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1
Fernando, Joseph M. y Ho Hui Ling. "British and Commonwealth legacies in the framing of the Malayan constitution, 1956–1957". Britain and the World 8, n.º 2 (septiembre de 2015): 181–203. http://dx.doi.org/10.3366/brw.2015.0190.
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The drafting of a constitution is a complex consultative process. No country, including the United States and India, can claim that its constitution was entirely the original creation of its draftsmen. Framers of constitutions are inspired and influenced by a variety of sources from ancient and modern forms of government and laws. The 1957 Malayan federal constitution drafted by the Reid commission was no exception. While it is known that the drafting of the Malayan (now Malaysian) constitution was influenced by Commonwealth constitutions, the extent of this influence has remained unclear. This article reveals through a close scrutiny of the primary constitutional documents that the framing of the Malayan constitution was mainly influenced by three connected yet varied sources of constitutionalism. Their influences can be discerned at two inter-related levels. At the first level, it is clear that the underlying constitutional principles which formed the foundations of the Malayan constitution were largely based on English constitutionalism and principles of Common law. At the second and more visible level, this article reveals that the drafting of the Malayan constitution was largely influenced by two contemporary Commonwealth constitutions which served as the main reference templates for the framing of the articles.
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Orozco Pulido, Jesús Manuel. "Drafting a Constitution Is Not Drafting a Statute: An Analysis of the Mexican Constitution and Hyper-Amending Pathologies from the Legislative Drafting Perspective". Mexican Law Review 13, n.º 1 (2 de julio de 2020): 203. http://dx.doi.org/10.22201/iij.24485306e.2020.1.14814.
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This note critically examines the way the Mexican Constitution has changed since it was originally written, due to a large number of amend¬ments. Through 239 decrees of constitutional reforms, which represent 732 modifications to constitutional articles, the current constitutional text is not the same document that arose from the Mexican Revolution. This vertiginous chan¬ge is analyzed from the perspective of theoretical and practical notions of legis¬lative drafting in common law countries. A huge number of reforms demons¬trates a constitution’s volatility, and the way reforms are written has a direct impact on whether or not it is observed. In fact, a proper process of redaction in legislative drafting can provide ideas for improving the quality of legislation. Reforming the constitution, as has been done by Mexican constituent powers, can overload the fundamental text with specific rules, rather than principles. An excessive use of words, an arbitrary use of subdivisions and an excessive num¬ber of transitory norms are common elements of constitutional amendments. Some specific traits of those amendments are analyzed in order to propose ways to improve the efficacy of the constitution through a better legislative drafting process for reforms. All of this in order to reach a better level of comprehension of the normative purpose of amendments by their final recipients: citizens and institutions.
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Shattib, Mohammed Saleh. "The Egyptian political system (A comparative study between the constitutional 2012-2014)". Tikrit Journal For Political Science, n.º 16 (2 de julio de 2019): 163. http://dx.doi.org/10.25130/poltic.v0i16.145.
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The research have focused on the ramifications of the" 25 January revolution" on the Egyptian constitution and how the masses in which participated in the revolution aimed a rapid democratic transition through the writing of a new constitution in order to be inevitable document leading to their salvation from authoritarianism and false constitutions that had become outmoded.
Although the Egyptian constitutional experience, From the wording perspective, have many positive aspects; but the process of drafting is requiring consensus about constitution, basically agree on the basic philosophy in which the Constitution is based on, or the purpose of drafting the Constitution itself, at the same time, the goal is absent from the Egyptian experience. Also, the political factions that carried the banner of change after the" 25 January revolution" was not able to answer the following question: What is the purpose of drafting a new constitution to replacing "the 1971 Constitution"?. This situations led to the intensification of division and conflict among factions, in addition, excluded the most important political faction.
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EISENSTADT, TODD A., A. CARL LeVAN y TOFIGH MABOUDI. "When Talk Trumps Text: The Democratizing Effects of Deliberation during Constitution-Making, 1974–2011". American Political Science Review 109, n.º 3 (agosto de 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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Abubaker, Habiba. "Empirical Research on Constitutional Drafting Processes Following War or Internal Disturbances in Iraq, Tunisia, Kosovo and Sudan". Max Planck Yearbook of United Nations Law Online 23, n.º 1 (3 de diciembre de 2020): 314–39. http://dx.doi.org/10.1163/18757413_023001011.
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Constitutional drafting is a complex procedure. Every year, nonetheless, the world witnesses the birth of several constitutions. The drafting of constitutions, however, differs greatly from one to the other; this depends mainly on the state of affairs in each State and the causes behind the need for a new constitution. In post-conflict States, the success of the constitutional drafting process depends on various factors including, inter alia, the inclusiveness of the process; transparency; equal representation in the bodies involved in the drafting; public participation; as well as the role the international community plays. All of these factors have great implications on the success, or failure, of not only the constitutional drafting process, but also on the whole peace-building process in post-conflict societies. In other words, a successful constitutional drafting process must be nationally-led and owned while targeting the root causes of the conflict. While it may be aided by international components, the process must reflect the geo-ideological differences within a State, whether cultural, tribal, ethnic or religious. This article gives an empirical account of the constitutional drafting processes adopted as a consequence of internal conflict in Iraq, Tunisia, Kosovo, and Sudan. The paper discusses the general drafting process; the bodies involved; procedural shortcomings; and any international influence.
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Khaled Abdulrahman, Aveen. "الصياغة الدستورية و أثرها على تفسيرات المحكمة الأتحادية العليا في العراق". Journal of duhok university 23, n.º 2 (19 de diciembre de 2020): 169–86. http://dx.doi.org/10.26682/hjuod.2020.23.2.10.
