National Constitutional Assembly Research Articles

The Loving Embrace: Women’s Legal Mobilization in favor of a Feminist Constitution in Colombia in 1991

ABSTRACT What do women contribute when constitutions are written? How can they make their voices and proposals heard? Can feminism shape constitutional law? These are the main questions in the narrative of the feminist movement’s participation in the shaping of the 1991 Colombian Constitution. The objective of the essay is to recover the role of women in lawmaking while applying a gender lens to historical methodologies, by using documental evidence from the national archives and newspapers to uncover their actions and voices, as well as conducting interviews with feminist leaders in Colombia active during the 1990s. These findings show the repertoires of action of the women’s movement taking advantage of a crucial political opportunity to write constitutional law, as well as the obstacles and trade-offs they faced to advance women’s human rights in Colombia’s new charter. The essay argues that, despite the strategic feminist mobilization to include women’s reproductive rights in the Constitution, the political alliances outside (and inside) the National Constitutional Assembly between the Liberal Party and the Catholic Church blocked some of their demands, especially with regard to voluntary motherhood. The conclusions identify the feminist heritage of the new constitutional order that emerged as a result.

Neo-Orientalizing the Tunisian Woman: The Geopolitics of Women's Rights in Post-2011 Tunisia

Neo-Orientalizing the Tunisian Woman:The Geopolitics of Women's Rights in Post-2011 Tunisia Hajer ben Hadj Salem (bio) Introduction Since independence, Tunisia has been considered by international observers and scholars as a flagship for women's rights in the Muslim world. This image was enhanced during the popular uprisings of 2011 by the glittering public presence of predominantly uncovered Tunisian women who invaded the public space and occupied the frontlines to support nation-wide gender-blind demands for freedom, dignity, and for putting an end to socioeconomic and regional discrimination, of which they had been longstanding victims. As such, they took the world by storm, challenging Western received wisdoms about the status of women in Muslim societies and forced Western news sources and scholars to discuss the unprecedented role Tunisian women played in the protests, highlighting post-independence gender policies that vindicate Tunisia's uniqueness in the Muslim world. [End Page 40] However, this sense of celebrated exceptionalism was short-lived. Soon after the uprisings, Tunisian women, women's rights advocates, and scholars became weary of the political transition. Their worries became more acute as news stories of the Salafists intimidating unveiled women on the streets and attacking women's gatherings spread across the country, and as the power vacuum became infiltrated by returning political Islamist expats. Following the fall of the Ben Ali regime, the 1959 Constitution, which was born in the throes of the revolutionary Code of Personal Status (1956), was suspended. Capitalizing on this legal hiatus, these Islamist expats, defined by the West as "moderate Muslims,"1 unabashedly resumed their suspended war on women's rights and the CPS they had fought in the 1980s. The gloominess of that era was still engraved in the memories of women's rights activists and ordinary Tunisian women. It became more acute as these Islamists, unexpectedly, won the 2011 elections and dominated the National Constitutional Assembly. Helped by foreign media and decision makers, and an intricate network of sprawling foreign-funded NGOs, they marketed themselves as the "legitimate" political elite, upon whom fell the historical mission of writing a new constitution that would spell out the rights of all Tunisian citizens and set the institutional foundations of a promised "democratic republic." Since January 2011, a growing number of Western scholars and observers have fallen under the spell of the American centers of strategic studies and Western and Qatari media-marketed claims that the new Islamist "power elite" have mutated into custodians of women's rights and imbibed the tenets of democracy. They lost no opportunity to cast an Islamist halo on every political reform, which was fought for desperately by the non-Islamist political actors, including the Tunisian women's rights advocates, and grudgingly accepted by the Islamist leadership under Western pressure. Contrary to these claims and proceeding from a deep understanding of the Tunisian socio-cultural context, this article demonstrates the failure of the [End Page 41] so-called "electorally legitimate moderate Islamists" to set up the legal and institutional foundations of a societal project that builds on the historical assets of the postcolonial modernist state, including women's rights. It studies patterns of public activism channeled by Tunisian women's rights advocates to abort the multifaceted attempts of the so-called 'moderate Islamists' and their Islamist orbit to curtail bedrock birthrights of Tunisian women under the guise of reclaiming the lost-found Islamic identity of Tunisia. By delving into the way the Islamists concretely handled the women's rights issue and by unveiling the anti-women's rights stance of their celebrated female NCA representatives, this article demonstrates how the "moderate Islamists" used democratic processes to move toward theocratic rule, brandishing religion as a discursive and legal tool to justify the marginalization of women. It also argues that any move that has been made in the direction of democratization and enhancing women's rights has been the outcome of a protracted conflict between a culturally grounded and time-honored reformist flow, that has historically set Tunisia ahead of the countries of the MENA region in terms of Human Development Indicators, including women's rights, and a regressive transnational Islamist ebb that has historically dragged the country...

