Constitution-making Process Research Articles

Democratic Revisability and the Legitimacy of Constitutional Entrenchments: A Content-Specific Approach

Abstract As modern constitutions bind democratic legislation to entrenched norms, they are in tension with the democratic idea that laws should be open to revision by new majorities. Against a widespread view, constitutional norms cannot be considered to be “more democratic” than ordinary laws due to specific qualities of the constitution-making process. Rather, the higher-level law of constitutions can fulfil a specific function as it may provide standards that ensure that laws made by the majority can be justified to everyone. On that basis, I evaluate for different types of constitutional norms whether there are good reasons for constraining legislation. In particular, entrenching cultural traditions and economic policy is more problematic than guarantees of the democratic process and rights ensuring respect for individuals. In sum, a two-tiered law-making system has important values, but people engaging in constitution-making and constitutional interpretation should be wary that the constitutional form is not abused.

The things they are a-changin': reinventing daily objects during the chilean 2019 revolt

In October 2019, fuelled by a collective discontent with the lifestyles and inequalities generated by the capitalist model, social protests took place in the Chilean streets. People staged massive demonstrations in every city demanding profound changes to the system. Known as the ‘Estallido Social’ (Social Explosion), the demonstrations paralysed an important part of the country and, after a few weeks of revolt, managed to initiate a new Constitution-making process. These events triggered a process in which the country was re-imagined, subjectivities were rewritten and objects and the environment were heavily transformed. This study places its focus on a set of industrially produced objects, whose original functions were subverted in the streets to enable new uses and meanings aligned with the Social Explosion. Kitchen items such as pots and ladles were used to make a lot of noise; road signs and pieces of urban furniture were re-located to block the streets; and gas cylinders and oil drums were reshaped for protection against police forces. While specialized literature generally seeks to recognize the new social forms and models that emerge from the crisis, this essay aims to reflect on the ways in which the relationship with the everyday environment is transformed in the midst of a social crisis, and how operations of resignification and reinterpretation may also be necessary to bring about more profound changes. As such, this study aims to characterize these operations of mutation (of bending, crumpling, scratching, wetting, moving, cutting, twisting, hitting, breaking, cracking, tricking, whipping, throwing, crushing, dragging, drilling and burning), and from there to move towards elucidating the practical and symbolic repercussions that this new material reality has had on the social body and daily life.

Reviewing the constitution-making process in Kenya: The failure of the 2005 constituent process

Abstract Kenya began its democratic era after its declaration of independence and the adoption of its first constitution in 1963. However, this supreme norm of the country would undergo countless reforms by the political elites from the very beginning, mostly to satisfy the partisan demands of the political leaders of the moment. These reforms succeeded in transforming the initially democratic model into an authoritarian, one-party system. After two decades of corruption and abuses of power, political changes in the country, and a wave of democratization after the fall of the Berlin Wall fueled the popular clamor for constitutional change. This article analyses the development of the constitution-making process, which began with the first constitutional amendments introduced to the constitution of the independence, as well as the main factors that led to the rejection of a new draft constitution in the ratification referendum held on November 21, 2005. A key element contributing to the failure of the whole process is the strong influence of political forces in the process, all using partisan methods to achieve perceived political advantages.

Addressing Economic Inequality in Constitutional Design: the Colombian Drafting Experience in 1991

Colombia’s Constitutional Assembly enacted a constitution in 1991 whose text and application are regarded around the world as among the best examples of socioeconomic constitutionalism in the last three decades. Despite rising interest in the structural causes of economic inequality at both global and domestic levels, Colombian constitutional scholarship has not yet offered an account of the role of the original constitutional design in addressing economic inequality. In this article, I show that the drafters of the Constitution of 1991 were deeply concerned with economic inequality and considered the problem from several angles. However, they did not agree on a structural plan with coherent tools to address it and prevent forces in the executive and legislative branches from undermining that purpose. Therefore, the Colombian constitution-making process has been overestimated because, after thirty years, the Assembly’s economic egalitarian aspirations are far from being achieved, and Colombia is still among the most unequal countries on earth. Thus, the Colombian constitution-making experience provides a warning about how unclear and weak agreements in constitutional design can become an additional obstacle to overcoming economic inequality.

