Frequently Asked Questions

It is a project created to support legislators, consitutional laywers and other constitutional practitioners to find useful and relevant information, share knowledge and build a community of best practice.

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The Virtual Library is a one of the knowledge resources components being developed by International IDEA's Constitution Building Processes Programme. It consists of an extensive online collection of comparative documentation on key constitution building processes globally. The documents cover all phases of constitution making processes such as preparatory, drafting, adoption and implementation. The collected documents are in paper, electronic, digital, audio and video formats.

Since environmental issues have evolved into a global concern which can not be disregarded by states and their policies, some constitutions incorporate paragraphs concerning the protection of the environment. In addition, states are often obliged, under national and international law, which is often reflected in constitutions, to protect the environment and to consider the responsibilities of the state and its people to future generations. Constitutions may also provide guidelines for how natural resources should be divided amongst the population in order to secure equal distribution.

Corruption within the police force can be a challenge facing many new democracies and as such an issue that, in one way or the other, may be dealt with in the constitution. The constitution may for example state that the Head of the police must be an independent person who can not be discharged for displeasing government. Source: http://www.undp.org.np/constitutionbuilding/faq.php

Most constitutions say something about issues of national citizenship; who are to be regarded as citizens of the country, how one may become a citizen of the country, whether dual citizenship is allowed and if so, what the procedures for obtaining this status should look like, what rights and obligations citizenship will entail, etc. Usually a person who is born in the country or has one, or both, parents living in the country is considered a citizen.

Secularism is the assertion that religion and politics should be separated, meaning that the two spheres should not influence each other. A secular state does not have an official or preferred religion, rather religion is a personal matter, not an official. Source: http://www.undp.org.np/constitutionbuilding/faq.php

In order to strengthen accountability of elected officials, constitutions may take measures so that those in power do not unfairly appropriate public goods. Traditionally, laws’ dealing with anti-corruption measures have been left to ordinary legislation, but as it has become an acknowledged problem that those whom benefit from corruption are the same people in charge of legislating against corruption – integrating instruments in the constitution that reach beyond current politicians’ term in office are more effective in dealing with the issues.

If the constitution provides for certain key human rights, for example freedom from torture, violations against this and similar offences are at least prosecutable. The possibility of facing serious criminal charges might have a discouraging effect on potential offenders which in turn may prevent certain human rights abuses to take place. Likewise a constitution may prevent human rights abuses directed towards its population, or parts of its population, by its own military if constitutionally providing a supreme court that has powers over military courts.

By stating the equality of all citizens and also explicitly forbidding discrimination towards individuals with disabilities, constitutional drafters have the opportunity to formulate rules that aim to enhance parity in a nation. The constitution may also be even more specific in its aim to provide disabled individuals the same opportunities as other individuals – it may stipulate that the state shall pursue policies and legislation that for example support the disabled through easier access to public places, equal opportunity to employment, etc.

By providing for gender equity and non-discriminatory treatment on the basis of gender, the constitution may provide for a levelled playing field for all citizens in a country. When drafting a constitution provisions may be included that directly grant women a certain percentage of seats in official and representative bodies of the nation.

Human rights are rooted in a notion of universal dignity and are considered to be valid regardless of individuals’ ethnicity, race, nationality, religion or culture. The key rights are human dignity and freedom; these along with other human rights are encapsulated in the United Nations Universal Declaration of Human Rights from 1948. Although, human rights standards have been constructed within a western setting, with a western perspective, the values that underlie the principles are, by most, regarded as universal.

If a constitution provides certain economic and social rights to individuals and groups the state will be obligated to take specific action to facilitate the enjoyment of those rights. The state may not necessarily be required to provide free education, medical services, etc. but it is obligated to pursue policies that enable individuals, families and groups to earn a living.

By making an independent election commission a constitutional requirement fair elections may be facilitated. Also by specifying clearly what criteria must be filled by both voters and candidates the constitution can contribute in bringing about fair elections. Sources: http://www.undp.org.np/constitutionbuilding/faq.php IDEA Handbook – Creating the New Constitution: A Guide for Nepali Citizens, page 149

Traditionally constitutions have not included detailed prescriptions concerning political parties. This lack of detail has in turn contributed to some confusion concerning the governmental system of a state. Thus, many modern constitutions are more thorough when it comes to determining the ways political parties are allowed to operate, how they may finance their activities and how issues of accountability towards them may be addressed.

This is a broad topic, and indeed a very important one. There a quite a few ways by which a constitution actively may contribute in bringing about a more inclusive democracy.

