Constitutions and Democratic Transitions

Constitutions and Democracy

A country’s constitution articulates the basic principles and processes by which its political system functions, and creates the institutional structures of government. A democratic constitution provides a road map for establishing a system of popular self-governance. The constitution supplies the legal foundation within which democracy can develop. Thus we can say that democracy is built in tandem with the emergence of the rule of law as expressed in the constitutional framework. Although democratic constitutions differ in many ways, in all of them citizens are sovereign and the selection of political leaders and the formulation of laws and policies have their roots in citizens’ expressed preferences.

What is the role of a constitution in helping countries move from an authoritarian system to a democratic one? The breakdown of a repressive regime is usually characterized by high levels of mistrust and even fear, political uncertainty, struggles for power, and an institutional vacuum. Adopting a democratic constitution directly addresses these issues. The constitution establishes a new framework for government decision making and new processes for selecting government leaders. In doing so, it helps determine who will exercise power, and how power will be exercised. This puts constitution making at the center of political power struggles. But it also offers opposing groups a historic opportunity to move from mutual fear to greater trust, and to channel power struggles and deep-seated social conflicts into agreed–upon institutional processes that allow conflicts to be peacefully resolved.

Because a democratic constitution creates institutions that reflect democratic norms such as citizens’ equality before the law and inclusive, responsive governance, it offers a framework for national reconciliation. In contrast to an authoritarian regime, in a democracy all citizens have the right to freely participate in politics and governance. A democratic constitution both extends power to all citizens and places limits on the power of government and of majorities. These limits are necessary to protect democracy from the actions of a majority who may seek to violate citizens’ basic rights or otherwise undermine democratic practices. No matter how many votes one party gets, there are certain constitutionally enshrined rights that are inviolable. Constitutionally established rights and limits on power are valuable not only for their own sake, but also because they enable all citizens to meaningfully participate in political life.  It is especially in protecting against a tyranny of the majority that a democratic constitution helps societies move from repressive governments to free, democratic systems.

How does a constitution affect the outcome of a democratic transition? A constitution helps democracy to become established overtime when it is based on a broad consensus in support of the rules and procedures of the new system of governance it establishes. Reaching this type of consensus requires building trust and is more likely to succeed when accompanied by inclusive processes of dialogue and negotiation. This has implications for a) the constitution-making process, b) the types of institutional choices adopted in the constitution and c) the role of civil society actors during and after the constitution-making period.

Constitution-Making Processes

Done well, democratic constitution-making is above all a process of negotiating and agreeing on participatory governing institutions. Constitution-making processes may take place by means of a specially elected Constituent Assembly; within an ordinary legislature that also carries out the normal business of governing; by an appointed commission or “roundtable” process; or under the auspices of an interim government. Surveys of constitution-making show that there is no one set of rules for success; rather, the process must correspond to a country’s particular political, social, cultural and institutional circumstances. [1]  Nonetheless, several process-related factors can be identified that raise the likelihood a new constitution will reduce social divisions and advance a democratic transition.

The inclusion of all key groups is perhaps the single most important criterion for a successful constitution-making process. This is especially critical in severely divided societies and those emerging from violent conflict. Inclusion allows diverse groups to negotiate provisions that protect their vital interests and thus gives them a stake in upholding the constitution.  Inclusion also increases the chances that the new constitution will be perceived as legitimate and enjoy widespread public support. It is particularly critical to include potential “spoilers,” that is, groups who oppose the establishment of a democratic system and may seek to undermine the new constitution or overthrow democracy. Indeed, from a practical standpoint success may largely depend on the ability to bring on board anti-democratic forces in society by giving them a stake in supporting the new democratic institutions and processes. Inclusion and compromise with supporters of the outgoing regime or other non-democratic groups involve some risk that democracy may be eroded from within by what the scholar Juan Linz called “disloyal players.” But the alternative – exclusion– poses the danger that these groups will become increasingly radicalized and present an even greater threat to the new system.