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The constitutional drafting stage is one of the stages in writing the constitution, which is a process of transferring ideas and principles from their philosophical-intellectual framework to a linguistic framework through a set of expressive words and methods or to make them implement valid, and through fit drafting that able to reach the truth. there are many methods of constitutional drafting, between hard drafting which is specified to the obligation and judgment, and the soft drafting which is not specified that leaves the interpreter for discretionary authority to interpret according to the circumstances and facts, as well as there is ambiguous drafting in which the intention of the legislator cannot be easily known and the fluctuating drafting in which the constitutional drafter handles to fix the same topic, but in different formulations, which leads to ambiguity of the intention of the legislator, and the drafter of the Iraqi constitution in 2005 relied on more than one method in drafting the texts of the constitution, and we show how some of these formulations had a negative impact on the decisions of the Iraqi Federal Supreme Court when exercising its jurisdiction in interpreting the constitution until some of them generated a political and legal controversy at the same time.
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Hutt, Michael. "Drafting the Nepal Constitution, 1990". Asian Survey 31, n.º 11 (1 de noviembre de 1991): 1020–39. http://dx.doi.org/10.2307/2645305.
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Kaminski, John P. y Wilbourne E. Benton. "1787: Drafting the U.S. Constitution". Journal of the Early Republic 7, n.º 1 (1987): 79. http://dx.doi.org/10.2307/3123430.
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Hutt, Michael. "Drafting the Nepal Constitution, 1990". Asian Survey 31, n.º 11 (noviembre de 1991): 1020–39. http://dx.doi.org/10.1525/as.1991.31.11.00p01067.
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Васильева, Татьяна y Tatiana Vasilieva. "Constitutional Reforms in the Digital Era: the Iceland’s Experience". Vestnik of the St. Petersburg University of the Ministry of Internal Affairs of Russia 2019, n.º 3 (15 de octubre de 2019): 55–62. http://dx.doi.org/10.35750/2071-8284-2019-3-55-62.
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Digital era creates new opportunities for citizens for participation in political and legal decision-making process at various levels. Currently, the practice of involving citizens in drafting of laws and even constituent acts is spreading in foreign countries. The draft of the Constitution of Iceland of 2011 was adopted by the Constitutional Council, which included ordinary citizens, not representatives of the political elite. By the use of social media and the official website, the Council was able to establish direct contacts with the population and promptly respond to suggestions and comments of citizens. Not only citizens, but also foreigners could submit their proposals on issues which should be reflected in the text of the Constitution, comments on the wording of certain articles and participate in the stress test of the constitutional draft. This approach has legitimized the process of the Constitution drafting and created a sense of ownership among those who participated in the discussion. Although this draft has not become the Constitution because of the lack of the Parliament’s support, the Iceland’s experience may be interesting as a new approach to drafting laws in the digital era. The Icelandic experience was considered unprecedented and revolutionary. It showed that the process of Constitution drafting could be more open and democratic without incur-ring significant financial costs.
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Škop, Martin. "Philosophical Approach to the Statutory Drafting". Acta Universitatis Lodziensis. Folia Iuridica 92 (10 de septiembre de 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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Ruiz Estévez, María. "Comparison between the Polish-Lithuanian Constitution of 3 May 1791 and the Spanish Constitution of 19 March 1812". Studia Iuridica Lublinensia 30, n.º 1 (31 de marzo de 2021): 237. http://dx.doi.org/10.17951/sil.2021.30.1.237-250.
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<p>The purpose of this article was to make a brief comparative analysis between the Spanish Constitution of 1812 and the Polish-Lithuanian Constitution of 1791. With this intention, the most characteristic features of each constitutional text were set out, and both the historical and social context prior to its promulgation and the circumstances that led to the drafting of both legal acts were analyzed. The similarities and contrasts of the political models established with both constitutions were observed, as well as the rights and freedoms recognized. Reference was also made to the founding fathers of the Constitutions and the ideological context that influenced them. Finally, the author mentioned the fate of both constitutions that were only in force for a short period of time. The article aimed to present these two legal acts that were a milestone in the constitutional and political history of each nation.</p>
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Meyer Resende, Madalena. "A Holy Alliance between the Catholic Church and Constitution-Makers? The Diffusion of the Clause of Cooperation in Third Wave Democracies". Politics and Religion 11, n.º 1 (8 de mayo de 2017): 55–78. http://dx.doi.org/10.1017/s1755048317000311.
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AbstractWhat explains the adoption of the regime of cooperation between church and the state in the democratic constitutions of Spain and Poland, while Portugal maintained a regime of strict separation in the United States and French tradition? The explanation could be that a consensual constitution-making process resulted in a constitutional formula accommodating religion and guaranteeing religious freedoms. Alternatively, the constitutional regime of cooperation could result from the diffusion of international norms to national constitutions, in this case, the cosmopolitan law of the church. The article process-traces the constitution drafting processes and finds that the emergence of a constitutional consensus among secularist and constitutional drafters in Spain and Poland was based on the Vatican Council II doctrine and facilitated by the intervention of the Catholic hierarchies. In Portugal, the violent context of the revolution excluded the church, and the constitutional regime of strict separation between church and state was adopted.
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Kenny, David. "The Virtues of Unprincipled Constitutional Compromises: Church and State in the Irish Constitution". European Constitutional Law Review 16, n.º 3 (septiembre de 2020): 417–39. http://dx.doi.org/10.1017/s1574019620000218.