Anayasa Yapım Sürecinde Muhalefet Olgusunun Meclis Tutanakları Üzerinden Değerlendirilmesi: 1921, 1924 ve 1961 Anayasaları Örneği

Constitutions are texts that regulate the organs of the state, their functioning and the fundamental rights and freedoms of individuals vis-à-vis the state. Both these texts themselves and their drafting processes are of particular importance. Especially in constitution-making processes where citizens are indirectly involved in the process through their representatives, the existence and impact of the opposition phenomenon shows the democratic quality of the constitution. In this context, this study aims to examine the phenomenon of opposition in the Turkish constitution-making processes in the 1921 and later periods through parliamentary minutes. According to the results of the analysis conducted from a qualitative perspective with an interpretivist approach, it is determined that there was a functioning and qualified opposition phenomenon in the 1921 and 1924 constitution-making processes, while this determination is controversial in the 1961 constitution-making process. Key Words: Constitution making, political opposition, parliamentary debates.

Shifting Electorates and Preferences in Chile’s Constitutional Process

Normatively, democratic constitutions should express how citizens want to govern themselves collectively. Little is known, however, about how citizens’ constitutional preferences can be elicited and aggregated in practice. An intuitively appealing approach is to allow various forms of popular participation during a constitution-making process, including a popular vote to accept or reject the draft constitution (Fishkin 2011). Based on the Chilean experience with democratic constitution making, this article identifies unanticipated and previously unexplored distortions that can lead to incongruence between the preferences of voters and representatives regarding the extent and direction of constitutional change.

Introduction to the Symposium, “Constitution-Making in the 21st Century: Lessons from the Chilean Process”

Expressions of social discontent that trigger deep political reform appear to be a sign of the times. Emerging political actors challenge delegitimized political elites with promises of a closer relationship with electorates, new rules to fight corruption, and more open access to the benefits of economic growth. Often, however, reforms in recent decades have weakened instead of strengthened democracy, leaving political systems less fair and more exclusive than before. The Chilean constitution-making process of 2021–2022 reasonably raised hopes for a different outcome.

Between Hope and Disaffection: The Chilean Constitution-Making Process and the Intermediation Crisis

On November 15, 2019, following almost a month of massive daily demonstrations across Chile, most political parties agreed to initiate an unprecedented constituent process. This process introduced institutional innovations for the Constitutional Convention elections, including gender parity, reserving 17 seats for indigenous individuals, and allowing nonparty candidates to run as independent candidates (Heiss 2021; Suárez-Cao 2021).

Grand Narratives of Transition and the Quest for Democratic Constitutionalism in India and South Africa

There are currently two contrasting ways of narrating the Indian and South African constitutional transitions. The first contends that they were moments when liberal constitutionalism was adapted to the circumstances of the Global South. In contrast to what happened in many other post-colonial countries, this narrative goes, constitution-making in both India and South Africa was driven by a broadly representative liberation movement that had endeavoured to catch the colonial state in the contradiction between its claimed ‘civilising mission’ and the reality of its oppressive operation. At independence, the Congress party in India and the African National Congress in South Africa expressed this conception of the anti-colonial struggle in constitutions that repurposed liberal constitutionalism to the challenges of post-colonial governance. In so doing, they not only pluralised that approach to governance beyond the West. They developed it in ways that are relevant to the revival of liberal constitutionalism in the Global North. The second narrative, detectable in recent work in decolonial theory, but also in an older tradition of culturalist critique in each country, rejects this account of liberal constitutionalism’s already-achieved de-Westernisation. Far from demonstrating the universalisability of liberal constitutionalism’s animating principles, adherents of this second narrative maintain, the Indian and South African Constitutions simply reflect the values of the Westernised political elite that adopted them. As such, they prolong the colonial past into the colonial present and perpetuate the suppression of indigenous lifeways that began under colonial rule. After setting out these two narratives as they apply to each country, this paper brings them into dialogue with each other. Rather than offering a purportedly neutral framework by which to assess them, each narrative is treated as the other’s most demanding interlocutor, alert to its blind spots and convenient omissions. Proceeding in this way, the paper contends that, notwithstanding their many differences, the two narratives – charitably interpreted – are committed to the same ideal: a distinctively Southern conception of constitutionalism that gives the post-colonial state a central role in overcoming past injustices and creating the conditions for active citizenship. The final section of the paper examines the suggestions that adherents of the charitable version of each narrative make about how to realise this ideal in India and South Africa. The problem with the second narrative, the decolonial/culturalist story, is that its adherents’ call for fundamental constitutional overhaul tends to be lacking in detail and also in attentiveness to the political context in which such a call would be implemented. One very real challenge for adherents of the charitable version of this narrative is the risk that any new constitution-making process might be dominated by political actors with an exclusionary conception of the relevant national people. The first narrative, the ‘liberal constitutionalism already de-Westernised’ story, points in the direction of incremental adjustment rather than complete constitutional overhaul. While absolving its adherents of the need to design things afresh, this does not mean they have an easier run of things. Indeed, if anything, the demands on them are higher given the evident failure of the Indian and South African Constitutions thus far to realise their ambitions.

