Mapping Constitutional Success: A New Study on Process

—Lorianne Updike Toler, Libertas Constitutional Consulting

Amidst the chaos of Libya’s civil war, the Constitution Drafting Assembly (CDA) remains the lone institution recognized as legitimate by both sides of the conflict.  Headed by the stubbornly thoughtful—and stubbornly neutral—Waleed Al-Tahourni, the CDA’s eight committees are feverishly attempting to maintain what little legitimacy remains in the country by producing a coherent draft come October when one of their deadlines expires.

The legitimacy the group has fostered in an otherwise failed state may have been aided by their unprecedented access to comparative examples of other constitutional processes provided them a little over a year ago.

Conceived by Huda Abuzed of Rashad Consulting of Tripoli and commissioned by UNDP, Libertas Constitutional Consulting (which I head) reviewed eighteen different historical and contemporary constitutional processes and identified the presence, duration, and quality of 35 discrete aspects of a constitution-writing process.  A country study was produced for each process under review, and the entirety of the information was distilled into a large, user-friendly excel spreadsheet.  This comparison chart was then translated into Arabic and shared by the United Nations Support Mission in Libya as one of three critical documents on USB drives with CDA members on June 4, 2014.

The comparison chart can be found here.  Believing lessons learned from the study transcended Libya’s immediate circumstances and could be helpful to practitioners elsewhere, a write-up of best and worst practices in constitution-writing emanating from the study was published in volume 3, issue 4 of the Cambridge Journal of International and Comparative Law, “Mapping the Constitutional Process,” found here.

The latter write-up presents information (and, indeed, draws from sources) that will be familiar to comparativists in some respects, but presents conclusions not otherwise found in comparative constitutional literature.  For instance, elite inclusiveness was essential to constitutional success in the processes under study despite the presence of any other supposed harbinger of success, including meaningful and substantial public participation.  Honoring deadlines and time commitments (the hope of the CDA) was the second most likely indicator of success, rendering the codified writing process a kind of proto-constitution: how the drafters reverence this process acted as a kind of prelude to how citizens might reverence the permanent constitution.   Interestingly, transparency, widely touted as essential in modern processes, was avoided in failed processes, but not necessary in successful processes and constitutions.   The study also analyzed ideal timeframes (between six months and five years) and the use of local versus international experts (local being preferred).  Public participation, the aspect of modern process receiving the most attention from the NGO and scholarly community, was most successful when preceded by meaningful civic education and when quantitative methods, mostly post-draft, were employed to incorporate its outputs.

Because of resource and language limitations (only English publications were reviewed in its preparation), the study, though instructive in many ways, should be considered a precursor to a more robust study.   A more reliable study that could truly be called quantitative would be large enough (much expanded beyond the original 18 processes) to produce scientifically significant results and have a more scientific methodology peer reviewed by scholars and practitioners who have participated in or studied the various processes under study.  Specifically, the element that would benefit most from such a review is its definition of constitutional success, based upon the following factors: 1) immediacy of adoption after enactment, 2) whether it was publicly accepted over time, 3) the frequency and extent of formal amendments amounting to wholesale change, and 4) the constitution’s longevity.

As of this writing, key international organizations are considering engendering a more thorough, reliable study.  If any practitioners or comparativists are interested in participating, please do let the author know.  She can be reached at lautoler at libertascc dot com.

Suggested citation: Lorianne Updike Toler, Mapping Constitutional Success: A New Study on Process, Int’l J. Const. L. Blog, Aug. 7, 2015, at: http://www.iconnectblog.com/2015/08/mapping-constitutional-success-a-new-study-on-process/