ПОЛИТИКО-ПРАВОВЫЕ ДИСКУССИИ О СОЗДАНИИ АВСТРИИ КАК ФЕДЕРАТИВНОГО ГОСУДАРСТВА

Austrian federalism is closely associated with political historical events during the period 1918-1920. The union of Länder relied on the recognition of their autonomy, adoption of state constitu-tions, and the possibility of establishing the representative bodies. Many historians of law and lawyers maintain that a new Republic would have been established as a centralised unitary state. Programs of political parties and the first constitutional drafts reflected the ideas of a federal state in which states had extensive powers and expanded representation in the federation. Political parties had repeatedly voiced their support for the Swiss federal model. Hans Kelsen’s constitutional drafts to be developed on behalf of the Secretary of State Karl Renner provided a solid foundation aimed to introduce federal constitutional principles and create a parliamentary republic. Constitution, system of federal institutions, as well as forms of government were widely discussed at the Länder conferences in Salzburg and Linz. Michael Mayr, Secretary of State, made a significant progress in overcoming disagreements. Mayr’s draft constitution focused primarily on achieving consensus with conflicting political parties. After the collapse of the coalition on June 10, 1920, political parties prepared and presented their constitutional drafts covering a broad range of issues: federal constitution, the Land par-liaments, and powers of states. From July 11 to September 23 1920 constitutional issues had been discussed by special subcommittee of the Constitutional National Constitutional Assembly composed of representa-tives of political parties, the state chancellery and Hans Kelsen as its scientific advisor. Delimitation of powers between the federation and the states, composition of the Federal Council, supremacy of federal law, indirect federal government were the most important issues of constitutional debates. Principle of equity and equality between the federation and the states was the key to overcoming most disagreements. Austria’s Federal Constitutional Law was passed on October 1, 1920. Despite the fact that the states did not participate in debates of the Constitutional National Assembly, they sent their representatives to the Federal Council in November 1920. However, the western Länder expressed their objections to the procedure for the adoption of the federal constitution. Efforts of the main social forces, their willingness to compromise resulted into a unique constitutional draft of the First Republic. The 1920 Constitution was a compromise solution between a centralized unitary state and a federation.

O MANDADO DE INJUNÇÃO NA ASSEMBLEIA NACIONAL CONSTITUINTE DE 1987-1988

O presente artigo descreve a introdução do mandado de injunção no ordenamento jurídico brasileiro por meio da análise dos discursos parlamentares ocorridos durante a Assembleia Nacional Constituinte de 1987-1988 e do processamento das propostas que introduziram este instrumento na Constituição em vigor. A partir do levantamento de dados primários constantes das bases de dados da Assembleia Nacional Constituinte, o trabalho apresenta mapeamento do trajeto percorrido pelas propostas que originaram os dispositivos constitucionais relacionados ao mandado de injunção, dentre os quais se destaca o artigo 5º, inciso LXXI, da Constituição da República. Por fim, alguns dos aspectos reputados como mais relevantes do processo de criação do instituto em exame são destacados com amparo em fontes secundárias, em que se incluem obras de juristas que participaram, na condição de membro ou assessor, da Assembleia Constituinte. Nessa última etapa, busca-se explicitar dados ou indícios que possam contribuir para a compreensão a respeito da conformação que os constituintes pretenderam conferir ao mandado de injunção.

