Constitutional Reform Process Research Articles

Beyond the First Nations Voice to Parliament: Who “owns” the state?

AbstractIn 2023, Australian voters defeated a constitutional amendment to establish a First Nations' Voice to Parliament. This representative body would have been empowered to make representations to parliament and executive government. It was proposed by First Nations people as the first stage in a Voice, Treaty, Truth process of political and constitutional reform. As the implications of this defeat are considered, it is instructive to examine what lessons New Zealand's politics and policies of Māori self‐determination may contribute to local deliberations, including on the principles that could inform treaties such as those under consideration in the state of Victoria. The ongoing point of contention in both countries has profound implications for how and why policy is made, for whom and by whom. The point of contest is over who, in practical political terms, “owns” the state and, therefore, its policymaking systems? Are First Nations people shareholders in state authority, or should they reside always on its periphery? If not, what are the terms of their inclusion?

The constitutional codification of academic freedom over time and space

Abstract This article explores the global spread of domestic codifications of academic freedom norms by mapping constitutional provisions over time and space. Drawing on the new Academic Freedom in Constitutions dataset, the study evaluates several hypotheses that may explain the norm’s geographically diverse, yet comparatively limited, adoption in 52 per cent of constitutions today. The descriptive analysis of constitutional adoption patterns suggests that the as yet large pockets of absence are a result of the fact that academic freedom was not included as a fundamental right from the early days of constitution-making, combined with its close link to higher education development, thus locking many countries into a path dependency of early constitutions exclusive of academic freedom norms. The availability of relevant models in nearby countries, together with higher education expansion, are key facilitators of academic freedom adoption at the critical time of a constitutional reform process. Diverse countries in different regions acted as norm entrepreneurs, often motivated to domestically protect academic freedom, thus leading to the emergence of regional and other clusters of academic freedom reference types. A sizeable proportion of insincere adopters further suggests that, in some regions, academic freedom serves as a legitimizing international norm.

Constitutional Reform in a Fragile and Conflict-Affected Environment? Outlook on Constitutional Reform Processes in Ethiopia

Abstract The Ethiopian Federal Constitution currently in force has hitherto been formally unreformed. This does not mean that there has been no societal pressure to reform; rather, the opposite is true. Since the time of its adoption, the Constitution has been a controversial document, and it has been subjected to substantial criticism both from within academic circles and from a wide range of political parties and other societal elites. Due to a lack of democratic space in the process of its development, the Federal Constitution has suffered from a legitimacy deficit, which has prevented the document from constituting the basis for a widely shared national identity or standard for common citizenship. These legitimacy problems have not benefited from the fact that the many identity-related tensions and conflicts that have ravaged the country and have prevented durable peace, stability, and sustainable socio-economic development are directly linked to the Constitution by its detractors. It seems that only a constitutional reform could offer a way out. Rather than focusing on the substance of constitutional reform, this paper concentrates on the process that should create a conducive environment for such substantive options to be debated and decided on. While the deep ethnic polarization and manifold public security problems currently afflicting Ethiopian society make such reform necessary, they simultaneously create a very challenging environment for a constitutional reform process to be adequately implemented and administered. In this regard, the paper argues that, apart from the necessity of securitization measures, the design of the constitutional reform process, which needs to be participatory and inclusive, can have a positive impact on both these security problems and on the development and drafting of a constitutional document that provides a widely agreed-upon and, hence, legitimate foundation for durable peace, stability, and sustainable socio-economic development.

Ethnic and racial violence and violations in the context of the Brazilian democratic crisis: a study of Black and Quilombola populations

ABSTRACT This article addresses the question of how the recent political context of Brazil shapes violations of various kinds against Quilombola communities in Brazil. Using data from online news sources, we track violations from 2016 to 2020 related to land disputes, physical attacks and threats, and environmental issues. We show that, despite the legal rights accorded to these communities since the 1988 constitutional reform and subsequent processes of democratisation, vested interests in the agricultural lobby and a later authoritarian turn, especially after 2016, led to a dismantling of social and economic policies for Quilombos. The violations suffered by these communities result from the denial of their collective identities as constitutional subjects and the non-recognition of their dignity, which are the product of historical processes of inferiorisation that have treated some people as non-subjects or not eligible to bear rights, based on colonial classifications but still present in the dominant society.

Constraining Constitution-Making

Whether constitution-making should be constrained has long been debated, but little is known about whether it is possible. We make several contributions to this question. We start by providing a typology of three types of constraints on constitution-making: Substantive, Procedural, and Institutional. We next develop a positive theory of when these constraints are likely to influence drafters’ behavior. We then use a mixed-methods approach to explore these ideas in the context of Chile’s constitutional reform process. In a survey experiment conducted in Chile before citizens voted on the draft constitution, we find that most respondents supported constraints in the abstract, but that they also supported a popular policy initiative—nationalizing mines—that violated these same constraints. This suggests that popular opinion may not enforce constraints on constitution-making. However, in fieldwork conducted in Chile, we found evidence that Chilean political parties did rein in constitution-makers who wanted to ignore constraints. This suggests that constitution-making constraints may be more likely to be effective when enforced by political parties.

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.