The Un Constitutional

THE UN

CONSTITUTIONAL

A Newsletter on United Nations Issue 9 Constitutional Support Winter 2019-20

FOREWORD “The UN Constitutional” team is pleased to publish the ninth issue of its newsletter featuring articles by constitutional experts and reports from the The UN Constitutional Team:

field. In this issue, we interview Roberto Gargarella about the evolution of  Department of Political & constitutionalism in Latin America. The issue also features an article on the Peacebuilding Affairs (DPPA) rule of law dilemma presented by the judiciary in constitutional reforms; as  Department of Peace Operations (DPO) well as an analysis of the Sudan and Philippines constitutional processes; in  Office of the High Commissioner for addition to updates on UN support to constitutional processes in three Human Rights (OHCHR) countries.  UN Children's Fund (UNICEF)  UN Development Programme (UNDP) “The UN Constitutional” is a manifestation of the collective desire of 6 UN  UN Entity for Gender Equality & the entities to raise awareness around the UN of constitutional issues and Empowerment of Women (UN Women) themes, share information, and strengthen the provision of constitutional assistance. IN THIS ISSUE

Interview: Roberto Gargarella Featured: Constitutional reform Analysis: Sudan’s 2019 Professor of Constitutional Constitutional Charter & the judiciary Highlights on Sudan’s Step Towards Theory & Political Philosophy A rule of law dilemma Constitutional Democracy and Rule of (pp.2) (pp.5) Law (pp. 7)

Analysis: Constitutional Reform UPDATES FROM THE FIELD & in the Philippines: HQ (p.11) A Power Struggle, Peacebuilding, ▪ Colombia pp. 11 Charter Change, or Decentralization? ▪ Gambia pp. 12 Or All of the Above? (pp.9) ▪ Tuvalu pp. 13

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INTERVIEW: ROBERTO GARGARELLA

Focus on constitutionalism in Latin America

Interview with Roberto Gargarella, Professor of Constitutional Theory and Political Philosophy at the Universidad de Buenos Aires and at the Universidad Torcuato Di Tella. He has authored and edited more than 25 books in English and Spanish on constitutional theory, political philosophy, and democratic law, The UN Constitutional thanks Professor Gargarella for this interview on trends in Latin American constitution making.

Spanish heritage, which was powers that was typical in the 19th To begin, can you tell us a demanded by most conservatives. As Q. century, and also extended the kind a result of their compact, most Latin bit about the evolution of of declaration of rights that became American Constitutions adopted a constitutionalism in Latin America typical in the 20th century. and some of what makes Latin new model, which combined both American constitutionalism demands; this is to say a system of checks and balances that was unique? What are some challenges to “unbalanced” towards the Executive. Q. constitutionalism in Latin America Finally, since the beginning of the Latin American constitutionalism has today? gone through many different periods. 20th Century, and after the 1910 Mexican Revolution, most countries in I would mention the following as the In my view, what is necessary is to the region began to re-shape the most important: first, an adjust the two main parts of the Constitutions’ “declaration of rights.” “experimental” period (1810-1850), Constitution –declaration of rights, This period inaugurated what was at the time following Latin American organization of powers- that began to called Latin America’s “social independence. Next, we find the work in different directions: as said, constitutionalism”. Following the “founding moment” (1850-1890), since the beginning of the 20th model of the 1917 Mexican when most countries defined the century we have been reforming once Constitution, most countries began to basic constitutional structure that and again our Constitutions in a very adopt long lists of social, economic they still have. In particular, it was peculiar way. As a result, most and cultural rights. Both features are during this period when most countries have social, progressive still present in most Latin American countries defined the content of their and democratic Constitutions, in what Constitutions: an organization of “organization of powers” or system of regards their declarations of rights, powers that it is still very much in government. This was done, in most but at the same time very traditional, line with what it was achieved by the cases, after an unexpected elitist and authoritarian organization mid-19th Century, and declarations agreement between “liberals” and of powers, which still follows the 19th of rights that still very much follow “conservatives” –the two main Century non-democratic model. In the model of a long list of social and political forces, which had a long sum, we have (what I call) economic rights that was defined at history of bloody confrontations. This Constitutions with “two souls.” To put the beginning of the 20th century. By agreement resulted in a system of it differently, in spite of all these the end of the 20th century, we had a “checks and balances” that followed reforms, we still preserved the old new wave of constitutional changes, the US model, which was the model “engine room” of the Constitution which many people defined as the that most liberals preferred, and a intact and almost untouched. The “New Latin American consti- system of concentrated authority challenge is to reform it for once, so tutionalism.” In my view, this “new (where power mainly rests in the as to adjust it and put it in line with model” is in a way “too old”: It only executive branch), which followed the the progressive and democratic reinforced the kind of organization of