To achieve an inclusive constitution writing process, it follows that the drafting body should include representatives of key powerholders and social groups. When repressive regimes break down and a political transition begins, there is usually neither a representative legislature nor political parties reflecting diverse currents in society. Thus, if a constituent assembly is to elaborate a new constitution, it is advisable to hold open, fair elections using proportional representation electoral rules to obtain a fair representation of viewpoints in writing the new charter.[2] If other constitution drafting options are chosen, these too should include representatives of all key groups. “Skewed representation carries the risk that deliberations will be dictated by the partisan interests of a dominant party or be distorted around the power and privileges enjoyed by a dominant group.” [3]

The timing of elections for a constitution-writing body is also important. Holding elections too quickly gives a great advantage to groups that were already well organized under the outgoing regime. This may be because they were part of a tolerated labor union network (as in Poland’s Solidarity), a religious organization (for example, the Muslim Brotherhood), or other groups that was able to organize under the prior regime. Time is needed for parties to emerge and for the public to understand the available electoral choices. In 1970s Spain, for example, the illegal communist-affiliated labor union was highly organized and active, and it was widely thought that the communists would win a majority of votes in the first democratic elections. The fear was that if the communists were victorious at the polls, they would then undermine the new democratic institutions from within and replace them with more radical options.  The decision to not rush elections gave other groups time to organize and publicize their ideas and positions.[4]  As it turned out, the communist party won a very small proportion of votes.

Procedural rules also affect inclusiveness. Requiring more than simply a majority of votes to pass constitutional provisions forces different groups to build consensus through negotiation and compromise. For example, in South Africa the dominant opposition party, the African National Congress (ANC), constituted more than a majority (but less than 2/3) of constituent assembly members. Adopting the requirement of a 2/3 vote to approve the final constitution meant that the ANC could not dominate the drafting process, but instead had to forge agreements with other groups to secure passage of the final text. The final constitution reflected a broad spectrum of interests and viewpoints, contributing to its successful implementation.

Public consultation and education also contribute to a successful constitution writing process. A number of countries have experimented with public input into the constitutional text.[5] This presents the challenge of processing and analyzing the public’s contributions, but plays an important role in connecting constitution drafters with citizens’ concerns.  Particularly in countries lacking a culture of constitutionalism, efforts to involve and educate citizens through public education campaigns and other means play a positive role in the constitutional building process by helping to raise citizens’ awareness of their constitutional rights and responsibilities in a democracy.

South Africa illustrates these points.  In the 1990s, South Africa embarked on a democratic transition that became a paradigm for a well-designed constitution-making process.[6] The goals were to facilitate national dialogue and reconciliation in a context of violent conflict and a regime (based on apartheid) that oppressed the majority of the population. The fact that the goals of national reconciliation and democracy were largely achieved has much to do with elites’ attention to the importance of the process, determination to be inclusive, and a commitment to public consultation and education. A critical decision was the adoption of a 2 step process that allowed a phased approach to the challenges involved in achieving national reconciliation and political change. First, closed-door negotiations on an agreement for a transitional government and an interim constitution took place. Second, a constituent assembly was elected by proportional representation for the purpose of creating and adopting a final constitution. The interim constitution’s adoption of 34 binding constitutional principles that restricted the options available to the final constitution-drafting body was an important innovation. Many of these concerned the allocation of powers between the national government and the provinces, as well as commitments to racial and gender equality. Commitment to these binding principles illustrates a) how law can entrench norms, and b) how lowering the stakes of politics by devising ways to address groups’ fears contributes to successful constitution-making. The binding principles provided reassurances that convinced a wide range of actors to participate in the constitution-making process, helping to secure its inclusive nature as well as its ultimate success.  In addition, a new constitutional court was created and assigned the role of certifying that the final text complied with the binding principles.[7] Finally, South Africa carried out an extensive and path-breaking public consultation and education campaign that included public meetings, civil society workshops, TV and radio programs focused on constitutional education, a website and newsletter put out by the constituent assembly, a telephone talk line, pamphlets and advertising, and the distribution of millions of copies of the draft constitution at different stages of completion.

In contrast, the constitution-writing processes in Iraq and Egypt illustrate squandered opportunities to advance national reconciliation through democratic constitution-making. In both these countries the need for inclusion, negotiation and trust-building was of paramount importance. Yet in each case the constitution building process lacked these attributes. Iraq’s constitutional text was produced hastily, without popular involvement and with the absence of a major group, Sunni Arabs. Despite Sunni rejection of the constitution, it was adopted in a 2005 referendum. In Egypt, we will never know whether the outcome might have been different if a more broadly representative constitution-drafting body had existed and adopted innovations such as South Africa’s binding constitutional principles or other measures aimed at calming the fears of non-Islamist sectors of society.