TRAJECTORIES OF TRANSNATIONAL MOBILIZATION FOR INDIGENOUS RIGHTS IN BRAZIL

ABSTRACT While research on episodes of transnational activism has advanced substantially in recent years, our knowledge about how long-term trajectories of cross-border activism affect the formation of national social movements and their capacity to influence domestic institutional change is still limited. This paper addresses this gap by analyzing transnational mobilization around the political and economic rights of indigenous groups in Brazil. We show that early pathways of transnational mobilization generated a set of ideational, organizational and institutional outcomes that enabled previously marginalized actors to shape the directions of institutional change within the country at the time of the Brazilian democratic transition. We identify three initially uncoordinated trajectories of transnational mobilization taking place in the late 1960s and 1970s and show how they converged over time through two social mechanisms - institutional cross-referencing and social networking - to form an increasingly tightly knit inter-sectoral social movement that was capable of influencing institution-building during the period of the National Constitutional Assembly (1978-1988). We conclude with a discussion of the linkages between transnational activism and national social movement formation.

La inconstitucionalidad por omisión. Necesidad de reconocimiento de la figura en Colombia como factor garantista de los Derechos Humanos

<p>La Asamblea Nacional Constituyente colombiana no aprobó la figura de la inconstitucionalidad por omisión. Esta figura aplicada en otros ordenamientos jurídicos es fundamental para la defensa de los principios que dieron origen de la Constitución Política. La figura de la inconstitucionalidad por omisión busca garantizar que la voluntad del constituyente tenga plena realización y no que se desnaturalice. La materialización constitucional tiene su negación en la desvalorización inercial de la Carta; puede existir una violación por omisión en el desarrollo de los tratados internacionales de Derechos Humanos, debidamente suscritos y ratificados por un Estado, pudiendo comprometer el bloque de constitucionalidad.</p>

Constitution by the People or to the People: A Critical Analysis of Zimbabwe's Constitutional Development in View of the Constitution Select Committee (Copac) Led Process

This paper examines Zimbabwe’s constitutional development and analyses the view that constitutional making processes and their substantive outcomes are a reflection of the political interests of the rulers at any given time. It traces the background to constitutional reform in Zimbabwe back to the 1979 Lancaster Constitution. A compendious analysis of the Constitutional Commission’s draft of 1999/2000 is succeeded by a discussion of the 2001 National Constitutional Assembly (NCA) draft. In the main, this paper discusses the COPAC-led constitutional-reform process and some of the challenges obtaining in the ensuing political environment. These challenges are examined in light of the elite theory of constitutional making to advance the notion that the procedures of constitution making and the contents thereof are a clear reflection of the interests of the political elites of that time. Moreover, parallels will be drawn between the Lancaster and the COPAC processes where after it will be argued that the processes were not people driven ones but were negotiated. The comparative analysis will show that theses two documents were adopted as working constitutions during their times due to the mutual consensus between the interested internecine parties as prescribed by the elite cohesion theory, which is an off shoot of the elite theory. Therefore, this study downplays the democratic and pluralist theories as key drivers of constitution making process in Zimbabwe and advances the view that constitutional making processes and outcomes reflect the fears, aspirations and interests of the rulers other than the views of the masses.

Civil Society’s Contested Role in the 2013 Elections in Zimbabwe: A Historical Perspective

This article is a critical and historical assessment of the contribution of Zimbabwe's bourgeoning civil society to the restructuring of political and social relations in post-colonial Zimbabwe. The general objective is to contribute to the debate about how Zimbabwe's post-colonial civil society has theorised about change and, importantly, the deeply contested nature of the agency that this has generated. The article concentrates on how civil society structured itself and acted before the elections on 31 July 2013, which the ruling Zimbabwe African National Union-Patriotic Front (Zanu-PF) 'won resoundingly'. What emerges is that while the economic despair of the 1990s and the breakdown in the national consensus mobilised an almost 'popular democratic front' this changed course in the subsequent decade, weakening the 'popular' and 'democratic' nature of civil society agency. The foundation of 'liberal rights' and 'democracy' and 'good governance' powerfully amalgamated in the National Constitutional Assembly (NCA) and the 'No Vote' in 2000 became theoretically feeble and revealed a debilitating post-colonial impasse - an interregnum during which an urban-based intelligentsia-led theorisation and agency was momentarily checkmated by a violent nationalist authoritarianism.