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INTERVIEW: ROBERTO GARGARELLA reforms introduced in the declaration rights (“social constitutionalism” in of rights. general). This was a novelty that was Q.It is said that some of the created in Mexico 1917 (the first most inclusive and participatory This challenge of executive domi- country in the world to include a long constitution making processes nance, or “hyper- presidentialism,” list of social economic and cultural have taken place in Latin has provoked systematic tendencies rights). The list of rights has America. Can you talk a little bit of “democratic erosion” from within. expanded further in recent years. about the experience of It has favored the “gradual They now include multi-cultural rights constitution making in Latin colonization” of the entire structure of and human rights (which have been America? checks and balances. As a result, in incorporated in many constitutions). many countries we still have very The reference that Constitutions such Yes, it is said that many of the weak institutions of control. So, in as those of Ecuador and Bolivia made processes of constitution-making in general terms, I would say that we to the Sumak Kausay or “rights of Latin America were open and have had problems in preventing nature” needs also to be considered participatory, including those of undemocratic constitutional changes and discussed ii) I will also mention Venezuela, Ecuador and Bolivia. I (although this is a topic that requires the advances introduced in many want to make two claims in this further discussion). There are some Latin American constitutions in terms regard, one more descriptive, one exceptions, however. The most of access to justice. Countries such as more normative. The descriptive one salient is the one offered by the Costa Rica and Colombia have been is this: I wish those processes had Colombian Constitutional Court, exemplary in this respect, with been really open and participatory. I which was created in 1991, which on extremely low requirements for absolutely agree that constitutions some occasions at least has limited accessing the Courts, through need to be written in such a way the executive’s ability to reform the amparos, acciones populares and the (through an inclusive and deliberative Constitution in order to extend a like, and very low “standing” process). However, they could have presidential mandate. requirements. iii) Finally, I will also been substantially more open. The mention the 169 ILO Convention, and Bolivian process, which initially was the requirements of “consulta previa” the most interesting of all of them, Q.Latin American constitutions [prior consultation] for cases of ended up convening in a military have a lot to offer to other economic initiatives that may put in barrack, given the level of conflicts countries undergoing danger the environment or the rights and disputes that characterized the constitutional reform. What of indigenous communities. process. Worse still, in most cases, would you say are some of the even today nobody knows who wrote salient “successes” of Latin American constitutions?

Well, it is true that countries like Mexico and Argentina have been pioneers in the creation of judicial tools for the preservation of rights: the “amparo”, in particular, is always mentioned in this respect (in Argentina we have interesting developments regarding the use of the habeas corpus). [Editors: The writ of amparo, like the habeas corpus, may be invoked by any person who believes that any of his/her rights, is being violated. It enables citizens to invoke the action for the violation of any right protected either explicitly or implicitly by the Constitution.] In any case, I think that the other good “lessons” offered by the region are the following: i) the introduction of social