El proceso constituyente de Bachelet en Chile (2015-2018): razones de un fracaso (previsible)Bachelet’s constitution-making process in Chile (2015-2018): reasons for a (foreseeable) failure

Abstract This essay contributes to the increasing comparative constitutional law literature that has been examining constitution-making failure, the factors that explains it, and the possibility of obtaining valuable lessons for the design of future processes. For this purpose, it examines the Chilean constitution-making process of 2015-2018, led by former President Michelle Bachelet. The article shows that the most relevant factors that explains this failure relates to a dynamic political and social context, the institutional design of the process, and the exclusion of political parties of the process and the lack of consensus among the political elite. However, this failure cannot be considered definitive and total. To the contrary, it was only temporary and partial, considering the influence that the process had over the next two constitution-making process that followed on the next years (2019-2022, and 2023).

El fracaso del proceso constituyente en KeniaThe failure of the constituent process in Kenya

Abstract Kenya began its democratic era after its declaration of independence and the adoption of its first constitution in 1963. However, this supreme norm of the country would undergo countless reforms by the political elites from the very beginning, mostly to satisfy the partisan demands of the political leaders at the moment. These reforms succeeded in transforming the initially democratic model into an authoritarian, one-party system. After two decades of corruption and abuse of power, the political changes in the country and the wave of democratization after the fall of the Berlin Wall fueled the popular clamour for constitutional change. This article analyses the development of the constitution-making process, which began with the first constitutional amendments introduced to the constitution of the independence, as well as the main factors that led to the rejection of the new draft constitution in the ratification referendum held on 21 November 2005. A key element contributing to the failure of the whole process is the strong influence of political forces in the process and the partisan use of all of them to achieve their political advantages.

Reassessing Public Participation in Constitution-Making Processes

Scholars have long debated public involvement in constitution-making and will continue to do so. Yet, despite the multitude of opinions, we are no closer to resolving some of the most fundamental questions regarding the role of the public in constitution-making processes than decades ago when these discussions first started. The recent participatory Chilean constitution-making process, the growing wave of authoritarian constitution-making, and the plethora of new empirical evidence present another occasion to revisit this topic. In contrast to earlier literature, this article approaches this topic by addressing both the normative and the sociological dimensions of public participation in constitution-making. It first argues that public participation in constitution-making should only be considered a sociological necessity, not a normative one. Second, using a bottom-up approach, it provides a list of guiding principles to ensure that public participation in constitution-making, when conducted, allows for a net positive for both the constitution and the society it governs.

Institutional resistance: The case of the Chilean Convention 2021–22

AbstractThe Constitutional Convention in Chile, like other constitution-making mechanisms in democracies, carried out its work within the democratic institutional framework. In a democracy, the success of a constitution-making process depends not only on internal factors, such as its capacity for representation and the procedural rules by which it is governed, but also on external factors such as participation, the government’s role and other contingent factors. When the process – including both internal and external factors – fails to produce adherence to the new constitution, institutional resistance to changes is very likely to occur. This article argues that the manner in which the political and social spectrum was represented in the Chilean Convention, combined with the way participation was implemented and the rules governing the Convention, insulated it from society and the rest of the democratic institutions. As a result, party and public adherence to the proposal made by the Convention was low and its contents generated institutional resistance from outside.