Blogs, artefactos y política

This article problematizes the acceptance of the public in the virtual space emerging in the Ecuadorian political blogosphere, in the context of the National Constitutional Assembly. Beginning with an analysis of the spread of politics to virtual spaces, the blogosphere is approached as a political project, and technology as ways of ordering the world that society stabilizes. The political blogosphere is taken to be a regulated public space with the ability to order and classify the virtual world by means of social, political and technological tools. Finally, the study of this new virtual public space from a techno-social focus is proposed, taking into account virtual surroundings as a space in which conducts are formed.

The Constitutional Right to a Healthy Environment

Do people have a right to clean air, safe drinking water, and a healthy environment? Fifty years ago, the concept of a human right to a healthy environment was viewed as a novel, even radical, idea...

The trials and tribulations of constitutionalism and the constitution-making process in Zimbabwe

Constitutionalism in Zimbabwe has been characterised by controversy with citizens getting a raw deal. The colonial era was characterised by deprivation of basic rights and civil liberties. A plethora of constitutions were established to try and create a semblance of black representation. The post-colonial era was informed by governance structures provided by the Lancaster House Constitutional document which was a surrender document that brought the protracted liberation struggle to an end. The vagaries of the Lancaster House Constitution lived to haunt even those who fought for the country, leading to an expression of dissatisfaction with its contents. After successive indecisive elections conducted under the Lancaster House Constitution, the political and economic crises of 2008 led to an impasse and the signing of the Global Political Agreement which gave birth to the Inclusive Government. This paper will explore the general theory of constitutions from the Aristotelian classical perspective. Thereafter, the paper will also provide an overview of the concept of constitutionalism, followed by the case of Zimbabwe from the colonial era and the various constitutional documents that existed. The recent political development and the role of civil society herein represented by the National Constitutional Assembly (NCA) will be presented and how the civic group has articulated the constitution reform debate since its inception in 1997.

<b>UDR E TFP: A Força bruta que enterrou a reforma agrária na constituinte de 1987</b><br>DOI:10.5007/1980-3532.2011n5p1

The National Constitutional Assembly in 1987 by its Subcommittee on Agrarian Policy and Land and Agrarian Reform, made a fateful chapter in the history of Brazilian law, largely ignored in legal dogmatic works that address. This commission has been marked by cronyism and dribbling in the regiment of political groups that supported the dictatorship. It is questionable whether this episode has influenced an undemocratic rule or whether it means a step in the state of exception, depending on the totalitarianism he based the decision on its establishment. To do so, brings the contribution of Giorgio Agamben, the concepts of constituent and constituted power. It examines two subjects that were decisive in the defeat of Agrarian Reform in the constituent assembly and in the years that followed: the Rural Democratic Union (UDR) and the Brazilian Society for the Defense of "Tradition, Family and Property (TFP). Finally, just to cover the legal and social aspects of this process in the post-1988.

Celebrating the 20th Anniversary of Ulysses Guimarães’ Rebirth of Brazilian Democracy and the Creation of Brazil's National Health Care System

THE HISTORY OF DEMOCRACY in Brazil is tortuous. Since its independence from Portugal on September 7, 1822, Brazil has had eight constitutions, only two of which were created by genuinely democratic processes. Throughout its history as an independent nation, Brazil has contended with alternating periods of flourishing democracy and withering authoritarianism, the most recent of the latter being a military dictatorship that lasted from a coup d’etat on March 31, 1964, until 1985.

Constitutionalism, the electoral system and challenges for gvoernance and stability in Zimbabwe

In February 2000, Zimbabweans went to the polls to vote on a draft constitution for their country. The draft contained some important provisions, amongst other things, for the reform of the country's electoral system. The draft was rejected and a bitter general election campaign ensued in the second quarter of 2000. The general election held in June 2000 and the presidential elections in March 2002 were the most violent in Zimbabwe's electoral history. These developments raise significant questions relating to constitutionalism and the electoral process in Zimbabwe. It was an admission that both constitutional and electoral reform were imperative and indeed overdue that a state-appointed Constitutional Commission (CC) was set up in 1999 after a civil society-driven one, the National Constitutional Assembly (NCA) had been founded earlier in 1998. In particular, the political developments since 2000 have pointedly highlighted the challenge to address the increasing deficit in democratic governance and stability in Zimbabwe. This paper attempts to assess critically developments relating to constitutionalism and the electoral system, the linkages between them, and their significance for governance and stability.

