New report on rule of law assistance in constitution building processes

by Rhodri C. Williams

I am very happy to announce the publication of a report I wrote last year on constitutional assistance for the Folke Bernadotte Academy in Sweden. The aim of the report is to discuss the trend toward greater international assistance to the ‘constitution-building’ processes that tend to accompany contemporary political transitions and post-conflict state-building efforts. It begins with an analysis of some of the debates that have characterized the emerging rule of law field of ‘constitutional assistance’ and goes on to describe the role of various actors at the international and regional levels.

The writing of the report was satisfying at a number of levels. One one hand, constitutional assistance is emerging as a very interesting field of activity, with more attention (if not always resources) from the UN Rule of Law machinery (not least in the form of a Secretary General Guidance Note), and a very active effort to digest and disseminate lessons learned, most recently in the form of extensive handbooks on constitution building by both Interpeace and International IDEA. The work also allowed me to re-engage with debates I had lost track of since my prolonged bath in post-conflict constitutionalism in Bosnia a decade ago. And not incidentally, it put me back in contact with Gianni La Ferrara, an old friend and constitutional guru from Bosnian days of yore.

The subject matter is inherently interesting, sitting as it does at the juncture of transnational dissemination of norms, international human rights and rule of law practice, power-sharing in divided societies and peace building. It is not without controversies as a result. Without going into detail on all of them (the report and its executive summary are available here), I will expand briefly on one which I think is perhaps most interesting, namely the question of whether the aim of ‘democratising’ constitutional processes comes into conflict with the tendency of international rule of law actors to interpose human rights norms into them.

Since the end of the Cold War, new generations of constitutions have symbolized the ambitions of many countries to turn the page on a troubled past. However, as witnessed by many of the controversies surrounding current constitution-building processes in the wake of the Arab uprisings, the act of re-writing the social contract can reflect or even exacerbate longstanding ideological, economic and ethnic tensions. International actors have played a mixed role in these processes and have all too frequently fixated on promoting solutions they were readily familiar with without having taken the time and effort to grasp the nature of the problems at hand.

Criticism of such ‘supply-driven’ approaches began to proliferate at about the same time that the UN began to get serious about post-Cold War lessons-learned and the first proponents of new and more democratic approaches to national constitution building began to speak out. The ‘new’ or ‘participatory’ constitutionalism that has emerged from these processes is one that is based on a more inclusive, flexible and open-ended approach to drafting and amending basic laws.

This is based not only on the idea that constitutions need to be based on more than an elite tie-up, but also the notion that constitutions’ durability should be based on their ongoing negotiability rather than their finality. In divided societies in particular, the idea is that security for minority communities is better achieved through guarantees that their voices will be heard in an ongoing process than through the strictures of a final and virtually unalterable outcome.

Much of this turns earlier notions of constitutionalism on its head. No more are basic laws to be drafted solely by ostensibly apolitical elites with the good of the entire polity in mind but rather (to the extent feasible) by the entire polity itself. Neither is the quality of a constitution to be judged by the infrequency of its amendments but rather by the effectiveness of such amendments in achieving and maintaining a political framework capable of containing societal conflict.

Heady and not uncontroversial stuff, which moreover bears clear implications for supply-based constitutional assistance. Simply put, because the old model largely was the US model (drafted by beneficent, all-seeing founding fathers, hallowed by a long life with relatively few amendments) along with the many constitutions it spawned, a shift away from this model in principle also implied a distancing from it – or any other proffered cookie-cutter – in practice. Indeed, as discussed in this NYT article, the US constitutional model has demonstrably lost its lustre since the end of the Cold War.

There are naturally a few problems here. One is that a good deal of supply-driven flogging of existing national models persists. After all, demand-driven constitutional assistance is really hard. To begin with, you have to know about a whole bunch of other constitutions beyond the one you studied in law school and actually engage with how they might apply to the specific problems a given polity is seeking to fix. A second point is that the new approach remains controversial. For instance, one highly informed expert I interviewed told me bluntly that in conflict settings, elite consensus was the only thing that mattered.

However, perhaps the most interesting caveat is that the reign of multiple supply-driven national models has arguably been replaced with the hegemony of a single supply-driven global approach. While the UN has taken on board the need to respect local ownership of sovereign constitution building processes and eschews the use of ‘one size fits all’ imported models, it has also asserted its own role as the guardian of a broad and somewhat ill-defined canon of international norms and standards deemed binding on all and sundry.

Thus, while the UN Guidance Note specifies that UN actors should only engage with constitution building processes when invited to do so, it also implies that such actors should in all cases ‘speak out’ against processes that have gone off the human rights rails. This would seem unobjectionable but for the fact that human rights standards will inevitably present a significant restriction on the extent to which the new democracy in constitutional process can be manifested. Where human rights come into conflict with practices and beliefs that may have broad local resonance, they must nevertheless prevail.

One might argue that this simply reinforces the inherent counter-majoritarian nature of constitutions. Even very traditional constitutions are designed to constrain the exercise of power – including power achieved via democratic processes – through a barrage of checks and balances. However, human rights go further in the sense that they irrevocably place certain societal issues beyond the realm of democratic decision-making. This is less problematic in cases in which political consensus has long since aligned with human rights compatible outcomes. However, for edgier social issues a genuine law and society dilemma arises. Should one seek to impose the right answer on the majority by reference to external legal obligations, or wait for the majority to come to the right answer itself at the cost of numerous violations of its legal obligations along the way?

For the West, the answer has clearly been the latter. In the US for instance, whatever the global human rights view on gay marriage may be, the issue will be decided politically, state by hard-won state. Meanwhile, the European Court of Human Rights applies the ‘European consensus’ rule, described in this article by Kanstantsin Dzehtsiarou as “a rebuttable presumption in favor of the solution adopted by the majority” of member-states. Critics of this approach on the Strasbourg Observers blog have noted both its potential for perpetuating unhelpful legal uncertainty and the risk that it excuses inaction in the face of frequently asserted and rarely substantiated cultural sensitivities.

It is of course true that both the standards themselves and majority attitudes are moving targets – and that they probably reinforce each other’s movement in a broadly progressive direction in some quasi-dialectical manner. However, this has been a largely Western phenomenon in a context in which lip service to human rights by autocratic regimes in developing countries may have served to undermine their credibility prior to democratic transitions. Wherever any given country may stand along the spectrum of human rights implementation, there are both historical reasons for why they are there and historical evidence indicating that they will improve their position with time.

Here we return to one of my chief concerns about the UN approach to constitution building, which is that it may assume that many non-western countries are in a position to simply make the leap from whatever majority attitudes they have now to the standards already espoused by Western countries. Let me stress that this is not a defense of cultural relativism, but rather a concern with identifying means of effectively supporting greater respect for human rights. Sanctioning destructive practices in the name of cultural relativism clearly will not. But neither will wishing them away in the name of human rights.

To the extent that the UN can be said to be engaging in supply-driven constitutional assistance, its wares in the form of global norms are certainly more relevant than those of bilateral actors peddling their own parochial constitutional preferences. But that does not mean the UN need not concern itself with the question of which rules among its canon are truly binding and which are mere best practice. And neither does it absolve the UN of the practical necessity of engaging more seriously with the complicated, sensitive and indispensible demand side of the equation.