Constitutional Reform Process Research Articles

Securing the peace or renegotiating the political settlement? Understanding popular support for post-conflict constitutions

ABSTRACT How do ordinary citizens view elite-driven, post-conflict constitutional reforms? Established theories emphasize the role of constitutional reform in both postwar democratization and preventing conflict resurgence. This article contends that emphasis on fostering political inclusion and settling conflicts resonates differently across post-conflict societies. Focusing on Nepal, this study draws on a survey implemented with over 1,000 respondents shortly after the ratification of the country’s constitution in 2015. The exploratory analysis shows that even when post-conflict constitutions grant greater rights to historically marginalized groups in absolute terms, they may still perceive that greater concessions would be possible; this makes such groups more likely to oppose the constitution and more likely to prefer extended negotiation periods. Conversely, Nepalis exposed to higher violence during the Maoist insurgency from 1996 to 2006 view the constitution as the conclusion of the peace process and are more supportive of the constitution and opposed to longer negotiation periods. The analysis further highlights that some excluded groups were less likely to learn about constitutional negotiations at all. We identify new pathways influencing the democratic legitimacy of post-conflict constitutions, offering insights for internal and external stakeholders involved in constitutional reform processes and their aftermath.

Measuring constitutional preferences: A new method for analyzing public consultation data

Public consultation has become an indispensable part of constitutional design, yet the voluminous, narrative data produced are often impractical to analyze. There are also few, if any, standards for such analysis. Using a comprehensive reference ontology from the Comparative Constitutions Project (CCP), we develop a new methodology to identify constitutional topics of most concern to citizens and compare these to topics in constitutions globally. We analyze data from Chile’s 2016 public consultations—an ambitious process that produced nearly 265,000 narrative responses and launched the constitutional reform process that remains underway today. We leverage advances in natural language processing, in particular sentence-level semantic similarity technology, to classify consultation responses with respect to constitutional topics. Our methodology has potential for advocates, drafters, and researchers seeking to analyze public consultation data that too often go unexamined.

87년 헌법 개정론의 의의와 한계

There is a need for a sequential and gradual process of constitutional reform, with targets that reflect the strong need for constitutional reform and the level of consensus at various levels.
 It is also necessary to respond to the fact that the flawed political representation system has been an essential problem of the 1987 Constitution. That is, efforts should be made not only to emphasize representation in the constitutional revision process, but also to ensure sufficient participation of the people, who hold the authorship of the constitution, in accordance with the principle of sovereign people, which is the highest principle for the formation of national power structure. As a realistic alternative, it is necessary to actively embrace the civic and deliberative public debate system in the constitutional amendment process rather than the traditional method. This can be achieved to a certain extent through legislative reforms such as the Constitutional Amendment Procedure Act or the Referendum Act, rather than constitutional amendments.
 In the end, we believe that sequential partial constitutional amendments, along with the democratic institutionalization of the constitutional amendment process, including the introduction of a deliberative public debate system, is a realistic alternative to inherit the achievements of the 1987 Constitution, improve its shortcomings, and build a new level of democratic republic.

Progressive borealism and the diversity deficit in Iceland’s constitutional reform process

ABSTRACT Efforts to rewrite Iceland’s constitution have attracted significant attention, being heralded as the world’s first ‘crowdsourced constitution’ and a pioneering example of deliberative democracy. Such claims fit into a wider pattern of what this paper terms progressive borealism: exoticising Iceland as a progressive utopia at once both part of and removed from Europe, predicated on the systematic exclusion of marginalised groups. The aims of this paper are twofold. Firstly, it describes the phenomenon of progressive borealism, which relies on the reimagination of colonial-era depictions of Iceland’s liminality, purity and wildness. Essential to this notion is the importance ascribed to whiteness and racialisation of ethnic minorities. Secondly, it considers how progressive borealism has impacted Iceland’s constitutional reform process. Data is taken from a deliberative poll which formed the basis of recommendations to the Icelandic Parliament. The data demonstrate a diversity deficit, meaning that the most marginalised residents are unable to participate in debates over Iceland’s future, challenging the claim that social diversity is irrelevant in democratic processes such as deliberative polling. The analytical framework draws insights from theories of intersectionality and superdiversity to reveal that the lack of inclusivity is a product of structural forces generating and perpetuating systematic exclusion of marginalised communities. The paper closes by considering the prospects for meaningful constitutional change in this context.

