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Drafting Process
Constitution writing entails several distinct steps, beginning with agreement on ground rules and formats and ending with ratification. The stages outlined here summarize current practice around the globe.
Step 1: In times of crisis or profound change, when the existing constitution may not provide sufficient guidance, the process opens with deliberations about the appropriate format for subsequent discussions. The breadth of participation at this stage and the issues considered vary from place to place. Often these conversations take place in the context of round tables, meetings between the leaders of the incumbent government and the most important opposition groups. The parties to these decisions sometimes agree explicitly to accept subsequent modifications in the arrangements they craft, subject to criteria determined by the negotiators. In other instances, departures from agreements are totally ad hoc, and in still others the parties all respect the procedural decisions taken at this stage.
Step 2: In one-third of constitution writing exercises completed during the period 1975-2003, the preparation of an interim constitution or a set of immutable principles/essential features was the second step in the process. Interim documents sometimes reinstate an earlier constitution, selectively amended, to serve as a basis for coordination during the transition period. Immutable principles/essential features are terms with which the final draft must comply in order to secure ratification. At this stage the negotiators almost always come from the ranks of a country’s major political organizations. This step is usually absent in settings where the existing constitution enjoys wide acceptance and sets out procedures for amendment or replacement.
Step 3: Development of the initial text, the basis for preparation of the final draft, comes next. The handling of this stage varies widely and may involve a prior period of public consultation. In a little over half of all of the cases in this study, the development of a first draft rested with an appointed commission whose members were selected by the executive, the members of a round table, a legislature, or some other authority, such as a transitional legislature in tandem with a national conference. In about a quarter of all cases studied here, a sub-committee of the main deliberative body developed the first text. In eight percent of cases, an elected chamber wrote the initial text itself, in working groups that reported to a plenary. There are also instances in which political parties prepare and submit their own texts. The groups that have responsibility for the first daft are usually small and their deliberations are rarely open to public view, although they may report regularly to the press and to constituents.
Step 4: In most countries an elected or indirectly elected assembly has primary responsibility for debating, amending, and adopting the draft. The figure below displays the breakdown by type of forum across the sample of 194 constitutions studied in this project. The duration of these discussions ranges from just over an hour to several months. Informal mediators sometimes play an important role at this stage in fostering compromise. Public hearings or a period for written comment may precede the final stages of deliberation.
A : Constituent Assembly
B: National Conference
C: Round Table
D. Legislature
E. Commission appointed by Legislature
F. Executive, Committee appointed by Executive
G. Peace Negotiations/Decolonization
H. Appointed Transitional Legislature
I. Party Central Committee
Step 5: Ratification is the final step in the constitution writing process. About half of the 194 countries in our initial study required a national referendum for ratification. This option was most common when the main deliberative body was appointed or indirectly elected. Countries varied in the length of time set aside for civic education and campaigning prior to the vote. Most of the remaining countries in this study located responsibility for ratification in the assembly that developed the final draft.