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INTERVIEW: ROBERTO GARGARELLA the final version of some of the Court, by interpreting the make clear that democratic decisions articles -which contradicted some of Constitution, said just the opposite. gain legitimacy only according to the what was agreed to during the level of discussion and inclusion that debates. In Ecuador, the process was characterize them. In other words: a very inclusive, at the beginning, but Q.Do you have anything to say decision that is preceded by a debate immediately we had the then on the “right to peace” and how where only a few participated is an President of the Convention, Alberto it’s impacted conflict and conflict elitist decision, and a decision where Acosta, and some of his followers, resolution in the region? Article everybody participates (like a resign because they found severe 22 of the Colombian constitution referendum) but is not preceded by a disagreements with those who gained provides that “peace is a right robust and ample debate also lacks control of the debates. Acosta led, at and a duty of which compliance is democratic legitimacy. that time, what was in my view the mandatory.” A lot of our readers most interesting group taking part of will be interested in knowing how the debates (an ecological and pro- constitutions – in particular this aborigin group, which was situated in right to peace – have impacted the left of the ideological spectrum. conflict resolution. They were for instance responsible of writing one of the most challenging The Colombian Peace Process has and interesting aspects of this extraordinary political and legal Constitution, which has to do with the importance. I would say two things, "derechos de la naturaleza," namely one about the law, and the other sumak kausay). about democratic politics. The first is that the peace process included My normative point is the following: negotiating peace, partial amnesties, We need Constitutions to be written pardons, restitution of land, etc. Now, through popular, inclusive, pluralist, what has been done there transparent, deliberative, constituent (particularly in regard to the decision assemblies. But, in most occasions, not to punish certain perpetrators of the most important aspects of the crimes in certain occasions) has Constitution became developed generated numerous controversies. through legal and interpretative And the concerns that were raised debates, which begin when the about the use of amnesty in Colombia constitution-making process has is particularly understandable in a finished. And what we have been region where historically dictators seen in Latin America is that legal have absolved themselves of any processes of the kind end up being legal liability before leaving power. controlled by the Executive authority. But it is important to distinguish In other words, those who become between amnesty granted to one’s charged with interpreting the self (or one’s regime) without any Constitution are allies of the President procedural or democratic legitimacy (say, members of the Constitutional versus amnesties that are decided by Court or the supreme court, etc.). In and through democratic institutions this way, we end up having decisions and processes, including through like the one we got in Ecuador, where popular consultations – as was the the most revolutionary clause case in Colombia. The other issue included in the constitution, namely that I wanted to mention is even the one referred to the sumak more centrally related to democracy kawsay, was interpreted by Correa's and has to do with the referendum Court as if it were compatible with that was used by Santos' government the most brutal forms of natural- at the end of the Peace Process. This resource-exploitation. I mean: the was a new instance of a polemic use one and only purpose of the clause of a seemingly democratic tool, was to make those initiatives namely a popular consultation. For unconstitutional. Shortly after, the me, as a democrat, it is important to

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FEATURED: CONSTITUTIONAL REFORM & THE JUDICIARY

Constitutional reform and the judiciary: a rule of law dilemma

By Jan van Zyl Smit, Bingham Centre for the Rule of Law

One of the legacies of conflict and having to compete with new Kenya required a judicial vetting authoritarian rule is that citizens applicants. In some East German process. Vetting generally involves may have little confidence in the regions, this resulted in most of the the scrutiny of individual office ability of their judiciary to uphold judges being replaced by West holders for qualities of integrity and the rule of law. It is widely accepted German lawyers. A similar exercise of competence. In Kenya, where the that constitutional reform offers an court restructuring and fresh legal profession and some civil opportunity to address this problem appointment of judges was carried society groups claimed judicial by strengthening judicial tenure and out in Bosnia and Herzegovina in the corruption was widespread and public providing other safeguards for judicial early 2000s, but there a relative trust in the judiciary was low, a independence. However, the issue of shortage of applicants led to the specialist board with one-third incumbent judges can nonetheless majority of judges being reappointed. international members vetted every present a rule of law dilemma. As An earlier example of judges being judge. It investigated complaints truth commission reports have reappointed after screening occurred against judges and assessed their shown, many societies want to in Argentina’s federal courts following judicial skills and commitment to engage with the role of the judiciary the end of military rule in 1983, but constitutional values. Those judges during the past and ensure that those this process was justified as a remedy who were found unsuitable for office judges who remain in office have the for an illegal period of governance were removed. qualities required for building a future and preceded full-scale constitutional that is based on the rule of law. In reform. As a precedent for vetting, the this lies the dilemma: without a drafters of the Kenyan constitution qualified, effective and legitimate Intermediate options exist between referred to lustration programmes judiciary, the rule of law is unlikely to retention and wholesale renewal. For undertaken by post-communist states thrive but, at the same time, example, the 2010 Constitution of in Central and Eastern Europe, where removing or officially reassessing judges by any process other than one that is intended to apply under all circumstances, and respects the usual safeguards for judicial independence, may itself undermine the rule of law.

