On being a Constitutional Advisor: Some Thoughts, Myths and Misconceptions

by Elias Blum

Almost all countries in the world have a constitution – defined as a supreme and fundamental law that is harder to change than ordinary laws and that defines the state, organises powers of government between different institutions and branches, declares foundational values and principles, and specifies the rights and duties of citizens.

Constitutions, in this sense, are largely a product of the American (1776) and French (1789) revolutions, but spread over much of Latin America in the 1820s and over much of Europe either in the aftermath of the Napoleonic era (Sweden 1809; Norway 1814; Netherlands 1815; Belgium 1831) or after the revolutions of 1848 (Piedmont-Sardinia 1848; Denmark 1849; Prussia 1852).

From there, government by Constitution spread into other parts of the world during the late 19th and early 20th centuries: the Romanian Constitution of 1866, the Ottoman Constitution of 1876, the Japanese Constitution of 1889, and the Persian Constitution of 1906, are some early examples of constitutionalism beyond the North American / Western European core.

The rise of constitutionalism has generally preceded the rise of democracy. Within Europe, many countries achieved constitutional government under a limited suffrage, and then expanded the suffrage, gradually transforming constitutional monarchies into democracies (this was the typical pattern in the Benelux countries and Scandinavia). Elsewhere, such as in Latin America, democracy was frequently interrupted by coups or interventionist military dictatorships, or undermined by corruption, but nevertheless a constitutional tradition developed that, over time, came to be relied upon to mediate conflicts between factions of the elite, and on this tradition the Latin American transitions to democracy were able to build.

The decolonisation era in the 1940s-1980s resulted in a massive expansion of constitutionalism across the Caribbean, Africa, the Middle East, and South and East Asia. In a small minority of cases, these constitutions actually ‘worked’, in that they performed the sorts of power-organising, rights-protecting, conflict-mediating functions that we expect Constitutions to perform in democratic countries: India (1950) is the most notable of these rare cases.

In most of these newly decolonised countries, however, the constitutions served other, and not necessarily democratic, purposes: the constitution was a way for the regime to advertise itself, to solidify and legitimate its rule, and to communicate its values to the citizens.

Yet, even in situations where the government is clearly autocratic, constitutions usually still have some purpose to them; they can provide, for example, an ordered succession mechanism in a non-democratic regime that avoids coups and civil wars (e.g. some of the Arab monarchies) or can be a means of structured transition from one sort of regime to another (e.g. Myanmar, 2008).

The Soviet-influenced Constitutions were of another type: they didn’t constrain the government, they expressed how the government saw itself. Yet, even then, opponents to Soviet rule in Poland and in East Germany used the terms of these constitutions to, at least, hold them to their own professed norms.

So even when democracy is absent, incomplete or fragile, the stakes in constitutional negotiations are high. There are winners and losers, but it’s not a zero-sum game; there are mutually acceptable compromises that can help ensure peace, stability, a modicum of human rights, and even a bit of good government.

Another misconception is that Constitutions are made once and for all at the foundation of a country. It’s true the constitution-making is a relatively rare event, but it is not unusual for a country to adopt a new constitution after a regime change, revolution, coup, change in boundaries, or other abrupt change. The average life expectancy of a constitution is about 20 years (although, like all averages, that is misleading: a typical ‘successful’ constitution might last 50 or a 100 years or more, but there are a lot that ‘die’ within 5 years).

In addition to these major changes, lots of countries go through periods of ‘constitutional maintenance’, where blocs of amendments are passed. That is actually a fairly common occurrence. Constitution-making is not a one-off event. It’s a continually renegotiated process.

The process of constitution-making is a dance between the Four Es: (1) elites (political party leaders, entrenched bureaucracies, military and judicial elites, financial elites, the media); (2) experts (academics, lawyers, well-informed civil society actors); (3) everyone (members of the public, who might for example have to vote of a constituent assembly or approve the constitution in a referendum); and (4) external actors (the US State Department, foreign aid donors, international corporations). Often these have different and competing interests and priorities. They speak to different audiences, sometimes in different languages.

Our job is to not to be prescriptive (we never say, ‘This is the type of constitution you should have’), but to help those engaged in the constitutional discussion to think more clearly about the range of possible constitutional options and their likely consequences. If you want to know about the merits of presidential or parliamentary systems, about who should have the power to call a referendum, about the design of electoral systems or second chambers, then the role of the constitutional designer is to help provide that information and to work through it with the actors; to help them to reflect, in their own context, on this comparative research. This will hopefully lead to a more informed, more constructive, conversation and better outcomes.

We also spend a lot of time trying to explain why constitutions matter. The problems with accountability, stability, effective governance, public service provision and democratisation might, in many cases, have a constitutional dimension to them. That’s not to say we can fix everything with constitutional change, but it can often help.

Constitution-making is not a static art. Constitutional technologies have developed over the last 250 years, and often these developments have emerged from countries in the global south, which have had to learn how to do constitutional democracy the hard way. So part of our job is to say to folks in Country X, ‘No, don’t just look at the USA or Western European countries, also look at countries with a similar history to your own, in your own region of the world, at at a similar level of development.’

Moreover, constitutional design is not always solely a matter of choice. There is an increasing body of international norms and international human rights law that states have to abide by if they are to be taken seriously. Part of our job is to advise on this side of things.

Incidentally, if you are American, I really recommend reading the Constitution of Kenya: it shows what a Constitution based broadly on American principles (presidentialism, separation of the powers, majority elections, decentralisation) looks like with 21st century constitutional norms and technologies. If you are British, I invite you to read the Constitution of India, to see what a Constitution based on 20th century British principles looks like when written down.

In many cases, officials are not very open to advice. For the most part, they want to know the minimum they can get away with to keep the US State Department, the EU (if they are in the European neighbourhood) and foreign investors happy). Civil society actors, opposition parties, local academics, sometimes the media, can be more receptive – but that’s ok, because what we do, by empowering them, is to help them to engage more forcefully and more critically in the debate, and to put pressure on the government.

Also, at times of constitution-making, governments don’t hold all the cards. Often, they need the agreement of the opposition – both to satisfy formal requirements for ratification or amendment, which typically require a supermajority – and to gain legitimacy for the constitutional project. In such cases, they may be more willing to listen.

I would not say my work (personally) has had much tangible impact, but I think it has had intangible impact. I cannot point to a clause in a constitution and say, “I did that”, but I can point to meetings and discussions where people have left saying, “Yes, I’ve got it, we need to think about this, campaign for this, inform people”. It is a slow and uncertain process.