Parity constitutionalism

AbstractIn 2021, the Chilean Convention became the first constitution-making body with gender parity. However, the draft – which reflected many gender-related norms – was rejected by 61.89 per cent of voters in the exit plebiscite of 2022. In this article, we argue that although parity constitutionalism has promise and, in the Chilean case, was linked to gender-related outcomes in the constitutional text, parity’s promise may fail to materialize. We thus caution against a naïve view of parity constitutionalism as one of the key legacies of the 2020–22 Chilean constitution-making process.

A failed but useful constitution-making process: How Bachelet’s process contributed to constitution-making in Chile

AbstractThis article shows how failed constitutional proposals may contribute to future constitution-making processes by exploring the relationship between the recently failed Chilean constitution-making process (2019–22) and the previous unsuccessful one led by former President Michelle Bachelet (2015–17). Comparative constitutional scholars are yet to fully understand how constitutional failures of this kind can take place, and Bachelet’s process has not received the attention it should. This article fills that gap by showing how both processes were driven by shared principles initially set by Bachelet. It also shows how those principles may serve as a blueprint for future constitutional changes in Chile. Bachelet had campaigned on the basis that any constitutional replacement attempt should be participatory, institutional and democratic – all ideas that have remained popular in Chile’s political landscape. Those ideas have served the purpose of both reducing transaction costs among constitutional negotiators and securing large compromises in polarized political scenarios.

Constitution-making and statebuilding in Kosovo: we (you) the people

ABSTRACT How is ‘the people’ constituted in post-war, internationally administered Kosovo? As an internationalised territory and with an unresolved political status, the post-war interim constitution-making process was mainly shaped by a non-consensual idea of statehood regarding whether Kosovo was entitled to sovereign statehood. This article traces the antagonistic goals between Albanian and Serb ethnic groups within the country, on the one hand, and the international statebuilders, on the other hand, during the constitution-making process. Kosovo’s post-war constitution-making became the main instrument of an incremental international statebuilding. Although international statebuilders pursued neither a deliberative nor a consultative approach throughout the constitution-making process, they engineered a liberal constitutional content which imposed the highest standards of minority rights in post-war Kosovo.

DEMOKRATİK ANAYASA YAPIMI TEORİSİNİN KRİZİ: ŞİLİ DENEYİMİ VE DÜŞÜNDÜRDÜKLERİ

Demokratik anayasa yapımı teorisi, bir anayasanın toplumsal meşruiyetinin ve uzun ömürlü olabilmesinin sağlanması için, anayasa yapım sürecine halkın doğrudan ve dolaylı araçlarla katılımının ve süreç üzerinde belirleyici etki sahibi olmasının önemine vurgu yapmaktadır. Bu yaklaşım, bir yandan da, anayasa yapım sürecine katılım yoluyla toplumsal yarılmaların azalacağını, insanların ortak bir gelecek ülküsü çerçevesinde bir araya gelmelerinin kolaylaşacağını savunmaktadır. Bu teorinin son yıllarda en etkili biçimde test edildiği örnek, Şili’dir. Uzun yıllar süren otoriter bir yönetimin ardından demokrasiye geçiş yapan Şili’de, özel olarak seçilmiş bir Kurucu Meclis önderliğinde, son yılların en şeffaf ve katılımcı anayasa yapım süreci yürütülmüştür. Buna karşın, çok yakın bir zamanda yapılan halkoylamasında, bu sürecin ürünü olan anayasa taslağının büyük bir çoğunlukla reddedildiği görülmektedir. Bu durum, Şili’deki anayasal gelişmeler açısından olduğu kadar, demokratik anayasa yapım teorisi açısından da ciddi bir kriz durumuna işaret etmektedir. Bu çalışmada, Şili örneğinde yaşanan gelişmeler mercek altına alınmakta ve gözlemlenen sorunlar; katılımcı anayasa yapım sürecinde katılım sorunları, katılımcı anayasa yapım sürecinde kapsayıcılık sorunları, katılımcı anayasa yapım sürecinin anayasa metnine olumsuz yansımaları ve katılımcı anayasa yapım sürecinde medya ve iletişim süreçleri başlıkları altında, dört ayrı kısım halinde incelenmektedir. Buradan hareketle, demokratik anayasa yapım teorisinin temel tespit ve varsayımları Şili deneyimine ilişkin gözlemler ışığında test edilmekte ve teorinin, hukukun tümevarımcı ve siyaset biliminin tümdengelimci yöntemleriyle bakıldığında karmaşık sonuçlar ürettiği ifade edilmektedir. Bu tespiti destekleyebilmek için de, demokratik anayasa yapımı teorisinin yalnızca 19. yüzyıl anayasacılığı bakımından değil, 20. ve 21. yüzyıllarda görülen anayasa yapım süreçleri açısından da mutlak geçerlilik iddiası bulunmadığı örneklerle ortaya konulmakta ve teorinin değeri ve açıklayıcı gücünün “ihtimalîlik” (contingency) kavramı üzerinden tartışılması gerektiği savunulmaktadır.