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Constitution making – Disagreement – Principled constitutionalism versus unprincipled bargaining – Pragmatism – Church and state – Separation of religion and law – Maintaining religious peace – Drafting of the Irish Constitution of 1937 – Placating Irish Catholicism – Accommodation of protestant religious minority – Balancing religious freedom and religiosity – Balancing fundamental rights and religious influence – Flexibility and adaptability – Pragmatic assessment of constitutions and constitution making
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VERSTEEG, MILA y EMILY ZACKIN. "Constitutions Unentrenched: Toward an Alternative Theory of Constitutional Design". American Political Science Review 110, n.º 4 (noviembre de 2016): 657–74. http://dx.doi.org/10.1017/s0003055416000447.
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T his article highlights a gap between a great deal of constitutional theory and a great deal of the practice of democratic constitution-making. Drawing on data from democratic national and state constitutions, we challenge the consensus among constitutional theorists that a central purpose of constitutionalism is the entrenchment (the fortification against future change) of broad principles. The empirical reality is that the majority of democratic constitutions today are subject to frequent revision, and are therefore ill-equipped to facilitate the entrenchment of their contents. To explore the logic of these unentrenched documents, we identify the historical periods in which different geographic regions moved away from highly entrenched constitutions, and we examine the political contexts of these transformations. We find that, in each context, constitution-makers were attempting to limit the discretion of constitutional interpreters and implementers by drafting highly specific texts and by updating them in response to continually changing circumstances.
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Lerner, Hanna y Amir Lupovici. "Constitution-making and International Relations Theories". International Studies Perspectives 20, n.º 4 (19 de julio de 2019): 412–34. http://dx.doi.org/10.1093/isp/ekz007.
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Abstract Constitution-making has become an intrinsic component of international politics, nevertheless, international relations scholars largely refrain from theorizing it tending to view formal constitutional drafting as a domestic project. The article proposes an understanding of constitution-making as an international (in addition to national) political phenomenon. We develop a new and comprehensive classification of international influences on constitution-making. We also demonstrate how the empirical study of constitution-making can illuminate overlooked areas of research and challenge existing international relations theories. Our focus here is on the study of international norms. We present three theoretical insights concerning the emergence of international norms, their dissemination, and the role of epistemic communities in facilitating their expansion. We conclude by highlighting how the interaction between international and domestic factors in the crafting of constitutions further challenges the disciplinary distinction between domestic and international politics.
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Brown, Nathan J. "Reason, Interest, Rationality, and Passion in Constitution Drafting". Perspectives on Politics 6, n.º 4 (13 de noviembre de 2008): 675–89. http://dx.doi.org/10.1017/s1537592708081851.
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Liberal constitutionalism is founded in part on a desire to build a polity on the basis of reason and the public interest. At its most ambitious, the result can verge on a prepolitical or even apolitical view of constitution writing. To be sure, most liberal constitutionalists have backed away from the extreme view by increasingly recognizing that passion and bargaining will inevitably play a role in constitution writing. But few have moved beyond grudging acceptance of passion and bargaining to active incorporation. In addition, the terms themselves are used in increasingly slippery ways. Yet while greater terminological precision is desirable and possible, it cannot overcome a key feature of constitution drafting: reason and interest are easily confused in practice as are passion and rationality. Even if reason and deliberation over the public interest could be distinguished from passion and private bargaining, they are unlikely to be able to deliver what is demanded of them. Constitutional politics differs from normal politics less in the role for rationality and the public interest and more in the means used and the number of actors with veto power. In such an environment, partisan interest and passion are not merely inevitable contaminants but essential elements.
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El-Shahed, Karim Mahmoud. "Drafting the Egyptian Constitution: a Comparative Analysis Between the Drafting Committees of the 2012 and 2014 Constitutions". A&C - Revista de Direito Administrativo & Constitucional 20, n.º 79 (29 de marzo de 2020): 13. http://dx.doi.org/10.21056/aec.v20i79.1308.
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Grami, Amel. "The debate on religion, law and gender in post-revolution Tunisia". Philosophy & Social Criticism 40, n.º 4-5 (27 de marzo de 2014): 391–400. http://dx.doi.org/10.1177/0191453714526405.
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In a society transitioning to democracy from an authoritarian regime, drafting a new constitution is an important step in the establishment of a civil and democratic state. Indeed, the demand of Tunisians to write a new constitution reflects their ambitions, aspirations and hopes; but reality shows a huge gap between the expectations of the majority of Tunisians and the result of the drafting process. The Tunisian transition is characterized by a fierce debate between the secular and the religious forces. This unfolding confrontation forms the backdrop to the process of drafting a new constitution, amid anxiety surrounding the place of Islam in the new political system. However, fears of the resurrection of a new theocratic dictatorship are mitigated by a dynamic civil society in which voices that were silenced or misused by the former regime of Zine Al-Abidine Ben Ali are becoming distinctly vocal. Their action has become increasingly visible, evolving around the place of religion, law and gender in the new constitutional framework. This article focuses on the debate on religion, law and gender in post-revolution Tunisia.
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Suharno, Suharno, Amir Junaidi y Muhammad Aziz Zaelani. "Embodying The Meaning Of The Guardian Of The Constitution In The Role Of The Constitutional Court Of Reducing Constitutions Indicated By Policy Corruption". International Journal of Educational Research & Social Sciences 2, n.º 3 (29 de junio de 2021): 592–99. http://dx.doi.org/10.51601/ijersc.v2i3.88.
