The Influence of Preparatory Constitutional Commissions on Constitutional Reform Projects

Abstract

Constitutional reform processes typically combine both democratic and technocratic elements. This is, among others, the case when preparatory constitutional commissions are used. Such commissions are usually composed of legally qualified persons and other experts, while simultaneously being charged to consult widely among the public. Using the experience of the 2016 Constitutional Commission for the reform of the Office of the President in Singapore as a case study, this paper evaluates the contribution that constitutional commissions may make. Two core claims are advanced. First, the involvement of a constitutional commission at the outset of the formal constitutional reform procedure can infuse the entire process with greater societal legitimacy and allow the resultant changes to take firmer root in the public’s consciousness. Whether this actually materializes is however dependent on specific framework conditions: these most obviously include the political follow-up, if any, to the recommendations of the commission, but also include the scope of the latter’s mandate, its treatment of submissions received and the extent to which those making submissions can be deemed to be representative of the various affected sub-strata of society. That last condition in particular is challenging to satisfy in practice. Second, the paper shows how constitutional commissions may bridge the distinction typically drawn between constitution-making and constitution-application, by contributing to discussions about the desired meaning to be given to the constitutional text. This confirms the need for a broad understanding of constitutional dialogues that recognises that courts and legislatures are not the only players of importance as far as constitutional interpretation is concerned.