At the heart of any failed state is a constitution that is not performing – either because the balances its drafters struck between competing demands on the document were wrong, or because the machinery, will and resources to make it work are woefully inadequate.
Worldwide, constitutional setups are in a state of flux. As states across the Middle East, Africa and Asia look for successor arrangements to dictatorship, minority rule or anarchy, the pressure on new constitutions to provide a stability that can be hard-wired into the foundations of the state is immense. And even in the UK, the Commission on a Bill of Rights is examining how long-established principles might be fundamentally recast.
Taking the lid off
Whether it is in Europe or central Asia such a ‘recasting’ has the effect of removing the controls on previous settled arrangements – whether those arrangements were based on an existing constitution, or a distribution of power based on the brute strength of army or militias. All the old certainties are suddenly on the table – available for renegotiation. Respected South African jurist Albie Sachs, a former ANC member and the subject of an assassination attempt while living in exile, was later involved in drafting the country’s post-apartheid constitution – a process that has been widely praised.
Sachs tells the Gazette that a key challenge is to ‘find agreement on a new infrastructure’ that needs to stand the test of time, in a context where the new constitution is ‘like a peace treaty’. The notion of the constitution as ‘peace treaty’ is familiar to lawyer Gerald Shamash of Steel & Shamash, visiting professor of public and constitutional law at the University of Derby. An election law adviser to the Labour party who has also advised Commonwealth countries on constitutional matters, he has a long record of supporting and monitoring constitutional change as a member of various international delegations.
Shamash recalls time spent in Malawi on such a delegation after Hastings Banda lost power in 1994, when the country was moving from one-party rule: ‘There was a lot of jockeying for position among ex-Banda regime people – among the jubilation and positive atmosphere, they were trying to involve themselves in the creation of a new constitution.’ Similarly, in Uganda there were former Idi Amin regime members at the meetings which set out to reform the country’s laws and constitution. In South Africa, although the process took six years, including many breakdowns in the process, Sachs notes: ‘It’s not technically difficult to draft a new constitution. You are often literally cutting and pasting text from elsewhere.’ But the time taken is important, he stresses. The constitution needs to provide an ‘enduring foundation’.
In the case of South Africa, that meant standing firm against a setup that resembled a peace treaty too closely. The pressure at home and abroad to enshrine protected rights for the white and Asian minorities in the new constitutional setup was strong. But while such an arrangement might have allowed swifter progress, Sachs maintains that given the country’s history of division, it was right to proceed towards a constitution where rights were not based on race or ethnicity. And while Libya’s draft constitution, written while the rebel fighters were still battling Muammar Gaddafi, was praised for its emphasis on human rights, in a lasting settlement for the country, Sachs stresses the need to take time over finding a constitutional ‘foundation’ that can endure.
Security and development
The pressure to move quickly in part comes from the recognised role a new constitution has in establishing security and securing development. That is of course a two-way dependency. Former Foreign Office minister Lord Malloch-Brown, now chair of FTI Consulting, pushed this link when head of the UN Development Programme (UNDP). ‘Previously there was a feeling that this area was beyond the remit of delivering our development goals,’ Malloch-Brown tells the Gazette.
But, he says, political instability, and the ability of countries to gain maximum benefit from development efforts led him and colleagues back to the conclusion that constitution-making and support was a necessary part of their work. Under the UNDP – projects such as the Somalia Constitution Support Project – moves are begun to promote reconciliation, peace and stability through a constitution-making process at the federal level, in line with the stipulations of transitional charters. To complement those high-level negotiations, projects like that in Somalia focus on ‘capacity building’ and civic education.
In negotiations, Malloch-Brown believes, the temptation in a post-conflict or post-dictatorship country is to create a tamper-proof constitution that is incredibly difficult to alter. That is an error, he believes. ‘You need some flexibility built in,’ he advises, or there is a risk of being stuck with constitutional parameters that work against stability. It can be too tempting, for example, to design a constitution backwards from the desire to exclude a future dictator, rather than looking forwards to a time when mature institutions and strong civic tradition support a functioning democracy.