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Purpose of this study was to answer two problems: (i) how is the guardian of the constitution embodied through the function of the Constitutional Court; and (ii) how the Constitutional Court as the guardian of the constitution reduces constitutions that are indicated by the policy corruption. Policy corruption is an invisible and covert element that able to threaten the synergy of the legal system and the public interest. The form of policy corruption is realized in the form of a law. Efforts that can be made to reduce the policy corruption are to implement the tight control over the media, which in this case is relevant to the function of the Constitutional Court. This studywas classified as doctrinal research with primary and secondary legal materials. Comparative approach and case approach were used to answer the legal issues. The results showed that: First, the guardian of the constitution through the function of the Constitutional Court through the optimization of the Constitutional Court Judges as the agent of constitution, strengthening the execution of the Constitutional Court decisions and collaborative steps with other state institutions in enforcing the constitutional guardianship. Second, the Constitutional Court as the guardian of the constitution in reducing laws indicated by the policy corruption is manifested in the form of a Constitutional Court decision that can be retroactive to recover the impact of legal losses that are indicated by the policy corruption, the decision of Constitutional Courtis justified by ultra vires to anticipate the chain of constitutions that indications of policy corruption, the decision of Constitutional Courtis strengthened in terms of its execution and the Court can examine or test the Constitution Drafting (bill/ RUU) (a priori review) as a preventive measure to prevent the enactment of laws that indicate policy corruption.
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Tadros, Mariz. "Negotiating Women in Egypt's Post-Mubarak Constitutions (2012–2014)". Politics & Gender 16, n.º 1 (13 de marzo de 2019): 145–73. http://dx.doi.org/10.1017/s1743923x18001046.
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This paper presents a comparative “gender audit” of Egypt's two constitutions (2012, 2014) developed after a people's uprising in 2011 and 2013 led to the ousting of two presidents (Mubarak and Morsi respectively). Egypt's two constitutions are particularly compelling for the study of gender politics in transitional constitutionalism because while the number of women participating in the constitution writing process was very similar, the gendered outcomes were starkly different. While the political opportunity for mobilizing around women's rights was enhanced in the aftermath of Mubarak's demise, the capitalization of these opportunities by organized political forces with an anti-feminist agenda undermined the prospects of en-gendering the first post-Mubarak constitution. In contrast, the constitution of 2014, developed under severely circumscribed political space inhibiting women's mobilization, witnessed the exercise of women's constitutional agency to redress the containment of women's rights under the previous constitution and en-gender many elements of it, though the extent of its enforceability remains obscure. This paper draws on primary and secondary data to analyse, through a gender lens, the processes and outcomes involved in constitution drafting along three axes:context and political opportunity structures; coalitional politics, and political and ideological struggles.
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Baack, Ben, Robert A. McGuire y T. Norman Van Cott. "Constitutional Agreement during the Drafting of the Constitution: A New Interpretation". Journal of Legal Studies 38, n.º 2 (junio de 2009): 533–67. http://dx.doi.org/10.1086/597327.
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WARREN, MICHAEL. "A Case Study in Federalism - the United States and Michigan Constitutions: Not Double Vision, Double Constitutions". Michigan Academician 47, n.º 2 (1 de enero de 2021): 202–19. http://dx.doi.org/10.7245/0026-2005-47.2.202.
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ABSTRACT Each citizen in America lives under two Constitutions - the United States, federal Constitution which applies to all citizens, and the constitution of the state in which the citizen lives. Often overlooked and basically unknown, the state constitutions play a vital role in governance and preserving our unalienable rights. Perhaps the best way to understand each constitution is to compare and contrast them. Accordingly, as a case study, this article examines the age, length, predecessors, drafting process, conventions, ratification process, and amendment procedures of the State of Michigan Constitution of 1963 and the U.S. Constitution. Furthermore, this article examines how each of these constitutions addresses the separation of powers, legislature, executive, judiciary, local government, transportation, education, finance, taxation, and the protection of unalienable rights. Armed with this understanding, we will be better informed citizens, and more ably equipped to participate in self-governance and protect the unalienable rights of the citizenry. Note: At times this article quotes constitutional text which refers to “he” or “him.” The grammatical convention at the time was to make masculine all generic gender references. That this article quotes the text does not equate to an endorsement of the convention nor did the drafters intend that only men could serve as public officials.
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Negretto, Gabriel. "Constitution-making and liberal democracy: The role of citizens and representative elites". International Journal of Constitutional Law 18, n.º 1 (enero de 2020): 206–32. http://dx.doi.org/10.1093/icon/moaa003.
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Abstract This article discusses the impact of citizen participation and elite cooperation in constitution-making on the deepening of an already existing electoral democracy. It argues that while direct citizen involvement in the drafting of constitutions may be desirable on normative grounds or necessary for pragmatic reasons, only cooperation among a plurality of elected political representatives at the constitution-making stage is likely to improve the liberal dimension of democracy after the enactment of the new constitution. Inclusive constitutional agreements at the level of representative elites not only establish legal limits on state action but may also provide opposition parties and citizens alike with the means to make institutional constraints on executive power and civil liberties effective. This effect is usually observed during the early years of life of the new constitution, when the balance of power among the political forces that created the constitution tends to remain stable. I find preliminary support for this argument analyzing aggregate data and selected case studies from all episodes of democratic constitution-making in the world between 1900 and 2015.