The general method by which the citizenry is directly involved in politics is still by voting. However, there are many indirect ways for the population to influence government politics – by engaging in various civil society institutions, for example; non governmental organizations, environmental groups, non-profit organizations, activist groups, etc.

A constitutional court is one that has the final say in interpreting the constitution and also in deciding whether or not other national laws are in harmony with the constitution or are unconstitutional. A constitutional court is a specialised court that will not occupy itself with other types of cases that are not directly related to the constitution. Not all countries have separate constitutional courts.

Federalism is a system of government in which certain powers are exercised by levels of government below the national, and those powers are constitutionally guaranteed and do not depend on the national government. Some key features of federalism are: • Two or more levels of government • A written constitution which grants powers to both levels.

In most constitutional monarchies the monarch has only ceremonial duties and no political power. The monarchy, in this sense, serves as a symbol of continuity and a symbol of the state. Source: http://en.wikipedia.org/wiki/Monarchy

A republic is a state which is not led by a hereditary monarch. The head of state, in most modern republics termed president, is in other words elected by the people (either directly or indirectly through parliament).

A Constituent Assembly is a body set up to make a new, or amend the existing, constitution. Members of the Assembly are usually elected, though some may be chosen through other methods. Constituent assemblies have sometimes been very like a Parliament; in fact sometimes a nation's parliament has acted as its Constituent Assembly (like South Africa), or the Constituent Assembly has had the functions of Parliament also (like India). The Constituent Assembly exists only to make the constitution. Source: http://www.undp.org.np/constitutionbuilding/constitutionmaking/constitut...

The preamble is the introductory part of the constitution that normally sets out some, or all, of the following: the history of the constitution, the values and aspirations of the people, the nature of the state and the authority under which the constitution is made. The preamble is still one of the oldest and most common ways of incorporating values and may also hold great symbolic significance.

Source: IDEA Handbook – Creating the New Constitution: A Guide for Nepali Citizens, page 69.

A constitution is the fundamental law, the basic law, of a country. The constitution determines the fundamental political principles of the government, rules of procedure of that government, rights and obligations of the citizenry and also sets forth methods to ensure accountability of governmental branches. Source: http://www.undp.org.np/constitutionbuilding/faq.php

The constitution is often protected by a certain legal body in each country with various names, such as supreme, constitutional or high court. This court judges the compatibility of legislation with the provisions and principles of the constitution, which is termed "constitutionality". Especially important is the court's responsibility to protect constitutionally established rights and freedoms. In constitutions without the concept of supreme law, such as the United Kingdom constitution, the concept of "constitutionality" has little meaning, and constitutional courts do not exist.

The presence or lack of entrenchment is a fundamental feature of constitutions. Entrenchment refers to whether the constitution is legally protected from modification without a procedure of constitutional amendment. Entrenchment is an inherent feature in most written constitutions. The US constitution is an example of an entrenched constitution, and the UK constitution is an example of a constitution that is not entrenched.

Yes. To share a new document, first choose "Create Group page". Give the page a title, for example "Looking for feedback on draft of paper on XYZ", and use the body to give more information to your colleagues. Then click on "File attachments" to expand the attachment box. Browse for the document on your local computer, then click on "Attach". Finally, you must also press "Submit" to finish your contribution.

Yes. First click on the group you want to receive notifications for. In the right-hand menu under the heading of the group, click on the link "My membership". From there, you can select enabled from "Email notification" and press submit. Whenever a new message is posted, you will receive an email with a link directly to that message.

Generally speaking all provisions in a constitution should be binding. If however, there is a need for flexible provisions the constitution should also provide a time schedule for when the affected provisions shall be enforced and implemented and who is responsible for making sure implementations is realized. If the state has not implemented the provision/provisions accordingly to the timetable the constitutional court of the country can use its capacity to realize the provision.

Even though a constitution must be tailored to suit the environment of its implementation, taking into consideration a number of relevant country specific factors such as culture, history, ethnic composition, etc., constitutional drafters may be inspired by studying other constitutions that have been drafted in countries with similar country specific factors. In that sense the field of comparative constitutionalism serves an important function as it helps experts and others involved in constitutional drafting to draw knowledge from past lessons learned.

The greatest benefit of holding a public referendum is clearly that such a procedure directly supports popular participation by the citizenry and as a result brings legitimacy to the outcome; be the document adopted or not. This is of course an advantage of holding a public referendum that can not be stressed too many times. Nevertheless, there are some difficulties and downsides surrounding the matter of carrying out a public referendum to decide whether or not to adopt the new constitution that must be considered.

