Considerations and Reconsiderations on Constitution Making, Part 1
By Sumit Bisarya
On December 17, Chileans – for the second time in two years – voted to reject a draft constitution bringing to an end the long constitution making process which emerged from the social uprisings of November 2019. On the same day, Chad held a referendum to promulgate a new constitution drafted under the auspices of a military junta, just as happened in Mali a few months earlier. Constitutions continue to be in the news – sometimes in the foreground, sometimes in the background – with a crucial, but often misunderstood, role in democratic transitions and safeguarding democracy,.
As head of the Constitution Building Programme at International IDEA, I am fortunate to have the opportunity to engage in regular conversations about constitution making with individuals around the world charged with negotiating and writing constitutions and with mediators involved in supporting conflict to peace constitutional transitions. We also work with a broad range of scholars from around the world with expertise on constitutions and constitutional change. Through my years of experience in this field, I have come across a number of misconceptions despite the overall importance and prominent role of constitutions in contemporary politics.
Recently, I co-authored a report with Madeleine Rogers on constitutions and democratic backsliding. Our report includes discussions with constitution makers and politicians from a wide range of countries including Armenia, Barbados, Belarus, Belize, Chile, Georgia and Poland. Their jnput shaped the big picture lessons we provide for those engaged in the design of constitutions.
I focus here on three common misconceptions we found about institutional design and backsliding. I start with a discussion about the role of institutions. Then I consider the framework of constitutions and the role of formal and informal safeguards. Finally, I consider ways to promote alternative voices in society.
Do Institutions Matter?
Recently, some have wondered whether institutional constraints even matter anymore. Won’t anti-democratic political leaders who have significant popular support just find a way to dismantle democratic safeguards regardless of how they are designed? I find constitutional design does matter. Strong institutions are a necessary, but insufficient, source of resilience against backsliding. For example, the institutions of the US Constitution – federalism, judicial independence and mid-term elections – combined to thwart many of the attempts by President Trump to subvert democratic values.
On the other hand, in 2010 Fidesz won enough seats in the Hungarian Parliament for the two-thirds majority required to amend the constitution, but not the four-fifths majority required to replace the constitution. Undeterred, Fidesz amended the constitution to delete the replacement clause – which, if drafted well, should have required a four-fifths majority for its amendment or deletion. Whether in the end this would have mattered is debatable, but certainly bad institutional design made Fidesz’s task easier.
Perhaps it is inevitable that popular leaders intent on subverting democracy will find their way around any rules. So, while leadership, political culture, history and norms can serve as additional guardrails, good rules can, at a minimum, act as a ‘speed-bump’ to make subversion more difficult. Badly designed rules make backsliding easier.
The Safeguards of Constitutional Democracy are Not Always Constitutionalized
In many cases, governments have been able to dismantle key constraints on executive power through changes in legislation, regulations or rules of procedure – i.e. by simple majority vote. Indeed, in most cases significant backsliding occurred without any changes to the constitutional text.
To provide one illustrative and common example, over sixty countries in the world constitutionalize the judicial retirement age, but not in El Salvador, Hungary or Poland where it is regulated by statute – and thus governments in these countries were able to remove large numbers of judges – and replace them with their own appointees – simply by lowering the age of retirement through amendments to the relevant legislation.
This raises perhaps the most common question I am asked in my work – what should go in the constitution and what should be left to legislation? Clearly, many details cannot go into the constitution, but constitutional designers should focus on the critical elements of the rules of the democratic game or the democratic constitutional core as termed by Rosalind Dixon and David Landau.
Beyond Vetoes on Majorities
While constitutional democracy necessitates constraints on majority rule, it also depends on allowing the majority to govern. So, when it comes to protections against backsliding, we need to exercise caution in resorting to increasing constraints on elected governments’ ability to deliver on their mandate. As Samuel Issacharoff argued convincingly in his book Democracy Unmoored, a large driver of backsliding and populism is genuine discontent among the electorate that politics is unable to deliver for the majority and that courts, state bureaucracy or other forms of the ”deep-state” conspire against the popular will. Adding more veto-points to block majority decisions creates popular frustration and further emboldens populist leaders to depart from institutional rules and norms.