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Guthrie, Brynne. "‘Guardian of the Solemn Pact’ – The Role of the Constitutional Court in South Africa’s Constitutional Transition". Max Planck Yearbook of United Nations Law Online 23, n.º 1 (3 de diciembre de 2020): 355–85. http://dx.doi.org/10.1163/18757413_023001013.
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The Constitutional Court of South Africa has played a unique role in the country’s constitutional transition. This paper starts by detailing the historical and political context of the Interim Constitution which created the Constitutional Court and the constitutional principles. The article describes the approach of the Court in the First Certification Judgment (1996), analysing the impact of the Constitutional Court’s decision on the drafting of the final Constitution and the public more generally, before briefly outlining the role that the Court continues to play in protecting constitutional democracy as a ‘Guardian of the Solemn Pact’.
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Gageler, Stephen. "Sir Robert Garran: Medio Tutissimus Ibis". Federal Law Review 46, n.º 1 (marzo de 2018): 1–17. http://dx.doi.org/10.22145/flr.46.1.1.
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Sir Robert Randolph Garran (10 February 1867-11 January 1957) played a unique role in the early development of the Commonwealth. As Secretary to the Drafting Committee of the Australasian Federal Convention of 1897 and 1898, he was intimately involved in the process by which the Australian Constitution was produced. As Secretary of the Attorney-General's Department from 1901 to 1932, he was responsible for drafting foundational Commonwealth legislation and he played a key part in establishing coherent interpretations of the Constitution in advice to successive Federal Governments. Three aspects of Garran's life and work are explored in this article: the popular movement which established the process by which the Constitution was negotiated, drafted, and submitted to referenda for approval; Garran's tenure and legacy as Secretary of the Attorney-General's Department; and Garran's views on federalism and constitutional law.
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Ziller, Jacques. "National Constitutional Concepts in the New Constitution for Europe". European Constitutional Law Review 1, n.º 2 (19 de mayo de 2005): 247–71. http://dx.doi.org/10.1017/s1574019605002476.
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Notion of constitutional concept varies over time and space. Constitution for Europe as a further step in guaranteeing rights and separating powers. Amongst others French, Italian, German and Swedish national concepts in the Treaties of the European Communities and of the European Union. Several causes for difficult tracing of national concepts in the Constitution for Europe. Convention method: instead of by diplomats and EU experts, drafting by members of Parliament and (former) members of Government. More room for national concepts. The Intergovernmental Conference: the Empire strikes back, but with mixed impact. Parallels with other constitution making procedures. Concept of constitution: structure and size no argument for denying constitutional character; Constitution octroyée v. contrat social; Franco-American revolution v. British tradition.
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Fliegelman, Oren. "The Question of Education in the 2014 Tunisian Constitution: Article 39 and its Ambiguous Values". Middle East Law and Governance 8, n.º 1 (19 de julio de 2016): 1–31. http://dx.doi.org/10.1163/18763375-00801002.
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Despite Tunisia’s remarkable transition from dictatorship to democracy following the Tunisian Revolution, only a few of the hotly debated articles in the country’s new constitution have been analyzed by scholars. This article examines one of those under-analyzed constitutional provisions: Article 39, on education, whose language on religious and national values was repeatedly contested throughout the two-year drafting process. Using internal National Constituent Assembly documents and delegate voting records, the article explains how the education article transformed dramatically throughout drafting, ending in a controversial last-minute compromise accepted on the final day of voting. It provides insight on the broader constitution, which has been criticized for inconsistency, by showing how opposing interests largely amended the article's language into ambiguity. It also shows that the nca can be used as a model for exploring the convoluting impact quick votes in a constitution-making body’s plenary assembly can have on work produced by the body’s specialized committees.
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Langford, Malcolm y Ananda Mohan Bhattarai. "Constitutional Rights and Social Exclusion in Nepal". International Journal on Minority and Group Rights 18, n.º 3 (2011): 387–411. http://dx.doi.org/10.1163/157181111x583341.
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AbstractIn Nepal, poverty is highly correlated with an individual's ethnicity, caste, language, religion or membership in an indigenous group. In the drafting of the new Constitution, many have called for inclusion of socio-economic and affirmative action rights in order to address social inequalities. This article sets out to assess these demands in an international and domestic context. After this socio-political background is set out in the introduction, section 2 provides a comparative and international analysis of the debates, trends and jurisprudence concerning the constitutional inclusion of equality and socio-economic rights. Section 3 examines the constitutional history of Nepal on this topic with a particular focus on the jurisprudence of the Supreme Court, and section 4 assesses the consequences of this experience for the constitutional drafting process. Section 5 analyses the current draft bill of rights and provides some thoughts on the possible future directions for the constitutional drafting and jurisprudential responses.
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Evans, Simon. "Property and the Drafting of the Australian Constitution". Federal Law Review 29, n.º 2 (junio de 2001): 121–50. http://dx.doi.org/10.22145/flr.29.2.1.
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Bannon, Alicia L. "Designing a Constitution-Drafting Process: Lessons from Kenya". Yale Law Journal 116, n.º 8 (1 de junio de 2007): 1824. http://dx.doi.org/10.2307/20455777.
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Atienza, Ma Ela L. "Drafting the 1987 Constitution The Politics of Language". Philippine Political Science Journal 18, n.º 1-2 (8 de diciembre de 1994): 79–101. http://dx.doi.org/10.1163/2165025x-0180102004.
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Atienza, Ma Ela L. "Drafting the 1987 Constitution The Politics of Language". Philippine Political Science Journal 18, n.º 37-38 (diciembre de 1994): 79–101. http://dx.doi.org/10.1080/01154451.1994.9754188.