International Comparison of Constitutional Reform Processes in Terms of the Requirements of Indirect and Direct Democracy

This paper is an international comparison of the requirements for indirect and direct democracy in the constitutional revision process. It aims to examine whether a “comparison with other countries’ constitutional revision procedures” is a valid basis for amending Article 96 of the Constitution of Japan by making an international comparison of the requirements for indirect and direct democracy in the constitutional revision process.

Referendums and popular consultations in the Spanish constitutional system: reflecting on the possibility of holding a referendum on the independence of Catalonia from Spain

This article aims to assess the possibility of convening a referendum linked to the initiation of a constitutional amendment to recognise Catalonia’s right to secede from Spain. With this purpose in mind, we will analyse the legal institution of the referendum and other forms of popular consultations provided for in the Spanish legal system, with particular emphasis on the institution of the “consultative referendum on issues of special political importance” enshrined in Article 92 of the Spanish Constitution. This will serve to bring knowledge and rationally challenge the theoretical proposals of some authoritative sources in the legal doctrine, who have argued that before formally initiating a constitutional reform process in Spain, it would be convenient to verify whether such a desire for independence actually exists in Catalonia by holding a consultative referendum in this region, which would be in accordance with the Constitution.

Institutional design beyond democratic innovations

ABSTRACT Steffen Ganghof’s Beyond Presidentialism and Parliamentarism can improve existing typologies in comparative government and has great potential for discussions about democratic innovation and reform. So far, democratic innovations like deliberative mini-publics have remained mostly additive, leaving the underlying decision-making logics of representative political systems unchanged. Ganghof’s ideas can move debates about how deliberative democracy is to be institutionalized forward. Semi-parliamentary government constitutes an intriguing option to meet both demands for legislative flexibility and responsiveness to citizens’ concerns and demands for stability and accountability. At the same time, I identify a limitation of the book in the fact that Ganghof’s normative theory of democracy remains thin. To appeal to citizens in constitutional reform processes, proposals for semi-parliamentary reform need to do more than reconcile conflicting visions of majority rule. They need to speak to democracy’s central promises of equal autonomy and rationality.

Justifying types of representative democracy: a response

ABSTRACT This article responds to critical reflections on my Beyond Presidentialism and Parliamentarism by Sarah Birch, Kevin J. Elliott, Claudia Landwehr and James L. Wilson. It discusses how different types of representative democracy, especially different forms of government (presidential, parliamentary or hybrid), can be justified. It clarifies, among other things, the distinction between procedural and process equality, the strengths of semi-parliamentary government, the potential instability of constitutional designs, and the difference that theories can make in actual processes of constitutional reform.

The Environment and its Protection as Fundamental Principle of the Italian Constitution: A Constitutional Innovation that Looks to Future Generations?

This article deals with two innovative aspects of Italian Constitutional Law. Firstly, the revision made by constitutional law no. 1/2022 that introduced (in art. 9 and 41 of the Italian Constitution) the principle according to which the Republic protects the environment, biodiversity, and ecosystems in the interest of future generations. Secondly, this article points out a recent trend in the constitutional reform process in Italy, particularly in the XVIII Legislature, that constitutional reforms are increasingly being implemented through specific/sectoral amendments. Apart from characterizing the indicated innovations, I also draw attention to their minor systemic consequences.

IMPLEMENTATION OF THE ASSOCIATION AGREEMENT BETWEEN UKRAINE AND THE EUROPEAN UNION: CONSTITUTIONAL AND LEGAL ASPECTS

The article is devoted to the analysis of the constitutional principles of implementation of the Association Agreement between Ukraine and the European Union. It is determined that the important factors of constitutional support for the implementation of the Association Agreement between Ukraine and the European Union are, first, the consolidation of the pro-European foreign policy of the state, which is a kind of constitutional guarantee of continuity and consistency in implementation and association activities in Ukraine EU and, secondly, the improvement of constitutional provisions on the interaction of national and international law, in particular those governing the implementation of international treaties into the national legal system. Attention is drawn to the need for more systematic constitutional and legal regulation of international and domestic law, in particular, it is proposed to include in the formation of a «package» of systemic constitutional changes, items on the relationship between international and national law, which will create the basis for: 1) to consolidate the superiority (primacy) of properly implemented international legal norms over the national law of Ukraine (except for the Constitution of Ukraine, which should have supremacy and priority in the national legal system); 2) to regulate the application of other sources of international law in Ukraine (first of all, generally accepted principles and norms of international law, as well as acts of international organizations); 3) specify the forms of expressing consent to the binding nature (methods of implementation) of an international agreement for Ukraine; 4) determine the place of international treaties of Ukraine in the hierarchy of normative legal acts; 5) to expand the range of subjects of implementation of international agreements and to regulate the status and hierarchy of intergovernmental and interdepartmental agreements accordingly. The ongoing process of constitutional reform in Ukraine creates a legal basis for the systematic elimination of shortcomings and gaps in the Constitution of Ukraine in the field of interaction between national and international law. Key words: Constitution of Ukraine, Constitutional Reform, Constitutionalization, European Union, Association Agreement between Ukraine and the EU, Implementation.