So, what other avenues exist for constitutional designers to temper majoritarian excesses? I highlight here two options from the report. The first is constitutional mechanisms for delay. It is rare that changes to the legal and institutional framework of democracy necessitate extreme urgency, however delay mechanisms can promote deliberation and provide time for the political opposition to mobilise themselves, the public and the international community. Stark examples of delay mechanisms come in the form of constitutional amendment rules which require one legislature to propose an amendment, and the subsequent legislature to approve (as is the case in the Netherlands and Sweden). But more common examples are also important. For example, a Polish politician recently informed me that delays in passing legislation due to Senate procedure provided valuable time for both national opposition and mobilisation of key international actors such as the Venice Commission.
Building on the idea of delay, another option to consider is what we call ‘trigger and response’ mechanisms, whereby a particular action or condition triggers a particular institutional response. For instance, when certain conditions are present, political actors can invoke a state of emergency. So, can something similar be imagined for threats to democracy? Certain examples already exist – in Belgium, for instance, when there are serious threats to democracy, judges are permitted by the Judicial Code, even encouraged, to engage in behaviour such as protests which would otherwise be prohibited (‘’Lorsque la démocratie et les libertés fondamentales sont en péril, la reserve cede devant le droit d’indignation”, many thanks to Tom Daly for this example). In Sweden, if legislation is proposed which may affect fundamental rights, ten MPs may request a delay of up to twelve months. Could this concept be expanded? For example, where legislation is proposed which affects elections or human rights could a small number of MPs request a report from the electoral commission or human rights commission which must be debated in parliament, in this way increasing the public spotlight and allowing time for mobilisation of the opposition, the public and relevant international actors?
All this said, thinking about ways to make constitutions more resistant to backsliding is fine in the abstract, but the challenge in practice is that processes of constitutional change generally happen in the wake or midst of crisis and therefore are often driven by more retrospective concerns. This is not always the case, however. In recent years, both the Netherlands (2018) and Sweden (2022) have released reports from more forward-looking bodies established to consider ways in which the legal and constitutional framework for constitutional democracy can be strengthened. Ad hoc constitutional review poses its own challenges – such processes could themselves be vulnerable to partisan, anti-democratic abuse and constitutional negotiations require political energy which might best be spent on quotidian concerns of ensuring democratic governance is delivering dividends for people today. Nobody likes to think about fixing the roof while the sun is shining, and this is true in terms of constitutional review as it is in life. However, I am increasingly convinced that forms of constitutional protections for democracy which were considered adequate in decades past are vulnerable to the modern brand of anti-democratic populism, and prospective review processes – if carefully designed and conducted with multi-partisan support – should be encouraged in otherwise stable democracies.
About the Author
Sumit Bisarya heads International IDEA’s Constitution-Building Programme, which produces global comparative knowledge, conducts policy advocacy within the field of constitution-building and provides technical support to in-country constitution reform programmes. Bisarya also serves as Head of Mission for International IDEA in the Netherlands.
In 2020-2021, Bisarya was seconded to the UN as the senior constitutions advisor for the Department for Political and Peacebuilding Affairs. Prior to joining International IDEA, he worked with the International Development Law Organization based in Rome, Italy, where he was manager of IDLO’s field programmes. He designed, managed and implemented rule of law assistance programmes in Afghanistan and East/Horn of Africa (Ethiopia, Kenya, Somalia and South Sudan).
Bisarya has been engaged in constitution-building assistance programmes in a range of countries and contexts including Chile, Haiti, Myanmar, Nepal, the Gambia, Kenya, Somalia, South Sudan and Ukraine.
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