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Delacroix, Sylvie. "Drafting a Constitution for a “Country of words”". Middle East Law and Governance 4, n.º 2-3 (2012): 306–25. http://dx.doi.org/10.1163/18763375-00403001.
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Can words – rather than a State (or army) – constitute a country? It may be made of land, rivers, forests or deserts – yet, without its inhabitants’ words, there would be no map to draw, no tale to sing, no country to speak of. Palestinian tales abound. They speak of departed lands, vanished homes, forfeited livelihoods. They lament internal wrangling, squeal occupational anger, seek to whisper away those quotidian checkpoint humiliations. Yet, they also speak of hope. If there ever were such a thing as “authoritative hope”, the ongoing Palestinian constitution drafting process may be it. But hope cannot be formalized, let alone authorized. And there is some danger in pretending otherwise.
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Evans, Simon. "Property and the Drafting of the Australian Constitution". Federal Law Review 29, n.º 2 (junio de 2001): 121–50. http://dx.doi.org/10.1177/0067205x0102900201.
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Arlyck, Kevin. "The Closing of the Constitution". Law and History Review 37, n.º 03 (agosto de 2019): 861–66. http://dx.doi.org/10.1017/s0738248019000476.
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Anyone who picks up a recent volume of the United States Reports or a prominent legal journal will be sure to find judges and lawyers debating, in agonizing detail, the meaning of a particular word or phrase in the Constitution. Marshaling late-eighteenth century dictionaries and legal treatises, records of debates from the drafting and ratifying conventions, and well-thumbed copies of the Federalist Papers, modern constitutional interlocutors will scrutinize text, structure, and history to discern an inherent logic. Above all, although disputants will endlessly contest what a particular provision means, they largely agree on what the Constitution itself is: as Jonathan Gienapp puts it in The Second Creation: Fixing the American Constitution in the Founding Era, “an artifact circumscribed in time and space,” the “fixed Constitution” that we have been collectively dissecting since the late 1780s (10).
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Pekane, Ted. "Totstandkoming van de Grondwettelijke Krachtlijnen Voor Een Democratisch Zuid-Afrika". Afrika Focus 5, n.º 1-2 (15 de enero de 1989): 79–90. http://dx.doi.org/10.1163/2031356x-0050102005.
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The Realization of the Constitutional Guidelines for a Democratic South Africa Africa Focus publishes a Dutch translation of the “constitutional guidelines for a democratic South Africa”, adopted in March 1988 at Lusaka, by the African National congress (ANC), together with a preface (by F. Reyntjens) and an extensive introduction written by Ted Pekane, member of the constitutional committee of the ANC, about the drafting ofthis important text. In the preface is referred to the political signification of a constitutional text in Africa today and to the more pragmatic content of the guidelines, compared to the Freedom Charter of 1955. T. Pekane explains the external factors that contributed to the drafting of the guidelines. He also points out the dangers of the “ acceptable” models of constitution for the post-Apartheid period advanced by internal and external forces: a lot of those models are discreet options for a status-quo.
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Kendall, Sara. "Inscribing the State: Constitution Drafting Manuals as Textual Technologies". Humanity: An International Journal of Human Rights, Humanitarianism, and Development 11, n.º 1 (2020): 101–17. http://dx.doi.org/10.1353/hum.2020.0000.
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al-Akhssassi, Mohamad. "Reforms in Morocco: monitoring the orbit and reading the trajectory". Contemporary Arab Affairs 10, n.º 4 (1 de octubre de 2017): 482–509. http://dx.doi.org/10.1080/17550912.2017.1343838.
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Since 2011, Morocco has been undergoing a series of political, constitutional and institutional reforms, including the issue of rights. These reforms were a response to the February 20 movement that emerged against the background of the Arab Spring. Prompted by this movement and its nationwide protests, the King of Morocco delivered a speech in March 2011 on reform and modernization, resulting in the rapid drafting and adoption of a new Moroccan constitution in June 2011. After a referendum on the constitutional reforms in July 2011, parliamentary elections were held in which a coalition government led by the Justice and Development Party (JDP) came to power. This paper analyzes the context of the 2011 constitution and assesses the trajectory of the constitutional reforms up to 2015.
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Faughnan, Seán. "The Jesuits and the drafting of the Irish constitution of 1937". Irish Historical Studies 26, n.º 101 (mayo de 1988): 79–102. http://dx.doi.org/10.1017/s0021121400009457.
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In July 1987, the private papers of Éamon de Valera relating to the drafting of the Irish constitution of 1937 were opened to the public for the first time. The purpose of this paper is to examine, in the light of this material, which is held in the Francisan House of Studies, Killiney, County Dublin, and of documents now available in the Irish Jesuit Archives, the contribution of a number of Jesuit priests to the drafting of this constitution.On 24 May 1934, Éamon de Valera, president of the executive council, set up a committee of four civil servants to examine the Irish Free State constitution of 1922. Its membership consisted of Stephen Roche, secretary of the department of justice (committee chairman), Michael McDunphy, assistant secretary of the department of the president (committee secretary), Philip O’Donoghue, assistant to the attorney general, and John Hearne, legal adviser in the department of external affairs who, with de Valera, was to prove to be the principal architect of the 1937 constitution. It is clear from the minutes of this committee that its members were initially under the impression that what de Valera was seeking was a wholly new constitution. Thus, at its second meeting it was ‘agreed that the report of the committee should take the form of an entirely new constitution’. It soon became clear, however, ‘as a result of pronouncements by the president and of conversations which individual members of the committee had with him’, that what he really wanted was not a new constitution but ‘a selection within the framework of the present constitution of those articles which should be regarded as fundamental’ and ‘a recommendation as to how these should be rendered immune from alteration by ordinary legislation’.