Constitution Drafting: Institutional Choices and Democratic Transitions

As with constitution writing processes, there are no concrete rules for what a constitution’s institutional arrangements should look like. Generally speaking, however, a well-crafted democratic constitution is based on compromises and reflects bargains that satisfy the interests and goals of key groups in a society. The chances of drafting a successful constitution are increased when its provisions and institutional design address the needs, fears and aspirations of relevant groups. This goal is more likely to be met when constitution drafting bodies are a) inclusive and represent all relevant powerholders, b) when attention is paid to the ways in which institutional choices can protect the interests of key groups by dispersing power or generating the “right” kind of behavioral incentives, and c) by entrenching rights and laying the foundations for the development of independent courts and oversight bodies.

Inclusion + Compromise=Protection of Interests

“Constitution building that includes and permits the participation of all legitimate groups, actors and stakeholders are more likely to result in institutional choices that strengthen rather than weaken democratization.”[8]  Broad representation of key powerholders and social groups in deciding on the content of the constitution is critical because it helps ensure that the agreements reached reflect consensus on the types of institutions adopted, the allocation of powers and the processes of governing under the new system.  Consensus building efforts, in turn, mean that diverse groups are more likely to feel that the institutional arrangements they agreed to serve their interests and should be respected and upheld. The inclusive dialogue, negotiation and compromise in drafting the constitution also help to build trust among opposing groups as they work out the new rules of political life.

Note that while representation of key actors in drafting the constitution is critically important, it can also lead to controversial trade-offs in the form of institutional compromises.  Sometimes these compromises may even include the incorporation of non-democratic features in an otherwise democratic constitution in order to secure needed support for change. For example, in the 1990s Chile’s transition to democracy succeeded in large part because negotiators for the democratic opposition agreed to include several non-democratic constitutional provisions demanded by the outgoing military regime. These provisions constrained the choices of popularly elected officials, but in so doing they addressed the fears of the outgoing military regime and its right-wing supporters. Pro-democratic parties acceded to these provisions in exchange for other measures they wanted and to advance the larger goal of securing the return to elected civilian government.

Chile illustrates how strategic bargaining over constitutional provisions can help pave the way to establishing a democratic system by mitigating fear and giving opposing groups a rationale for supporting new constitutional arrangements. The ability to eventually eliminate non-democratic provisions is critical, however, and this point highlights the potential risk of such compromises.[9] The Chilean legislature gradually mustered the needed support to legally remove these measures, though it took 15 years to do so.[10]

Constitution Drafting and Institutional Incentives

One way of understanding the impact of different institutional choices constitution drafters must make is to analyze the incentives they generate for political actors to engage in behaviors that either strengthen or weaken the functioning of the democratic system.  This is a complicated task, and is made even more complex by the fact that constitutional arrangements interact with other institutional choices, such as the type of electoral rules adopted. Nonetheless, one guiding principle that can be identified is the dispersal of power among branches of government, rather than concentrating power in one location. Dispersal of power generates incentives to uphold the constitution by offering institutional protection for the interests of diverse groups in society. This helps create multiple winners (as opposed to a winner-take-all power dynamic), and in this way increases support for the democratic constitutional order.

“Vertical” Power Dispersal

Adopting constitutional provisions that disperse power vertically, that is, from the central government to territorial subdivisions can help build support for the new constitution by giving subnational governments varying degrees of autonomy and thus a way to protect their interests.  Constitutions that establish a decentralized federal system devolve significant powers to provincial or local institutions, allowing societies with strong regional or territorial differences to peacefully coexist within the larger state.[11]  By addressing territorially based divisions, rather than seeking to ignore or repress them, adopting this institutional choice can help persuade subnational actors that it serves their interests to support the democratic constitution. Where regional divisions coincide with identity-based differences –whether these are sectarian, ethnic, tribal, or linguistic –federalism (and different types of decentralization) offer a constructive way to embrace diversity within the unified state. Identity-based conflicts may whither over time as individuals develop an allegiance to both their region and the state. In Spain, a quasi-federal system was adopted to address the concerns of regions with historically distinct cultural and linguistic identities, such as Catalonia and the Basque Country. Canada’s constitution establishes “asymmetrical federalism” by giving certain decentralized powers only to the Quebec region based on its distinct national identity and language.

