A constitution is the fundamental law upon which all other laws of a country are based and must conform. The constitution is the written (sometimes unwritten) basic definition of the character of a country and the structure of the government in that country.
It is a relatively rare opportunity for a legislator to be directly involved in the drafting and adoption of a nation’s constitution. But there is a growing trend that elected representatives should be actively involved in the development of such a crucial document.
Objectives of Constitution Building
- Reconciling conflicting groups
- Strengthening national unity
- Empowering people and preparing them for participation in public life
- Elaborating national goals
- Promoting knowledge and enhancing the legitimacy of the state
The writing of a constitution often occurs under exceptional circumstances, such as the independence of a nation or after a revolution or political transition from one form of government to another. Amendments to a constitution are more commonplace, but any change to the fundamental law of a country must be done with great care.
A critical aspect of constitution writing is to ensure the document reflects the interests of the vast majority of the citizens of a country. A constitution should be based on a consensus and the document should reflect a set of principles that all citizens in a country can agree upon. A constitution should be above partisan politics and should define the terms of government and interaction by which any party or political group will respect.
There are various means by which a constitution can be drafted including direct participation by citizens, an appointed working group of experts and an elected body of representatives. With regard to an elected body, its role can be limited or very active, including:
• Adoption – Where a small working group or a government ministry writes the constitution and conducts all consultations and submits a final draft to a parliament for approval.
• Consultation – A permanent or temporary assembly is provided with a draft of a constitution and its role is to conduct public consultations and seek input from citizens and organizations before suggesting amendments to the document.
• Drafting – The parliament, either a permanent or temporary one, is directly responsible for developing the wording of the constitution. Either before and/or after the drafting of the document, the assembly should seek public input through consultations. Approval of the final document can rest with the Assembly or a referendum may be required.
The Role of Constituent Assemblies in Constitution Making
The significance of the common phrase “constituent assembly” is that it refers to a body representing the people that is vested solely (or mainly) with “constituent power.” An assembly is thus the body designed to represent the nation, assigned—at a minimum—the task of debating in detail a draft constitution of the country, and of approving that draft. It may or may not also have the task of preparing the first draft, or have the final responsibility for passing it into law.
Constitutional assemblies differ in size and composition and in how their members are chosen. They also vary in their roles, although they must at least discuss and adopt a constitution.
The role of the legislature in the constitutional process
Parliament may have—or give itself—functions in relation to the constitution-
- Making process and debate the content of the constitution
- Pass the laws setting up the process
- Appoint members of the constitutional commission
- Vote the necessary resources for the process
- Insist on overseeing the process
- support the implementation through legislation
Institutions and procedures for developing the constitution framework
In addition to goals, it is usual to agree on the institutions and procedures for process. This is normally the responsibility of the legislature or the executive. A legal status is a requirement to denote the functions that are agreed upon. Sometimes it is entrenched through a detailed act by the parliament and at other instances the process is prescribed in a previous constitutional instrument.
Support to the Constitution- making process
In the field of parliamentary development, it is generally understood that the content of a constitution is to be determined by the citizens of the nation. However, there are two aspects to the work in which capacity support can be provided.
- Support to the Constituent Assembly: First, where a decision has been made to create a Constituent Assembly, support can be provided in the development of the temporary institution. A constituent assembly is a body that acts like a parliament but has as its main mandate the creation and adoption of a constitution.
- Public Consultations: Even though a constituent assembly may be elected and, therefore, the members are chosen to represent the citizens, it is always a good idea to conduct extensive public discussions about the content of the constitution. The greater the extent of the consultations, the greater the legitimacy of the document with the citizens of a country.
For more information on public consultation in the constitution-making process, please click here.