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Milosavljevic, Boris. "Drafting the constitution of the Kingdom of Serbs, Croats and Slovenes (1920)". Balcanica, n.º 50 (2019): 225–44. http://dx.doi.org/10.2298/balc1950225m.
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The Kingdom of Serbs, Croats and Slovenes was internationally recognized during the Paris Peace Conference in 1919-20. Even though there was neither a provisional nor a permanent constitution of the newly-formed state, factually there was a state as well as a system of governance, represented by supreme bodies, the King and the Parliament. Many draft constitutions were prepared by different political parties and notable individuals. We shall focus on the official Draft Constitution prepared during the premiership of Stojan Protic. He appointed the Drafting Committee as a governmental (multi-ethnic) advisory team of prominent legal experts from different parts of the new state consisting of Professors Slobodan Jovanovic (President), Kosta Kumanudi and Lazar Markovic (Serbia), Professor Ladislav Polic (Croatia) and Dr Bogumil Vosnjak (Slovenia). After two months of work, the Committee submitted its draft to the Prime Minister. The leading Serbian legal scholar and president of the committee, Slobodan Jovanovic (1869-1958), was well-acquainted with the details of Austro-Hungarian and German legal traditions. Since he was an active participant and witness of the events that led to the creation of the new state, while also being an objective and critical historian, it is important to shed light on his firsthand account of the emergence of the state of Serbs, Croats and Slovenes.
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Tamir, Michal. "The Declaration of Independence as a Transitional Constitution: The Case of Israel". Middle East Law and Governance 8, n.º 1 (19 de julio de 2016): 57–89. http://dx.doi.org/10.1163/18763375-00801003.
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In the two decades since Israel’s constitutional revolution, the Basic Laws have come to enjoy normative supremacy and demonstrate efficacy by enabling judicial review of the legislative and the executive branches. Yet, they have not assumed an integrative role in the Israeli society. In terms of their substance, the Basic Laws are incomplete in scope. In terms of the procedure leading up to their enactment, they lack public legitimacy. This can be attributed, at least in part, to the fact that the Supreme Court was the key political actor responsible for retroactively upgrading the Basic Laws from regular laws to constitutional norms. This paper argues that the only document in the history of Israel possessing the potential to fulfill an integrative role was the Declaration of Independence. Due to its intrinsic ‘transitional’ characteristics and the unique socio-political circumstances surrounding its drafting, this founding document could and should have been perceived as a transitional constitution. This transitional constitution established Israel’s basic values and opened the way for an incremental constitutional process that continued with the enactment of the Basic Laws, and that will culminate only with the drafting of a full constitution. However, owing in part to the narrow conception of transitional justice, the Declaration was never interpreted as such. This historical error could have been corrected in 1994 as the identical principle clause of Israel’s two Human Rights Basic Laws—which constitute Israel’s (partial) Bill of Rights—declared that the human rights regime in Israel should be “respected in the spirit of the Declaration of Independence”. Yet, this opportunity was once again not seized. This failure carries unfortunate consequences for the Israeli constitutional regime since unlike the Basic Laws, which enjoy formal normative supremacy yet nonetheless suffer from legitimacy deficiencies, the Declaration bears the potential to fulfill an integrative constitutional function.
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Prasirtsuk, Kitti. "Thailand in 2015". Asian Survey 56, n.º 1 (enero de 2016): 168–73. http://dx.doi.org/10.1525/as.2016.56.1.168.
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Under the military regime, Thailand struggled to design a new constitution. As the recently drafted document was rejected, another Constitutional Drafting Committee was installed, in effect delaying the return to electoral democracy for almost a year, until mid-2017 or so. Meanwhile, a bomb blast in downtown Bangkok that killed about 20 people revealed not only the risk of international terrorism but also the dilemma of Thai foreign policy.
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Malagodi, Mara. "The Rejection of Constitutional Incrementalism in Nepal's Federalisation". Federal Law Review 46, n.º 4 (diciembre de 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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Bernard-Maugiron, Nathalie. "Egypt’s Path to Transition: Democratic Challenges behind the Constitution Reform Process". Middle East Law and Governance 3, n.º 1-2 (25 de marzo de 2011): 43–59. http://dx.doi.org/10.1163/187633711x591413.
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This article will focus on the constitutional and legal developments that have taken place in Egypt since February 11, 2011, the date Hosni Mubarak was forced to step down, to show that behind technical and theoretical issues lay fundamental political challenges. It will start with a general chronological analysis of the developments, before focusing on the debate around the sequence of institutional events, and on the criticisms addressed to the army. It will conclude with an analysis of the major challenges that the country will face in drafting a new constitution.
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Lerner, Hanna. "Permissive Constitutions, Democracy, and Religious Freedom in India, Indonesia, Israel, and Turkey". World Politics 65, n.º 4 (octubre de 2013): 609–55. http://dx.doi.org/10.1017/s0043887113000208.