“Horizontal” Power Dispersal

Horizontal dispersal of power within or across branches of government can also build support for a new constitution among opposing groups.  Power-sharing within the structure of the executive branch creates multiple winners by ensuring different groups are represented in decision making at the highest levels. For example, a collegial (multi-person) executive as in Switzerland, Bosnia and Herzegovina, or 20^th century Uruguay, distribute executive power to rival groups, giving them a stake in upholding the constitutional arrangements.[12] While power-sharing arrangements can be effective in building initial support for a democratic constitution, they can pose obstacles to long term democratic survival if they freeze the distribution of political power among certain groups. They can also lead to intractable problems of patronage and corruption. In Lebanon, for example, sectarian-based power-sharing allowed different religions to come together, but produced state inefficiency and the paralysis of decision making. Even more importantly, however, the main flaw of Lebanon’s model is that “reinforcing sectarian identities and providing them with full-fledged political and legal status came at the expense of convergence toward a common identity.”[13] Democratic institutions must be able to respond to the evolution of new power dynamics in society, and allow new groups and alliances to form and gain political office.

Different executive branch design options also affect the dispersal of power and generate distinct incentives that, in turn, affect support for the constitution, governance and the outcome of a democratic transition. In a society accustomed to autocratic governance, it may be tempting for constitution drafters to establish a strong president as head of government. This choice may also correspond to a country’s power dynamics if one party or group is dominant. However, constitutional designs that endow a separately elected president with very strong powers pose the risk that these powers will be abused, and constitutional rights and democratic processes will be eroded. This is illustrated by recent experiences in Russia under Vladimir Putin, Ecuador under Rafael Correa and Venezuela under Hugo Chavez.[14]  According to one study, the “need to guard against a return to presidential autocracy is a driving imperative of the constitutional transitions in the (the Middle East and North Africa) region, and new constitutions in (this) region should be designed with this imperative in mind.”[15]

Research also suggests that strong legislatures, rather than strong presidents, are most conducive to successful democratic development.[16] Effective legislatures take time to develop, especially in the context of a long history of authoritarian rule. And legislatures are often inefficient and chaotic, especially in new or fragile democratic settings.  Nonetheless, the legislature is the institutional arena closest to the citizens in that its elected members are citizens’ direct representatives. If the constitution establishes an overly strong president at the expense of the power of the legislature, there may be few incentives for that body to play a constructive rule in law making and elected representatives may instead engage in primarily obstructive activities. In these circumstances, constitutional design may add to the challenges of a democratic transition.

One alternative to creating a powerful separately elected president is to balance the distribution of powers between the president and the legislature. This institutional design creates “checks and balances” that encourage compromise in formulating laws. Another option is for the constitution to create a separately elected president but to give this position largely ceremonial powers, with the head of government chosen by the party (or coalition of parties) in the legislature that won the most votes. This arrangement is adopted in some semi-presidential systems.[17] A third choice is to adopt a parliamentary system where the head of government is a Prime Minister chosen by the legislature, based on the party (or coalition of parties) getting the most votes in elections. These executive branch design choices disperse power differently and have different advantages and disadvantages for governance. In general, parliamentary systems may experience frequent government changes but are flexible in managing government deadlock or situations where the head of government has lost the support of parties in the legislature.[18]  Presidential systems often suffer from deadlock between the legislature and the president, but do not have a constitutional means of changing government leadership before the next scheduled elections. Despite lack of support in the legislature, a president cannot usually be removed from office until his or her term in office is up.

There is a large amount of academic research investigating the relationship between the executive branch design and democratic development. [19] Constitution drafters should keep in mind the trade-offs and likely impact on political leaders’ behavior of different ways of distributing powers. To the extent it is possible to generalize, institutional choices that disperse power and generate incentives to engage in negotiation and compromise are advantageous to constitution making and a successful democratic transition.[20]

Entrenching Rights and Promoting Justice

There is an intrinsic relationship between the exercise of fundamental rights and the ability to realize a democratic system of self-governance in actual practice. Constitutional provisions that enumerate basic rights advance a democratic transition by establishing legally enforceable principles.  Complementing the enumeration of rights, when constitution drafters adopt provisions for independent courts and oversight bodies they advance democracy by creating processes and institutions citizens can use to demand enforcement of their rights. To encourage the development of independent courts and oversight bodies, it is advisable that their members be appointed by a process involving a mixture of political and professional groups to guard against stacking these bodies with supporters of one particular party or group. In addition, many constitutions create a special position of Human Rights Defender or Ombudsman to enforce constitutional guarantees of citizens’ rights.