Extending civic education to the population of a country that is about to embark on a route to constitutional democracy is essential. Civic education is one of the most relevant factors when introducing constitutionalism to a country where no previous experience of constitutionalism has existed.

Whether or not a country should include a bill of rights in its constitution must be decided upon by the people, or representatives of the people, of that country. However, most nations today do in fact have a bill of rights incorporated in their constitutions.

Applying aspirational language in a constitution does not per definition mean that what is actually being stated contradicts existing cultural norms in a society. Using aspirational language in, for example, the preamble can have a unifying affect on the nation especially after violent conflict during which ethnic or other social groups have been at war with each other. As the preamble holds symbolic value, incorporating visionary, forward-looking language when drafting it could possibly bring former adversaries closer together.

A constitution can make distinctions among its provisions and acknowledge some of them superiority over others in the sense that those will remain unalterable. Such provisions might include the basic structure of the country (status concerning federalism, unitary state, secularism, republicanism and other basic organization formats of this nature) and be safe-guarded against amendments by the Supreme Court of the country. Another way to make distinctions between provisions is to apply different processes when attempting to amend them.

Whether or not, and how, a constitution shall be amended depends on the context of its implementation as well as the circumstances that surrounded the drafting of the constitution in the first place. If the constitution forms part of a peace agreement it might include paragraphs and provisions that primarily serve to address issues that are directly associated with the past conflict and as such should be made easily amendable as time passes and past grievances are reconciled.

It might be an option to employ research projects such as the Afro Barometer and Asian Barometer to survey public opinion regarding various provisions in the basic law or even the constitution in its entirety. Another method can be holding a public referendum. This procedure might be a valuable tool to gauge public support for provisions in the new constitution. On the whole, by giving their vote the public is allowed to demonstrate their preferences among a list of options which in turn provides drafters with guidance as to in which direction the people wish to proceed.

Sometimes it is not a matter of actual choice; rather the circumstances decide the level of participation both in terms of national and international involvement. If an inclusive and participatory constitution- making process is sought after it is advisable to create a proper balance between the participation and inputs provided by the citizenry and those by national experts, as for example constitutional lawyers. Experts may be considered as advisors and not authorized to dominate the content of the constitution.

Lessons learned suggest that it is better to keep peace agreements and constitutional deliberations separate. There are examples where a preceding peace agreement to a large extent has dictated the conditions and provisions of the subsequent post-conflict constitution with very discouraging affects as a result, Bosnia-Herzegovina being a very illustrative example of such an instance where the constitution actually formed a part of the peace settlement. The reasons for avoiding the conditions set forth in a peace agreement to influence the content of the constitution are many.

In recent times it has been acknowledged that public participation in the drafting stage of the constitution should be encouraged and sought after. The actual extent of public participation and the procedures that facilitate this should however be separately developed for each individual political context. Logistical matters, time frame for the drafting period and financial issues of a specific country will have consequences for the possibility, and extent, of public participation.

By ensuring transparent and impartial legal procedures in the constitution, previous oppressors can be protected against former victims taking justice into their own hands. If victims of serious atrocities are not heard and their grievances not addressed by the successor government there is a possibility that they, when deciding their own method of how to obtain justice, create political instability in the country. Thus, to avoid such a situation it is important that the functioning’s of the judiciary is amply described in the constitution.

In the aftermath of violent conflict where severe human rights abuses might have taken place it is important for successor governments to pursue transitional justice in order for victims to be heard, offenders to take responsibility for their actions and the overarching aim of reconciliation to, in time, be achieved. However, enshrining transitional justice measurements in the constitution of a country might not be advisable as these specific instruments are just that; transitional.

Generally speaking a constitution shall aim to protect all citizens of a country and to provide the citizenry equal freedoms and rights as well as obligations. By stipulating the guidelines and rules of procedure for government activities, how the relationship and interaction between the citizenry and branches of government shall be conducted and how the public can hold elected officials accountable for their decisions and actions, the populations is protected against unjust treatment from those in power.

To stipulate overriding goals for a society is not a phenomenon that originates from western cultures or a practice reserved for those cultures. To establish rules and procedures for societies in order to provide the basic structure for that society, whether in a written or unwritten form, is to be expected from nations regardless of geographical location and national culture. Nevertheless, when discussing modern constitutions such rules and procedures are presupposed to be in writing in order for the term “constitution” to be valid, i.e.