La ilegitimidad de origen del segundo gobierno de Chávez. Caso venozolano

Durante el año de 1999 el presidente de Venezuela Hugo Chávez llevó a cabo un conjunto de acciones que hacen ilegítimo su actual gobierno. El autor menciona el uso que hizo Chávez del referéndum popular para aprobar dos normas inconstitucionales, (el Decreto No.3 y las Bases Comiciales), con el propósito de preparar el camino hacia una Asamblea Nacional Constituyente. En la Base Segunda de las Bases Comiciales se restringió el voto para obtener ventaja en las votaciones a través de la estrategia electoral conocida como "Kinos". El resultado fue un fraude electoral y la elección de una Asamblea Nacional Constituyente carente de legitimidad. En consecuencia, si la Asamblea Nacional Constituyente y la Constitución de 1999 carecen de legitimidad de origen, el segundo gobierno de Chávez es ilegítimo.

Zimbabwe: Constitutionalism, the Electoral System and Challenges for Governance and Stability

In February 2000 Zimbabweans went to the polls to vote on a draft constitution for their country. The draft contained some important provisions for, amongst other things, the reform of the country's electoral system. The draft was rejected and a bitter general election campaign ensued in the second quarter of 2000. The general election held in June 2000 and the presidential election in March 2002 were the most violent in Zimbabwe's electoral history. These developments raise significant questions relating to constitutionalism and the electoral process in Zimbabwe. They were an admission that both constitutional and electoral reforms were imperative and, indeed, overdue. A state-appointed Constitutional Commission (CC) was set up in 1999 after a civil society-driven one, the National Constitutional Assembly (NCA), had been founded earlier in 1998. In particular, the political developments since 2000 have highlighted the need to address the increasing deficit in democratic governance and stability in Zimbabwe. This paper attempts to assess critically developments relating to constitutionalism and the electoral system, the links between them, and their significance for governance and stability.

NGOs and the Constitutional Debate in Zimbabwe: from Inclusion to Exclusion

Two competing processes of constitutional reform occurred in Zimbabwe between 1997 and 2000. In 1997, the National Constitutional Assembly (NCA), led by churches, NGOs and unions, was formed and initiated a constitutional debate. In 1999, the ZANU(PF) government of Robert Mugabe attempted to reclaim the debate by launching a Constitutional Commission (CC) with a mandate to consult Zimbabweans and draft a new constitution, to be voted on in a plebiscite in February 2000. The governmental process was unprecedented in its participatory and inclusive nature. Opposition politicians, NGO activists and church people were included alongside ZANU(PF) stalwarts. At the same time, the rhetoric used against those in the NCA who rejected the invitation to participate grew increasingly exclusionary and intolerant. The ruling party was, in this period, beset by revelations of scandals, financial crises and declining social services. The constitutional debate was, at least in part, an attempt to regain control of political discourse, even as the state's ability to provide services was weakened. Instead, the public consultations provided a platform for the articulation of devastating critiques of the regime's political and economic policies in public meetings that were covered extensively in the media. The government's defeat in the referendum, in which voters rejected the draft constitution, legitimated the existence of organisations and ideas outside the hegemony of the ruling party/state. The voting public (albeit a largely urban selection of the potential electorate) affirmed the claims made by the NCA to speak and act outside the remit of the state. This rejection of the way in which politics had been done since independence set the stage for the violent and coercive politics of 2000 and beyond.

