International Assistance to Constitution Making between Principle and Expediency

—Mara Malagodi, The Chinese University of Hong Kong, Faculty of Law

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

In the aftermath of the Cold War many countries underwent political transitions coupled with extensive constitutional changes. Constitution making has also increasingly become a tool for post-conflict peace building. While the phenomenon of international constitutional advisors assisting in constitution making processes is not a particularly recent one,[1] since the early 1990s it has become more frequent and progressively systematized into explicit policy frameworks. The exercise of constitution making, however, presents international organisations with a conundrum when offering expert assistance in the form of constitutional advice.

On the one hand, there is widespread agreement among scholars and international organizations alike that constitutions need to be made according to, and embody in their content, a variety of global norms pertaining to participation, transparency, democracy, fundamental rights, rule of law, international law compliance, and so on. Indeed, a minor cottage industry has arisen around giving countries constitution-making advice along these lines.[2]

On the other hand, a constitution is considered to be legitimate on the ground that it expresses the will of the collective “We the People.” Thus, in order to be legitimate, the constitution should be autochthonous and nationally owned, meaning that it should be local in origin and content: it should express the character, history, and identity of the distinctive community or collective ‘We’ that claims the right to govern itself independent of other communities. It is thus common for constitutions to articulate some kind of national identity, and to define the community responsible for adopting the constitution.[3]

The result is a tension between “constitutional autochthony” and “constitutional borrowing” that manifests itself throughout the standard advice given by scholars, consultants, and international organisations on how constitutions should be written. This tension is exemplified by the Guidance Note of the Secretary-General on United Nations Constitutional Assistance first issued in April 2009 and subsequently revised in September 2020.[4]

The UN Guidance Note merits attention because it illuminates the practical difficulties that modern constitution-making processes face in attempting both to comply with international legal standards and to secure the acceptance of domestic actors. It also shapes the policy frameworks of other UN agencies in matters of constitutional assistance. The 2009 version identifies six principles that should guide international engagement in constitution making:

There is considerable tension, if not contradiction, between points (2) and (3), which remain unchanged in the 2020 version. While the UN is supposed to encourage new constitutions to adhere to international human rights instruments, it should also ensure that the constitution-making process is nationally owned in order to avoid the impression that the constitution is “imposed” by foreign actors.

The difficulty is in striking the right balance between a nationally-owned process and a legal outcome that is sound in terms of both institutional design and compliance with international standards. The recent experiences of UN-supported constitution-making processes suggest that national ownership tends in practice to take priority, even at the cost of non-compliance with international human rights standards.

Nepal’s most recent constitution-making experience (2008-15) is a case in point. The current 2015 constitution re-introduced citizenship provisions that discriminate on the basis of gender granting Nepali women less rights than Nepali men to transmit citizenship to their children and foreign spouses. The new constitution’s citizenship chapter is in clear contravention of CEDAW and other international human rights instruments to which Nepal is a signatory. Unsurprisingly, the issue of citizenship took centre stage at Nepal’s periodic review before the United Nations’ Human Rights Council in 2015,[5] and the CEDAW Committee in 2018.[6] However, no amendments to the constitution with respect to citizenship have been introduced.

The question of citizenship in Nepal represents a clear instance of divergence from global constitutional practice and international human rights standards, which can only be explained in light of Nepali political elites’ concerns with nation building and the preservation of existing social hierarchies. This is not to say that Nepal is unique or alone in discriminating against women in this area of law, but it is significant that such a recent UN-supported constitution-making process that took nine years has produced in the end a constitution so clearly in breach of international legal standards such as CEDAW and ICCPR.

As the revised 2020 Guidance Note clearly states “the UN […] has a Charter mandate to promote respect for and observance of international norms and standards.” It thus seems imprudent for the UN agencies involved in constitutional assistance to prioritise political expediency over international law compliance, only to leave other parts of the UN system to attempt to remedy such breaches after the constitution has come into force, which is a much more arduous task.[7]

Suggested citation: Mara Malagodi, International Assistance to Constitution Making between Principle and Expediency, Int’l J. Const. L. Blog, Jan. 13, 2021, at: http://www.iconnectblog.com/2020/01/international-assistance-to-constitution-making-between-principle-and-expediency/

[1] See Mara Malagodi, ‘Ivor Jennings’ Constitutional Legacy beyond the Occidental-Oriental Divide’ (2015) 42:1 Journal of Law and Society 102; Symposium Issue: New Dominion Constitutionalism (2019) 17:4 International Journal of Constitutional Law 1166-1300; Coel Kirkby, ‘Commonwealth Constitution-Maker: The Life of Yash Ghai’ in S. Dubow and R. Drayton (eds.) Commonwealth History in the Twenty-First Century 61 (Palgrave).

[2] Tom Ginsburg, ‘Constitutional Advice and Transnational Legal Orders’ (2017) 2 UC Irvine Journal of International, Transnational, and Comparative Law 5. 

[3] Tom Ginsburg et al., ‘We the Peoples: The Global Origins of Constitutional Preambles’ (2014) 46 George Washington International Law Review 101; Chaihark Hahm and Sung Ho Kim, ‘To Make “We the People”: Constitutional Founding in Postwar Japan and South Korea’ (2010) 8 International Journal of Constitutional Law 800.

[4] See Guidance Note of the Secretary-General: United Nations Assistance to Constitution-making Processes (Apr. 2009), at https://www.un.org/ruleoflaw/blog/document/guidance-note-of-the-secretary-general-united-nations-assistance-to-constitution-making-processes; Guidance Note of the Secretary-General on United Nations Constitutional Assistance (Sept. 2020), at  https://peacemaker.un.org/sites/peacemaker.un.org/files/SG%20Guidance%20Note%20on%20Constitutional%20Assistance_2.pdf. See also United Nations Development Programme, ‘Guidance Note on Constitution-Making Support’ (5 February 2015), at www.undp.org/content/undp/en/home/librarypage/democratic-governance/parliamentary_development/GuidanceNote_ConstitutionMakingSupport.html (reiterating the same formula.)

[5] See United Nations General Assembly, ‘Report of the Working Group on the Universal Periodic Review: Nepal’, Human Rights Council thirty-first session, 23 December 2015, available at www.upr-info.org/sites/default/files/document/nepal/session_23_-_november_2015/a_hrc_31_9_e.pdf.

[6] See Committee on the Elimination of Discrimination against Women, ‘Concluding observations on the sixth periodic report of Nepal’, 14 November 2018, available at https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW%2fC%2fNPL%2fCO%2f6&Lang=en.

[7] A more detailed analysis is available in my forthcoming chapter ‘Constitutional history and constitutional migration: Nepal’ in the volume Constitutionalism in Context edited by David Law for Cambridge University Press.