A focus on the strength and independence of the courts is crucial, Sachs argues. That is not just about the place of the courts in the constitution, but also about their conduct once a constitution is in place. ‘The strength and independence of the courts is vital to give credibility to the constitutional project,’ he explains. The courts will only be able to live up to this role, Sachs cautions, with the support of a ‘strong civil society’ and a strong legal profession. On the latter point, recalling constitutional cases he heard as a judge, he says the court benefited from ‘well-prepared cases - thoughtfully selected pieces of litigation’.
It is an argument that underlines the importance of international support for lawyers and the rule of law in vulnerable or fledgling jurisdictions. The range of good work done here would take in projects such as the covert trip to Fiji completed by Law Society Charity chair Nigel Dodds last year to report on the condition of the country’s ‘rule of law’.
As the Gazette reported, Dodds’ mission concluded that the rule of law ‘no longer operates’ in the country. The independence of the judiciary ‘cannot be relied upon’ and ‘there is no freedom of expression’. The report was able to highlight the central role of Fiji’s attorney general, Aiyaz Sayed-Khaiyum, in ending the rule of law by limiting the power of the courts and ending the independence of legal sector regulation. It further revealed the extent to which the government depends on the appointment of judges and senior law officers from Sri Lanka on short-term contracts.
Also under scrutiny was legislation that removed the jurisdiction of the court to hear or determine a challenge to any government action (supplemented with a practice direction). Commonly such pieces of critical external scrutiny provoke a furious response from the government being scrutinised. But they can also increase the pressure for constitutional change. Fiji is currently in the throes of creating a new constitution. However disingenuous, reaching for constitutional reform has also been the response to unrest of leaders in Syria, Bahrain and Qatar, to name a few.
Supporters of the priority accorded to such scrutiny, often through external support, are painfully aware that their efforts fall short of ‘hard power’. And the niceties of drafting a durable constitution, and creating a stable legal community can seem of secondary importance compared with immediate concerns over security.
But that should be set against the significance accorded to the web of support needed to embed a constitution and the rights it creates once it is in place. As professor Paul Hunt concluded at a human rights conference held at the Law Society last October: ‘Rights are not self-asserting – to be transformed from "bumper stickers" they need to be asserted – applied.’
Up for discussion: constitutional changes worldwide
The Commission on a Bill of Rights, led by barrister Sir Hugh Lewis, has a wide remit. Among options put to the commission are the possibility of enhanced rights to administrative justice and trial by jury, and additional ‘socio-economic’ rights.
But it may also be a vehicle to take forward changes to principles brought directly into UK law by the 1998 Human Rights Act. The eight-member commission will report by the end of 2012.
Currently suspended from the Commonwealth, and criticised by the Law Society for having ‘lost the rule of law’, Fiji’s interim government has said it will introduce a new constitution ahead of elections in 2014 (there have been no elections since a military coup in 2006). The process has coincided with legal action against opposition figures, and stalled on issues of ‘immunity’ from prosecution for members of the current government. Nevertheless, its work under chairman professor Yash Ghai continues, and has received representations from government, the armed forces, opposition groups, trade unions and civil society organisations.
Begun under the aegis of the UN Development Programme, the Somalia Constitution Making Support Project promotes reconciliation, peace and stability through a constitution-making process at the federal level. It also looks to promote civic education, and the strength of institutions that can support a new constitution.
Following elections to Libya’s 200-member parliament in July, a constituent assembly is charged with drawing up a new constitution that will then need to be confirmed in a referendum. Fresh elections would follow within six months. The draft constitution, drawn up by opposition forces before the late ruler Muammar Gaddafi lost power, was praised for its emphasis on human rights principles. There has since been speculation that a new constitution may make concessions to sharia law principles.
Eduardo Reyes is Gazette features editor