by Sumit Bisarya, Lawyers for Justice in Libya, December 24, 2015
Constitutions cannot build roads or bridges. They cannot cure disease, educate children or put food on the table (at least directly). A few countries, such as the United Kingdom, seem to get by perfectly well without a written Constitution at all. So why should we care about Constitutions?
- Constitutions define our community and national identity
As well as defining physical boundaries to the territory, Constitutions can define who is inside the community, and what our community stands for. Regarding the former, Constitutions define who is a citizen, and how one becomes a citizen. They also may recognize certain groups which are part of the constitutional community. As for the latter, constitutions often speak to what our community is about – for example the French Constitution defines France as “an indivisible, secular, democratic and social Republic.” Both Tunisia and Egypt have recently used the term “civil state” to define their new Republics, Afghanistan is declared to be an “Islamic Republic” while the Constitution of South Africa lists a set of founding principles for the state.
For this national vision to ring true it must be defined by the people of the nation themselves.
- Constitutions declare and define the rights of citizens
Most Constitutions now contain a “Bill of Rights” which lists the rights of citizens (and in some cases non-citizens too) which cannot be infringed. In so doing, the Constitution constrains the power of the government, and empowers citizens to enjoy civil, political, economic, social and cultural rights. Constitutions also provide mechanisms to protect and enforce these rights, by directing the legislature to make laws in line with constitutional rights, and empowering judges to protect those rights when they might be violated.
The bill of rights provides perhaps the closest link between the constitutional text and the lives of citizens. How, exactly, the text defines these rights can be the difference between an authoritarian and a free and democratic society. The citizenry should engage with the constitution making body not only on which rights should be included, but should pay close attention to how those rights can be protected and enforced, and any possible loopholes in the constitutional rights framework.
- Constitutions define the organs of the government, and provide the “operating manual” for their functioning
Constitutions provide for the organs of the government necessary for carrying out its functions – passing, enforcing and interpreting laws, carrying out relations with foreign governments, providing for national security, printing money and regulating the economy etc. Democratic constitutions ensure that government power is constrained through the separation of powers, creating different branches of government for different functions, each of which has some control over the other.
Constitutions also provide for how power is transferred (elections) and mechanisms through which those who seek to abuse power can be removed or constrained (e.g. through impeachment or recall mechanisms, or through the creation of independent commissions which monitor the actions of government).
This is a critical function of Constitutions and can be a critical determinant in fueling or resolving conflict. It determines how power is shared among the community, how the citizens can hold their government to account and how power is to be rotated over time. If the government is truly to be representative of, and responsive to, the people, the citizenry must have a strong voice in how the Constitution defines the system of government.
- Constitutions can provide protection for marginalized groups within the nation
Nations are often made up of different groups. Be these ethnically, religiously or territorially based, such groups often desire some form of power over their own affairs, while remaining part of the national community. Where these groups are concentrated territorially, Constitutions can provide for some form of decentralization of power, including federalism where different levels of government exist, at national and sub-national level, each with its own protected sphere of power. Constitutions define the powers to be allocated to each level, often given subunits power over “local” issues such as healthcare and education, and provide for means of resolving disputes between subunits and the central government (and among subunits).
Constitutions may also provide for other forms of limited autonomy. For example, religious groups may be permitted to resolve their private interactions under their religious law, linguistic groups may be empowered through the recognition of more than one official language, and preservation of the cultures of both may be preserved through autonomy over schooling, for example.
Group recognition and protections can be a crucial ingredient in a successful constitutional formula. In divided societies, constitutions must strike the right balance between providing sufficient autonomy to subgroups and subunits, while simultaneously reinforcing the national bonds which cut across the societal divisions and tie the different groups together as one nation.
Like the bill of rights, this is an area of Constitutions which often attracts the public interest. It is important to ensure that the relevant parts of the Constitutional framework truly represent the groups’ interests as a whole, and not just the interests of those purporting to represent the group.
- Rigidity and Flexibility
Lastly, Constitutions protect themselves. By setting the requirements for amending the Constitution at a higher standard than regular law-making, Constitutions ensure that these fundamental rules are beyond the reach of transient political majorities in government. Certain rules (for example the bill of rights, founding principles, nature of the State and presidential term-limits) are sometimes fixed permanently, with the Constitution providing that they may never be amended.
At the same time, Constitutions should not be fixed beyond the reach of future generations completely. The needs and characteristics of societies change over time, and Constitutions should be able to adapt to the evolving context when the need arises.
The constitution making process is a rare opportunity for the people, as the sovereign power, to define the rules for how they will be governed. Ensuring those rules are adaptable to changing circumstances, but that such changes require a broad base for consent, ensures the people maximize these opportunities.
In short, the constitution building process is a rare opportunity for the people to come together to debate the fundamental questions about who we are as a nation, who we want to represent us and how we see the relationship between government and citizens, and among the citizenry. While a new Constitution may not feed the hungry or build a school overnight, decisions made in the course of its drafting will define the nation’s future – and that of its citizens – for generations to come.