Constitutional provisions protecting basic rights and establishing an independent judiciary also set the stage for innovations in promoting justice and overcoming identity based discrimination and hatred.[21] Special transitory constitutional provisions as well as the use of ordinary law can be used to address human rights abuses during previous regimes, establish investigative commission, grant amnesties, and reincorporate combatants into civilian life. Identity based divisions, especially those involving religion or ethnicity, are among the most difficult issues for societies to deal with when emerging from authoritarian regimes. Whereas these divisions are often forcefully suppressed under autocratic rulers, in a democratic system rights are to be extended equally to all citizens. Constitutions can be used to address identity based divisions, by prohibiting discrimination on the basis of ethnicity, religion, gender, or sexual orientation, and by including a strong bill of rights.

When rights are enforceable by courts, governments can be compelled to fulfill the ideals contained in the constitution. The Mexican constitution contains provisions that address gender discrimination in the private sphere, including constitutionally guaranteeing equal pay for equal work. Mexican courts are currently moving toward legalizing same sex marriage, long a taboo across Latin America.[22]  Poland’s constitution guarantees non-discrimination in governmental services, such as education. In the 1990s, several Latin American constitutions recognized indigenous legal systems and authorities.[23] These attempts to respect indigenous customary law along with the principles of democratic constitutional law can offer instructive examples for other countries where legal traditions based on religion or other sources of authority are a divisive issue.

Constitutions can also promote equality by adopting provisions that give special treatment or powers to minority groups.  Some constitutions establish quotas or reservation systems for certain categories of citizens, such as women legislators or members of minority groups. In Pakistan’s constitution a number of seats in the National Assembly are reserved for non-Muslims. Other constitutions adopt multilingual policies, proportional electoral systems, federalism, special power sharing arrangements and other institutional innovations to promote the representation of different minorities.

The Role of Civil Society

Civil society groups play key roles in constitution building processes. These include providing civic education, preparing submissions to constitution drafters, lobbying and carrying out research, organizing and mobilizing citizens, and informing them about elections and constitutional issues.  Political action is more likely to be successful when groups band together to form networks and cultivate links with the media and political parties.[24] In Kenya in the early 2000s, 52 religious and secular organizations set up an unofficial commission that traveled around the country to collect people’s views on the need for a new constitution, leading the government to reluctantly take action. A civil society activist in Sri Lanka described the impact of his organization’s efforts on the draft constitution as follows: “When we talked about governance, people laughed. When we talked about accountability, we got a cynical response. When we talked about the democratic deficit, people… said that it was an occupational hazard.  Those items are now on the public policy agenda. Let’s not forget that we put them there and that the political parties picked them up thereafter.” [25]

After a constitution is enacted, civil society has an equally important role to play. Constitutions do not implement themselves, neither their ideals nor their processes are automatically self-enforcing. “Making a constitution work is not easy; it does not work unless politicians, citizens, courts, and other institutions take it seriously and take steps to make it work.”[26]  Through efforts such as playing a watchdog role against the abuse of state power, advocating and guarding media freedom and independence, and taking action to demand the government respect basic rights and constitutional processes, civil society groups signal that there will be costs involved if leaders fail to uphold the constitution.  “(T)o achieve desired outcomes, interest groups must vigilantly press for, bargain for and demand nearly all the positions already agreed in the constitution.”[27] A constitution sets out a framework for accomplishing particular objectives, but it takes both political leadership and the input of an informed and involved citizenry to implement the constitutional bargain and make progress towards realizing democratic constitutional ideals.