Chile’s New Start

Chile is the Global South’s “exceptional nation” in terms of wealth and historical development patterns, but most recently it has been aligning with some of the geopolitical area’s traits. Together with the constitutional reform process, the resounding victory of the left under the lead of Gabriel Boric Font (born 1986) in Chile’s December 2021 presidential elections has opened up a new socio-political landscape for the country. At the center of the nation’s potential restart remains once again social policy which traditionally touches upon the core of Chile’s political culture and basic understanding of the institutions. The expectations for a “progressive renewal” are hopeful yet mixed. This article analyzes Chile‘s presidential election of 2021 and what the winning of the Social Convergence Party (Convergencia Social) means for the country‘s future. The reasons of the left‘s triumph, the national and the international implications of president Boric‘s government, and the cultural and institutional challenges facing the new government in terms of economic reforms could become examples for other areas in the Global South—both in the positive and in the negative sense. Due to its exceptional geographic, socio-cultural and institutional situation Chile may deserve the status of one of those rare “small states” in international affairs that infuse some case study teachings to their peers and the greater global community. Although the nation is relatively unique in its geopolitical environment, its potential as a model of a more balanced future in the Global South can be bigger than its actual regional size and influence.

‘The Bhangi and the Chamar should be Called to the Councils of Empire’: Lord Lothian, the Indian Franchise, and the Untouchables

ABSTRACT The franchise enquiry led by Lord Lothian (Philip Kerr) was a central component in the Indian constitutional reform process of the 1930s. This article examines the general context of the enquiry, as well as the specific circumstances, under which it was conducted in both the United Kingdom and the sub-continent. Lothian’s investigation paid special attention to the means by which increased numbers from untouchable caste groups could be enfranchised. The article explores the ways in which the position of the untouchables became a principal concern in discussions about the franchise and more general political reform. It also examines the close involvement of Lothian in the Round Table movement and its influence on his thinking about expanding the electorate and constitutional change in the subcontinent. A detailed focus is the effort made by Lothian to determine the potential number of untouchable voters in the United Provinces. Here, in one of the most populous provinces of British India, Lothian encountered multiple problems as he attempted to estimate the population of untouchable caste groups. The article argues that many of the difficulties he confronted had their origins in an earlier reticence on the part of the authorities in the province to recognise the untouchables as a minority that should be given any special political consideration. It was, ironically, Lothian’s colleagues in the Round Table who had laid the foundations for this perspective and thus contributed to many of the difficulties and quandaries with which he subsequently wrestled.

Radical departure or opportunity not taken? The Johnson government's Constitution, Democracy and Rights Commission.

In its 2019 manifesto, Boris Johnson’s Conservative Party pledged a Constitution, Democracy and Rights Commission, to consider far-reaching constitutional change. This appeared to signal a radical departure from UK precedent in approaching constitutional reform. In this paper, we examine the Johnson government’s initial proposals and subsequent actions, placing them in comparative context and contrasting them with UK precedent. We show that the government’s explicit pledge to appoint a single Commission to develop the reforms along with its emphasis on restoring public trust in politics through the constitutional reform process, reflected several internationally recognized principles and models for constitutional reform. In practice, however, the government abandoned these potentially radical procedural ambitions, and instead appointed several issue-specific elite-led reviews. We argue that the government’s procedural approach has so far closely followed recent UK precedent, and that the Commission turned out to be an opportunity not taken rather than the radical departure that initially seemed possible.

EL DERECHO A LA ALIMENTACIÓN ADECUADA EN CHILE Y SU NECESARIA CONSAGRACIÓN COMO DERECHO FUNDAMENTAL EN LA NUEVA CONSTITUCIÓN CHILENA

Amid the process of constitutional reform in Chile, this article addresses the historical, factual and international human rights arguments that justify the incorporation of the right to adequate food as an autonomous right in the new Constitution. Subsequently, the body of this text assesses the impact of this new constitutional right on Chilean private law, especially regarding the consumer protection regime and the right to be informed. The text argues that, ultimately, a constitutional right to adequate food will allow to extend the current norms on truthful and adequate information for consumers, contributing to a better guarantee of other human rights intrinsically related to food, such as the right to health.

