A constitution is the fundamental law upon which all other laws of a country are based and must conform. The constitution is the written (sometimes unwritten) basic definition of the character of a country and the structure of the government in that country.
It is a relatively rare and prestigious opportunity for a legislator to be directly involved in the drafting and adoption of a nation’s constitution. But there is a growing trend that elected representatives should be actively involved in the development of such a crucial document.
The writing of a constitution often occurs under exceptional circumstances, such as the independence of a nation or after a revolution or political transition from one form of government to another. Amendments to a constitution are more commonplace, but any change to the fundamental law of a country must be done with great care.
A critical aspect of constitution writing is to ensure the document reflects the interests of the vast majority of the citizens of a country. A constitution should be based on a consensus and the document should reflect a set of principles that all citizens in a country can agree upon. A constitution should be above partisan politics and should define the terms of government and interaction by which any party or political group will respect.
There are various means by which a constitution can be drafted including direct participation by citizens, an appointed working group of experts and an elected body of representatives. With regard to an elected body, its role can be limited or very active, including:
• Adoption – Where a small working group or a government ministry writes the constitution and conducts all consultations and submits a final draft to a parliament for approval.
• Consultation – A permanent or temporary assembly is provided with a draft of a constitution and its role is to conduct public consultations and seek input from citizens and organizations before suggesting amendments to the document.
• Drafting – The parliament, either a permanent or temporary one, is directly responsible for developing the wording of the constitution. Either before and/or after the drafting of the document, the assembly should seek public input through consultations. Approval of the final document can rest with the Assembly or a referendum may be required.
In the field of parliamentary development, it is generally understood that the content of a constitution is to be determined by the citizens of the nation. However, there are two aspects to the work in which capacity support can be provided.
First, where a decision has been made to create a Constituent Assembly, support can be provided in the development of the temporary institution. A constituent assembly is a body that acts like a parliament but has as its main mandate the creation and adoption of a constitution. Once the constitution is approved the assembly’s mandate ends. An assembly can be a stand-alone temporary parliament or can be a sub-committee of a permanent parliament. An assembly can be fully elected, fully appointed or a mix of the two systems. Though there is a growing trend towards elected assembly members. Support includes the normal institutional support that would be provided to any parliament, such as the development of a secretariat, the establishment of effective committees and the drafting of rules of procedure. For more information on constituent assembly, please click here.
Second, support is often focused on Public Consultations. Even though a constituent assembly may be elected and, therefore, the members are chosen to represent the citizens, it is always a good idea to conduct extensive public discussions about the content of the constitution. The greater the extent of the consultations, the greater the legitimacy of the document with the citizens of a country. Furthermore, there is much expertise that can be drawn upon to make the document better, including from average citizens, jurists, academia and CSOs. For more information on public consultation in the constitution-making process, please click here.