International Influences

International law provides a number of principles and norms that inform modern constitutions, particularly with respect to human rights. Some constitutions incorporate international agreements into their constitutional law. Nicaragua’s constitution, for example, states that the provisions of the 1948 Universal Declaration of Human Rights and the American Declaration of the Rights and Duties of Man apply to all government institutions.[28] Colombia’s 1991 constitution gives international human rights law superior status in cases where there is incompatibility with Colombian law, and prohibits the suspension of rights contained in international treaties to which Colombia is a party, including during a state of emergency.[29]

There are many international organizations providing advice and resources on constitution making processes and constitutional design, including the United Nations, independent NGOs and other groups. More than ever before, it is now possible to learn from other countries’ experiences with constitution making. While this is a positive development, as one report observes: “In the days when constitution-makers asked themselves ‘What do we want to have happen, and how do we phrase the constitution to try to make sure that it does?” the outcome may have been more successful than when there is a tendency to say “Country X has this provision; it looks as though it might solve our problem—let’s use it..’”[30] The bottom line is that writing a constitution should be a home-grown process that corresponds to a country’s particular circumstances and needs, and creates an institutional framework that the country’s powerholders and citizens believe is worth upholding.

It is helpful to think of democracy as developing within an eco-system where many different elements interact to sustain democratic institutions’ functioning. The constitution is one of the most important elements, since it contains the guiding principles and specific rules, processes and institutional structures that together make up the democratic system’s “operating instructions.” Both the process by which a constitution is built and its substantive content are critical to its legitimacy and to the likelihood that its institutional framework will be upheld. It follows, then, that time and care should be taken to forge consensus on the governing structures and the distribution of powers established in the constitution. Fulfillment of this minimum criterion—consensus in support of the new democratic rules –increases the prospects for managing conflict peacefully, through accepted institutions and processes. If this can be achieved, democracy will at least gain needed time to spread its roots in society.

Learn More:

Analysis

Bahout, Joseph. “The Unraveling of Lebanon’s Taif Agreement: The Limits of Sect Based PowerSharing.” Carnegie Endowment for International Peace. May 2016. http://carnegieendowment.org/files/CP_271_Bahout_Taif_Final.pdf.

ConstitutionNet.  A global online resource established as a joint initiative of International IDEA and Interpeace, with the aim of providing information about constitution building including knowledge tools, a training curriculum, discussion papers and a virtual library of materials compiled from selected processes globally. http://constitutionnet.org.

International IDEA. 2016. “Constitutional Transitions and Territorial Cleavages.” In Arabic. http://www.idea.int/publications/constitutional-transitions/ar.cfm.

International IDEA. 2012. “A Practical Guide to Constitution Building.” http://www.idea.int/publications/pgcb/index.cfm.

International IDEA and the Center for Constitutional Transitions. 2014. “Semi-Presidentialism as Power Sharing: Constitutional Reform after the Arab Spring.” http://www.idea.int/publications/constitutional-reform-after-the-arab-spring/loader.cfm?csModule=security/getfile&pageID=62980.

Interpeace. “Constitution Making and Reform: Options for the Process.” 2011. http://www.constitutionmakingforpeace.org/sites/default/files/handbooks/Constitution-Making-Handbook-English.pdf.

U.S. Institute for Peace. Gluck, Jason and Michelle Brandt. 2015. “Participatory and Inclusive Constitution Making: Giving Voice to the Demands of Citizens in the Wake of the Arab Spring.” http://www.usip.org/sites/default/files/PW105-Participatory-and-Inclusive-Constitution-Making.pdf.

Videos:

International IDEA. 2014. “What is a Constitution?” https://www.youtube.com/watch?v=0UzKD8rZCc0&list=PLwk0dJUMKEMwoupeLOeFBEafhE1w5w-KP.

International IDEA 2014. “Why do Constitutions Matter?” https://www.youtube.com/watch?v=EeWfe2eZ_CI.

International IDEA. 2014. “How are Constitutions Made?” https://www.youtube.com/watch?v=J36s0MTTxc8&list=PLwk0dJUMKEMwoupeLOeFBEafhE1w5w-KP&index=3.

Books and Articles:

Miller, Laurel E. editor. Framing the State in Times of Transition: Case Studies in Constitution Making. Washington, D.C. United States Institute of Peace. 2010. Print.

Schneier, Edward. Crafting Constitutional Democracies. New York: Rowman and Littlefield. 2006. Print.

Weingast, Barry R. “Constructing Self-Enforcing Democracy in Spain.” In Morris, Irwin, Joe A. Oppenheimer and Karol Edward Soltan. Politics: From Anarchy to Democracy. Stanford: Stanford University Press. 2004. Print.