Saturday, 21 July 2012

An International Standard for Constitutional Processes

In her chapter within Framing the State in Times of Transition, published by the United States Institute for Peace, "Constitution Making and the Right to Take Part in a Public Affair," Vivien Hart concludes by identifying a need for procedural constitutional standards to operate as "an advisory code of sufficient generality to provide a common starting point of principle for constitution-making processes in many different national contexts."  She then cites the book in which her chapter appears and this work by International IDEA as good examples of beginnings towards such an international advisory code.

While I agree wholeheartedly with Hart that an international standard for constitutional process could provide a ready-made blueprint for constitutional process that could help countries in transition navigate and legitimate the creation of their framing document, I find that her method of identifying a process quite shallow.

Hart herself identifies examples from the last 25 years--Uganda, South Africa, Canada--to cull recent methods of participatory constitution-making.  She seems, as much of the international scholarly community, to think only in present-tense in finding constitutional examples and procedures worth emulating.  Yet many of the questions she raises--for instance, how to make ratification more meaningful and how to involve the people in the selection of delegates--were issues already discussed and determined successfully within the annals of historical experience.  Why are we reinventing wheels already perfected and functioning?

Too, it seems unbelievable that we can only look to the last 25 years for best constitutional practices.  Can one really know whether a constitution has been legitimated in that period of time?  Isn't the test--or at least an important factor--of a constitution's acceptance among a people it's ability to transcend and descend through generations?  In short, aren't the best constitutional practices to be taken from history, and the older the better?

If we are to create an international standard for constitution-making, I strongly suggest that the analysis include examples of procedure that have proven a constitution can be accepted throughout generations in time. 

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