Alexis de Tocqueville and the Second Republic, 1848-1852: a study in political practice and principles

Chapter 1 Preface Chapter 2 Biographical Sketch and Previous Political Activity Chapter 3 The National Constitutional Assembly and the Crises of May 1848 Chapter 4 Drafting the Constitution Chapter 5 The June Days and their Aftermath Chapter 6 Revision and Passage of the Constitution Chapter 7 The President of the Republic and the National Constitutional Assembly Chapter 8 Minister for Foreign Affairs Chapter 9 The Roman Question and the Fall of the Ministry Chapter 10 Conservative Reaction and Leave of Absence Chapter 11 The Failure of Revision Chapter 12 The Coup d'Etat and Conclusion Chapter 13 Appendix Chapter 14 Bibliography Chapter 15 Index

Editorial

The articles in this general issue display a disciplinary spread fairly typical for this journal – anthropology, development studies, geography, history, literature, politics. We begin, though, with something of a new departure, an assessment of the state of a particular discipline, in this case, archaeology. We plan to carry coverage of this sort on a regular, if intermittent, basis in the future. However, rather than focusing on the findings of research as such, Nick Shepherd looks at archaeology in South Africa as a process of knowledge construction. He probes the social and political context and impact of the discipline at key moments of transformation in the past and explores where archaeology is and could, or should, be located in the present, in relation to science, culture and national identity.Current political and economic concerns drive the next three articles. Sara Rich Dorman throws light on the polarisation of Zimbabwean society in the run-up to the referendum on the constitution in 2000, with many in NGOs, churches and trade unions voicing devastating critiques of the regime's policies. The voting public affirmed the claims made by the National Constitutional Assembly to speak and act outside the remit of the state, while popular rejection of the government set the stage for the violent and coercive politics of 2000 and beyond. Mary Galvin and Adam Habib are likewise concerned with civil society and community empowerment in their analysis of the rural water sector in South Africa. They argue that donor aid has largely tended, through neglect of NGO involvement and local capacity building, to promote state-centric rather than community-oriented decentralisation. The European Union (EU) is one of the main funders examined, and it is South African trading relations with the EU which Richard Gibb analyses in the article that follows. South Africa's reintegration into the world economy via, for example, a vital trade agreement with the EU in 1999, has taken place on profoundly unfair terms, he contends, with the EU promoting fair trade where it could compete and yet being very protectionist about its uncompetitive agricultural sector.Isidore Diala takes us back to the apartheid years in his exploration of ideas of tragedy in the novels of André Brink, while also pointing to the contrasting political line in the writer's work since the democratic transition in South Africa. Despite Brink's seemingly proactive political stance against apartheid, his doomed, tragic (often liberal Afrikaner) political heroes are granted little agency, remaining passive in the face of powerful, implacable metaphysical forces. In post-apartheid society, however, Brink's 1990s work suggests the Afrikaner can invest in social action and hope to help transform the country and rewrite history.Heterosexual masculinity is the focus of the next two articles, albeit in very different eras and settings. Glen Elder challenges accounts of migrant worker hostel violence of the last two decades for over-emphasising ethnicity and failing to employ gender, sex and space sufficiently as analytic categories. A feminist geography alert to patriarchy's links with compulsory heterosexuality can also help interpret the marginalisation of women from contemporary debates about hostel conversion. While Natasha Erlank's historical gaze is rural, not urban, and centred on the eastern Cape, not the Rand, she too is portraying male solidarity, in this case in the face of colonial and missionary disapprobation of customary practices around gender and marriage. Regardless of whether they were Xhosa, Thembu or Mfengu, Christian or unconverted, African men testifying to the 1883 Commission forged, she argues, a certain commonality of approach, perhaps even an embryonic ‘nationalism’, based on the subordination of women.

O voto de saias: a Constituinte de 1934 e a participação das mulheres na política

ESTE artigo trata da participação política da mulher, no quadro das transformações trazidas pela Revolução de 1930 e, sobretudo, pela perspectiva da eleição da Assembléia Nacional Constituinte, em 1934. Situado no campo da chamada microhistória, a análise está baseada nos resultados de uma enquete, realizada pelo Diario de Pernambuco, no início de 1933. Dezenove mulheres de classe média e da elite urbanas de Pernambuco, Paraíba e Alagoas, e duas associações femininas foram ouvidas pelo jornal, a propósito do momento político, das tarefas da futura Constituinte, do papel político e do lugar que julgavam dever ser o da mulher no processo de transformação vivenciado no Brasil, naquele período. Este importante e pouco conhecido material foi tratado com o objetivo da fazer falar as depoentes de então, embora trazendo o aporte histórico que as situa e as contextualiza.