The first question for a country that is writing or rewriting its constitution is the overall process for drafting, consulting and approving the document. In a growing number of cases, countries are choosing to create a Constituent Assembly to do all or some of those tasks.
There are various models of a constituent assembly and each country will define its model. With the recent Arab Awakening there are different examples of how a constituent assembly was to organized and its role in the constitution-making process:
In Tunisia an election was held to elect the members of the constituent assembly. Those members are tasked with drafting the constitution, conducting public consultations and approving a draft that was to be submitted to a referendum for approval. While conducting its mandate as a constitutional body, the assembly acted as a parliament, including the appointment of an interim government.
In 2005 Iraq elected a temporary national assembly to draft the constitution that was then submitted for approval to the citizens of the country in a referendum.
Egypt elected a permanent parliament that then appointed unelected citizens to the constituent assembly that drafted the constitution before being submitted for approval through a referendum. The permanent parliament remained responsible for governing until the constitution was adopted.
Libya elected a temporary General National Congress that was responsible for the approval of a draft constitution before being submitted for approval by a referendum. However, the Congress assigned the drafting of the document to an unelected constituent assembly.
From these examples a few principles can be extrapolated:
1. A temporary institution like a constituent assembly works best when a permanent parliament has not existed (e.g. –Libya or Iraq) or has been dissolved (e.g. – Tunisia).
2. Where a temporary institution is elected it will be expected to act as a full parliament until the constitution is approved, thus placing extra burdens on the institution in addition to constitution writing.
3. It is important to ensure the temporary institution meets international standards for a democratic institution as it may take a number of years to finalize a draft constitution and during that time precedence can be set as to the operation of the institution that will impact on any future, permanent parliament.
4. The election of a constituent assembly may be the first free and fair election in a country and, as such, it is important that the assembly receives the support it requires to achieve its goals. The citizens are watching the institution carefully, often during tough political and economic times, and their faith in democracy will rest heavily of the effectiveness of the temporary institution.
As a result, it is crucial that proper support be provided to a constituent assembly. Like any parliament, the institution requires a myriad of capacity development. Some of the key areas of support that must be identified include:
• Inclusive Participation: If citizens are to believe that a democracy is different than earlier forms of government it is critical that the assembly be as consultative as possible, both with regard to its work on the constitution but also with regard to its work as a parliament. When laws are passed and committees conduct routine oversight, the public must be engaged.
• Capable Staff: This may be a real challenge to the capacity of the assembly, especially where there was no parliament previously or there is a lack of trust in the staff of the previous parliament. Given the short timeframe for the work of the assembly, it is important that any support be practical and responsive to the needs of the members and the assembly.
• Legal Framework: As the institution is temporary, it is important to establish rules of procedure and other legal aspects of its work immediately. A good practice is to have the assembly appoint at its first session an ad hoc rules committee, reflecting the make up of the assembly, to draft the rules of procedure.
• Inaugural Session: Again, as there is no precedent for the election of the Speaker of the assembly, it is critical that support be provided to the elected members before the first session to ensure it runs smoothly, the officers of the assembly are elected and important early decisions are made.
• Access to Expertise/Knowledge: A temporary institution with a finite mandate may not have the resources to address all its pressing questions related to the constitution and its work as a governing body. Support in terms of access to international expertise, knowledge products and facilitating interaction with academia and CSOs within the country are all important means of building the capacity of the assembly.