Responses to this dilemma have varied widely. In some countries new constitutions retained the judges who were in office, as Spain and Portugal did in the 1970s, and South Africa after the end of apartheid. Other countries combined constitutional change with a wholesale renewal of the judiciary. After East Germany joined the Federal Republic of Germany in 1990, its courts were reorganised and restaffed, with judges from the communist era

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FEATURED: CONSTITUTIONAL REFORM & THE JUDICIARY judges were screened for their links permanent mechanisms by which upon. If the decision is made that a to the secret police, the communist judges are appointed, assessed or judge should be removed from office, party or complicity in human rights disciplined. Failure to do so may then that decision should be subject abuses. Such screening could take result in uncertainty about the scope to appeal or review. The Kenyan place either as part of an open and justification for such a special Constitution denied ordinary courts competition for appointment to new process, as well as the safeguards jurisdiction to rule on the judicial courts (as in the East German and that are required. For example, in vetting process, presumably to avoid Bosnian cases that have already been Serbia, the 2006 Constitution conflicts of interest and because it did mentioned), or through the individual changed the process for the selection not have confidence in those courts. assessment of judges alongside other of judges. Two years later the Instead, the Kenyan legislative state employees, of which the Czech Serbian parliament passed legislation framework gave the vetting body sole Republic provided a leading example. that required all incumbent judges to responsibility for reviewing its own compete afresh for judicial posts on decisions. A better solution may be to Notwithstanding the global spread of the grounds that their previous establish a dedicated body to deal ideas for processes such as judicial appointment was invalid. The Serbian with appeals against vetting reappointment, vetting or lustration, Constitutional Court initially accepted decisions. In the judicial vetting caution is still needed when this premise. A fresh appointment process that is currently taking place constitution-making bodies consider competition was undertaken, but in Albania, this has been done by the position of incumbent judges. afterwards found to be entrusting vetting appeals to a pre- Personnel reforms – that is, screening unconstitutional because the process vetted chamber of the Constitutional and possibly replacing judges – are was not sufficiently individualised and Court. not the only way in which a failed to produce specific reasons for constitution can strengthen the ability removing each judge who was not In summary, great care is needed to of courts to uphold the rule of law reappointed. ensure that any special process for and many argue that they are screening incumbent judges from a seldom, if ever, the best. Alternative Secondly, the more a special process previous era enhances the rule of law or additional measures include interferes with traditional safeguards rather than imperilling it. structural reforms such as the for judicial independence, the establishment of a new constitutional stronger the justification that is The present author is leading a or apex court, the creation or reform required. The UN Special Rapporteur research project at the Bingham of judicial selection and discipline on the Independence of Judges and Centre for the Rule of Law, in which bodies, and improving the financing Lawyers argues that competitive experts from 12 countries in Africa, and operational autonomy of the reappointment should be resorted to Asia, Europe and Latin America are judicial branch of government. These only ‘where the situation is so serious examining how incumbent judges measures do not target incumbent that [it] is the only course of action were dealt with during transitions in judges but can reduce their left’.1 their jurisdictions. The research is involvement in the most politically funded by the UK Arts and sensitive cases, improve their Thirdly, the procedures by which Humanities Research Council through accountability and dilute their incumbent judges are assessed must Grant No AH/R005494/1 and a full influence on the composition and be fair. This requires at a minimum set of findings will be published in functioning of the courts over time. that the process should be conducted early 2020. by an independent and impartial If a country in transition to body, that the assessment criteria Dr Jan van Zyl Smit democracy decides to take some should be transparent, and that ([email protected]) action specifically with regard to decisions should be made on the is a Senior Research Fellow at the incumbent judges, then it would do basis of evidence which judges have Bingham Centre for the Rule of Law, part of the British Institute of well to reflect on comparative been given an opportunity to International and Comparative Law. experiences that can provide lessons challenge, for example through cross- about risks to the rule of law, and examination if witnesses are relied how they may be avoided. First, the constitution should provide clear legal 1 authority for any special process in Report of the Special Rapporteur on the independence of judges and lawyers, Leandro relation to incumbent judges, and Despouy, 23 January 2006 (UN Doc distinguish that process from the E/CN.4/2006/52), para 54.