Il paradosso del Cile: alla destra il compito di riscrivere la Costituzione che non aveva intenzione di cambiare

In Chile, the beginning of the work of the Consejo Constitucional – the conservative-majority body that will draft within four months a new constitution that should replace the existing 1980 Constitution – serves to outline the ongoing constitution-making process. This can be done considering the first year of the presidency of progressive Gabriel Boric, who was its promoter but will not be able to lead it. Instead, it will be led by the ultra-conservative José Antonio Kast, leader of the Partido Republicano de Chile, which has always declared itself opposed to a reform of the Fundamental Charter and which holds precisely the majority in the Consejo Constitucional.

Constitutions and their foundational discontents: Studying the process of constitution-making in Jammu and Kashmir

AbstractThis article studies the process of constitution-making in Jammu and Kashmir as a hegemonic process dominated by, and an ideological reflection of, the dominant political party of Jammu and Kashmir, the National Conference led by the popular leader Sheikh Abdullah. The Constitution of Jammu and Kashmir emerged as an outcome of their ideas. Though the process itself was punctuated by the exclusionary violence against diverse communities present in the state at that time, very little attention has been paid to the idea of a constitution as an exclusivist text that embeds ‘foundational violence’ within it, and that eliminates dissenting groups and prevents the inclusion of plural conceptions of politics by actualizing a monopolistic discourse in favour of the dominant party. This article locates the violence that went into constitution-making and further employs hermeneutical interpretation of the Constituent Assembly Debates of Jammu and Kashmir to locate the differing viewpoints that existed in the State Constituent Assembly. It also takes the surrounding political and ideological context into account. In doing so, it constructs an alternative and ‘unofficial’ version of the constitution-making process, which helps challenge the dominant historical narrative that the constitution-making in Jammu and Kashmir was a successful experiment in Indian federal democracy.

Providing the Context for the Debate on the “Human” Imagined in the Drafting of the ANC’S Constitutional Guidelines in Lusaka, 1985–89

Abstract This article attempts to provide an historical context for current debates on South Africa’s 1996 constitution. It argues that the template for the new Constitution was forged by the anc in Lusaka, Zambia between 1985 and 1989, well before the ‘unbannings’ of February 1990 which are generally assumed to have been the starting point of the constitution-making process. The author outlines how the organisation and its allies wove constitutionalism in as one of the distinct threads of an enormously complex, multifaceted and sometimes contradictory process of struggle and constitutional planning that finally pushed the regime into a corner and led to the unbannings of 1990. Besides re-periodising the constitution-making narrative, the article stresses the African ‘essence’ of this struggle and the importance of African agency and ideas in forging the constitutional foundations for the future. Multiple levels of intergenerational experience, thinking and nuance are not catered for in often sloganised debates about the Constitution’s origins. This will require scholars interested in the decolonial project to self-interrogate sometimes mechanistic assumptions about the “inherited” Western underpinnings of the Constitution, it concludes.