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The article addresses the question of what role formal constitutions play in mitigating intense conflicts over the religious character of the state. In contrast to common views in constitutional and political scholarship, it demonstrates that the ideal of liberal constitutionalism is not compatible with the political reality and types of conflicts that characterize religiously divided societies. Analyzing four processes of constitution drafting in which issues of religious law and religious identity were at the heart of the debate—India, Indonesia, Israel, and Turkey—it argues that under deep disagreement over the state's religious character, the drafters adopt either a permissive or a restrictive constitutional approach. While the former implies strategies of constitutional ambiguity, ambivalence, and avoidance in order to allow the political system greater flexibility in future decision making on religion-state relations, the latter approach uses repressive constitutional constraints designed to limit the range of possibilities available to future decision makers. The article further explores the long-term consequences of the two approaches and argues that (1) permissive constitutional arrangements, more than restrictive arrangements, are likely to promote the democratic functioning of future governments; and that (2) permissive constitutional arrangements may facilitate greater freedom of religion, but they are also likely to lead to greater restrictions on freedom from religion, compared with restrictive constitutions.
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Hatchard, John. "Re-establishing a Multi-Party State: Some Constitutional Lessons from the Seychelles". Journal of Modern African Studies 31, n.º 4 (diciembre de 1993): 601–12. http://dx.doi.org/10.1017/s0022278x0001226x.
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Several African countries have found that the road towards the reintroduction of multi-party politics is not easy. This short article examines aspects of constitutional developments in the Seychelles, and argues that three fundamental criteria are necessary for a genuine return to democratic pluralism: the implementation of a proper and fairly organised electoral process, the drafting of a new constitution which represents the wishes of the people, and the effective de-linking of ruling party and government.
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Corder, Hugh. "South Africa's First Bill of Rights: Random Recollections of One of it's Drafters". International Journal of Legal Information 32, n.º 2 (2004): 313–21. http://dx.doi.org/10.1017/s0731126500004157.
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It is an honor to have been invited to deliver this paper on my experiences as a member of the group drafting South Africa's first Bill of Rights in the course of the constitutional negotiations in 1993 to such an august international audience. I am also very pleased to be sharing the podium with Christina Murray, since we were student contemporaries (although at neighboring universities) and have been close colleagues in the Department of Public Law at the University of Cape Town since early 1988. Despite our close working relationship over these years, however, I think that this is the first occasion upon which we have talked jointly about our experiences in assisting the drafting of the Constitution, which makes it a special occasion for us, too. Mine will be a very personal recollection and assessment of a period in the constitutional history of South Africa which I never believed possible, let alone that I should have played a small part in it.
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Bhaskar, Anurag. "'Ambedkar's Constitution': A Radical Phenomenon in Anti-Caste Discourse?" CASTE / A Global Journal on Social Exclusion 2, n.º 1 (16 de mayo de 2021): 109–31. http://dx.doi.org/10.26812/caste.v2i1.282.
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During the last few decades, India has witnessed two interesting phenomena. First, the Indian Constitution has started to be known as ‘Ambedkar’s Constitution’ in popular discourse. Second, the Dalits have been celebrating the Constitution. These two phenomena and the connection between them have been understudied in the anti-caste discourse. However, there are two generalised views on these aspects. One view is that Dalits practice a politics of restraint, and therefore show allegiance to the Constitution which was drafted by the Ambedkar-led Drafting Committee. The other view criticises the constitutional culture of Dalits and invokes Ambedkar’s rhetorical quote of burning the Constitution. This article critiques both these approaches and argues that none of these fully explores and reflects the phenomenon of constitutionalism by Dalits as an anti-caste social justice agenda. It studies the potential of the Indian Constitution and responds to the claim of Ambedkar burning the Constitution. I argue that Dalits showing ownership to the Constitution is directly linked to the anti-caste movement. I further argue that the popular appeal of the Constitution has been used by Dalits to revive Ambedkar’s legacy, reclaim their space and dignity in society, and mobilise radically against the backlash of the so-called upper castes.
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Wahyudi, Teguh Fidiah, Izomiddin Izomiddin y Kun Budianto. "THE AUTHORITY OF THE VILLAGE CHAIRMAN IN DRAFTING VILLAGE REGULATIONS". Nurani: Jurnal Kajian Syari'ah dan Masyarakat 21, n.º 1 (9 de junio de 2021): 113–24. http://dx.doi.org/10.19109/nurani.v21i1.7924.
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The issuance of.The Constitution Number6 2014 concerning Villages, hereinafter referred to as the Village Law, becomes a starting point for the village's hopes to be able to determine its position, role and authority over itself. The hope is that the village can be socially powerful and politically sovereign as the foundation of village democracy, as well as being economically empowered and culturally dignified as the face of village independence and village development. This hope is even more exciting when the combination of recognition and subsidiarity principles appears as the main principle that becomes the spirit of this law. Village Law Number 6 of 2014 concerning Villages supported by PP. 43 of 2014 concerning Implementation Regulations of Law Number 6 of 2014 concerning Villages, discusses the process of making Village regulations which are also regulated in the Minister of Home Affairs Regulation No. 111 of 2014, the formulation of the research problem wanted to know the process of making Village regulations according to The Constitution Number6 2014 concerning Village, the fund wants to know the authority of the village head in drafting village regulations in Ulak Pandan Village and Tanjung Pinang Village, Kecamata. West Merapi, Lahat Regency. based on The Constitution Number6 2014concerning Village, the theory used is the theory of coordination from Inu Dating, the methodology used in this research is descriptive analysis or qualitative research design with a case study model. In conducting this research the author uses a type of field research (Field Research), the result of this research is that the process of drafting village regulations in Ulak Pandan Village and Tanjung Pinang Village, District West Merapi, Lahat Regency is in accordance with The Constitution Number6 2014 on Villages which is supported by PP No. 43 of 2014 and Minister of Home Affairs Regulation No. 111 of 2014, drafting village regulations.