The Reality and Future of Reforms in Morocco 2011-2021: The Question of Authority

The following paper is a study of Morocco’s political experience, which was often described as smooth and reformist in comparison to other more radical and deep-rooted national experiences in the context of the Arab Spring uprisings, be they from the first wave beginning in 2011 (especially Tunisia, Egypt, Syria, and Yemen) or be they from the second wave in 2019 (most notably Sudan and Algeria). Seeking to deconstruct the process of constitutional and political reform in Morocco during the decade-long period between 2011 and the current year 2021, the analysis is centred upon the question of authority, and decision-making processes within the framework of authority. The paper deploys a theoretical framework grounded in the tools of institutional analysis and its intersections with the constitutional approach and elite framing in order to deconstruct the structures of authoritarianism while measuring political change and democratisation. The explanation and interpretation of reform in Morocco is conducted through a methodology that weaves together two approaches, the first of which is based on the 2011 constitution. The second departs from the constitutional framework to explore the historical and political foundations that formed political authority in Morocco and steered its continuities. The study concludes by asserting that the failure to frame reform within the question of authority must be addressed; political authority in Morocco is grounded in multileveled decision-making and in the restoration and turnover of elites. This blind spot towards addressing reform within the context of authority was created by the limitation of reform outputs within a narrow field dominated by the monarchy. In turn, the trajectory of reform was conditioned by practices and beliefs of the political regime and its understanding of the many variables comprising Morocco’s current political outlook.

From Public Participation to Constitutional Legitimacy: Evidence from Tunisia

Does public participation in constitution-making processes enhance constitutional legitimacy? Using an original public opinion survey conducted in Tunisia shortly after the adoption of the 2014 Constitution, this article examines whether public participation in constitution-making activities enhances perceived constitutional legitimacy. The results show that participants are more likely to support the constitution and its institutions than non-participants. We argue that participation increases constitutional literacy among the general public and this increased knowledge impacts the respondents’ perception of the constitution. The empirical findings confirm normative assumptions of participatory model of the democratic theory and suggest that inclusive and participatory constitutional reform processes, in contrast to an elitist approach, are more likely to yield democratic constitutional outcomes which are supported by larger segments of the society.

Russia’s 2020 Constitutional Reform: The Politics of Institutionalizing the Status-Quo

Abstract The articles in this issue explore the longer-term implications of Russia’s 2020 Constitutional Reform process. Assessing constitutional change from different theoretical and empirical approaches, these authors find that the constitution largely codified the status-quo as it had evolved over the past decade. The resulting institutional changes solidified the personalist political system that concentrates power in one leader. These reforms also created new mechanisms to preclude elite defection and generate societal quiescence. At the same time, the three-staged reform process that included formal adoption, national vote, and legal reconciliation, introduced new political risk by raising societal expectations, reinforcing cleavages through patriotic legitimization strategies, introducing new rigid structures, and relying on personalism and networks over institutional governance. These risks do not predict state failure but they suggest new challenges that will continue to shape Russian political development.

The Future of Democracy in Chile

The situation in Chile after the Constitutional Referendum of October 2020 posits the question: Where is the country headed? Is this the end of a long transition from “adolescent” neoliberal democracy to “mature” welfare democracy—or the start of a new era of uncertainty? Without substantial improvements of the constitutional reform process, its building stones and surrounding conditions, the country is not ready for a systemic transition in reconciliatory and secure manners.

Response to Jason Edwards’s Comment

Response to Jason Edwards’s Comment

Amending by interpreting: the constitutional jurisdiction as amendment power

The way in which the tension between the vocation of endure of the constitutions and the need to adapt to the socio-political changes in their environment has been reconciled by the institutionalisation of their change through the procedures of constitutional reform. But there is another way to do that: the silent constitutional reform practiced by constitutional courts when they interpret its precepts. This question raises the difficulty of identifying in which cases the constitution interpretation by constitutional judiciary is actually a silent constitutional change. In this paper, the author argues that the literal text of constitutional provisions is the only certain border between interpretation and the silent constitutional mutation by judiciary, and the institutionalisation of change through formalised processes of constitutional reform is the only democratic way to resolve the tension between durability and change.