constitution conducive to a lasting peace. However, even developed in the best way constitutional and institutional framework cannot guarantee a stable democracy or permanent conflict resolution, although it can help it. Turning to the case of Ukraine, its Constitution needs changes though not that profound as in Africa for instance. Primarily, stabilization and conflict resolution in the east of Ukraine requires working towards the formation understanding of values and normative basis among people that will make intentions and practical measures of the current government legitimate and necessary in the eyes of the vast majority of the population. Ukraine should also take due notice of the complexity and comprehensive character of the process of peace building which hopefully will be launched in the nearest future.
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Park, Kwanghun, and Jungug Choi. "Democratic Legitimacy of Constitution-making Process: Five Post-War East Asian Countries in Comparative Perspective." Journal of Korean Politics 30, no. 1 (February 28, 2021): 1–34. http://dx.doi.org/10.35656/jkp.30.1.1.
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Hessebon, Gedion T. "The Precarious Future of the Ethiopian Constitution." Journal of African Law 57, no. 2 (July 18, 2013): 215–33. http://dx.doi.org/10.1017/s0021855313000090.
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AbstractThe current Ethiopian Constitution suffers from a severe lack of legitimacy. It lacks legitimacy as a result of a constitution-making process that was not inclusive, as well as the subsequent serious lack of integrity and vitality in the constitutional system. Therefore, if the ruling party, which is also the “author” of the constitution, were to lose its hegemonic position, which is predicated on its control of the security and military apparatus, there is a strong likelihood that there would be calls from significant political forces for a new constitution to be adopted. Such calls should not be heeded. Instead of adopting a new constitution, the current constitution's lack of legitimacy should be remedied by comprehensive constitutional reforms that would still maintain the basic architecture and cornerstones of the current constitution.
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Saati, Abrak. "Participatory Constitution-Building in Nepal – A Comparison of the 2008-2012 and the 2013-2015 Process." Journal of Politics and Law 10, no. 4 (August 16, 2017): 29. http://dx.doi.org/10.5539/jpl.v10n4p29.
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Participatory constitution-building is a trend that appears to be here to stay; particularly when new constitutions are drafted in the aftermath of war or during transitions from authoritarian to democratic rule. Anticipations as to what the involvement of the public will achieve are several, and scholars are only recently starting to systematically investigate whether or not these expectations find empirical support. Previous research has shown that public participation in the making of the constitution can have certain positive effects at an individual level of analysis, but that the actions of political elites during constitutional negotiations might affect outcomes at a macro level of analysis more than what has hitherto be acknowledged in this strand of research. Nepal is one of the most recent cases of participatory constitution-building, and the country carried out not only one, but two, such processes within a time period of only seven years. The first resulted in failure as a draft constitution was never finalized; the other in success with the adoption of a constitution in 2015. This article takes an interest in exploring and comparing these two separate processes as regards the extent of public participation vis-à-vis political elite negotiations and bargaining behind closed doors. The article finds that what primarily sets the two processes apart, is how broad based public participation and secluded elite negotiations were sequenced. In light of other empirical examples, the article also discusses if elite bargains ought to be struck before the general public are invited to participate.
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Cohen, Antonin. "Legal Professionals or Political Entrepreneurs? Constitution Making as a Process of Social Construction and Political Mobilization1." International Political Sociology 4, no. 2 (June 7, 2010): 107–23. http://dx.doi.org/10.1111/j.1749-5687.2010.00095.x.
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Et. al., Kawa Abdulkareem Sherwani,. "Minorities in Iraqi Constitution: A Critical Analysis of the Legal Discourse." Turkish Journal of Computer and Mathematics Education (TURCOMAT) 12, no. 2 (April 10, 2021): 286–90. http://dx.doi.org/10.17762/turcomat.v12i2.713.
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Between 1979 and 2003, when Baath party was in power in Iraq, minorities were neglected and were not part of the decision-making process. It was the priority of the new government that other components of Iraq where part of the process. The draft of the constitution of2005, in a number of provisions, do mention all the Iraqi components. However, no law has been passed to protect the rights of minorities and there is lack of appropriate mechanism to bring perpetrators to justice once violations have been committed against them. The data is taken from the English version of the Iraqi Constitution. The principles of critical discourse analysis areused as method to deconstruct the legal language of the constitution. This research undertakes a critical analysis of the legal discourseof the Iraqi Constitution and examines the provision of the constitution to highlight whether minorities in Iraq are protected under the constitution and whether the legal language of the constitutionis drafted in a way that is not vague or ambiguous to guarantee that protection. It is an attempt to investigate the legal language of Iraqi Constitution critically. The study concludes that the constitution was written in a way that may allow different interpretations, that is why it is difficult to be implemented with the available mechanisms. The study recommends that the constitution should be amended in a way that is inclusive of all minorities in Iraq and the provisions represent the quality between and among all the Iraqi components
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Trykhlib, Kristina. "Law-Making Activity in the Case Law of the Constitutional Court of Ukraine." International and Comparative Law Review 19, no. 2 (December 1, 2019): 27–75. http://dx.doi.org/10.2478/iclr-2019-0014.
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Summary The aim of this paper is to reveal and examine law-making elements in the jurisprudence of the Constitutional Court of Ukraine. It should be noted that the Constitutional Court has no direct powers to establish new legal norms under national legislation. However, in the process of constitutional interpretation, the case law of the Court demonstrates de facto the presence of law-making activity, that leads to the extension of its discretionary power on the formation of law. The paper will focus on the analysis of the practice of the Constitutional Court of Ukraine with regard to the ‘creative interpretation’ of law. A review of selected case law leads to a conclusion that the Constitutional Court often uses the dynamic interpretation of the Constitution. Moreover, the Court may change its own legal position in order to protect constitutional rights. Thus, the Constitutional Court of Ukraine has the right to ‘develop’ the law through evolutive interpretation of the Constitution. It can also be concluded that the Constitutional Court enjoys a wide ‘margin of appreciation’ in its interpreting of the Constitution.