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ANALYSIS: SUDAN’S 2019 CONSTITUTIONAL CHARTER

as well as investigations of violations Sudan’s Constitutional Charter 2019: committed on 03 June 2019 during the revolutionary protests.

Highlights on Sudan’s Step Towards Sovereign Council, Transitional Cabinet and the Prime Minister and Constitutional Democracy and Rule of Legislative Council

Law The Charter establishes three key governance structures. Chapter four By Rule of Law Unit, UNAMID creates a joint military and civilian Sovereign Council, consisting of members of the TMC and FFC, with overall authority over the Following the overthrow of President Omar Al Bashir of Sudan on 11 administration of the country. A April 2019, the Forces of Freedom and Change (FFC) that championed military leader will head the Council the revolutionary protests engaged in negotiations with the for the first 21 months, followed by a Transitional Military Council (TMC) for a peaceful transition from civilian leader for the next 18 military rule to civilian government in Sudan. The negotiations led to months. Chapter five establishes a the signing of a Constitutional Charter between the TMC and the FFC Transitional Cabinet of ministers on 17 August 2019 on the establishment of a new civilian-led headed by a civilian Prime Minister transitional government and transitional institutions. This article with authority over the day-to-day highlights key provisions of the Constitutional Charter (Charter) business of government. Chapter especially as they relate to the rule of law, constitutional democracy seven establishes a 300-member and governance. Transitional Legislative Council

conferred with powers to enact laws, Is the Constitutional Charter of Unlike previous Constitutions, it does oversee the performance of the Sudan a Constitution Stricto not declare Sharia Law as the basis of Cabinet, approve budgets and ratify Senso? all laws in Sudan. treaties to which Sudan is a A Constitution can be described as a Major Features of the Transitional signatory. While the first two organs body of fundamental and supreme Government Established by the have been established and are rules, institutions, and principles Charter (Relating to Rule of Law) functional, the establishment of the according to which a State and its legislative assembly has been delayed people have accepted to be Established Transitional Period of 39 pending peace negotiations. governed. Ordinarily, the Months constitution making process reflects Supreme Judicial Council and the the aspirations and visions of a Chapter 2 of the Charter establishes a Supreme Council of the Public people through participatory, transitional period of 39 months with Prosecution representative and deliberative timelines for the attainment of processes, including sometimes a specific milestones, including the The Charter guarantees the referendum. The Charter of Sudan completion of the peace process in establishment of an independent did not strictly follow this process as Sudan. During the transitional judiciary and public prosecutor. It it was an agreement negotiated period, key governance, rule of law, further confers judicial and financial between the TMC and FFC. However, human rights and legal reforms will independence on the judiciary while it the Charter fits a prototypical be undertaken. These include inter stipulates that the Public Prosecution transitional constitution, which are alia the repealing of outdated or office shall operate as an independent often elite negotiated instruments. In discriminatory laws, the holding of a agency in accordance with its a nutshell, the Charter abrogates the constitutional conference, the drafting enabling laws. Chapter eight 2005 Constitution of Sudan and of a permanent constitution, the establishes the Supreme Judicial declares Sudan a democratic and establishment of transitional justice Council charged with the powers to sovereign state with commitments to mechanisms, including accountability select the Chief Justice and members implement the rule of law through for crimes committed by members of of the Judiciary for appointment by accountability for crimes committed the former regime against the the Sovereign Council. Chapter nine during the previous regime and to Sudanese people including Darfuris, establishes the Supreme Council of restore fundamental human rights. the Public Prosecution as an

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ANALYSIS: SUDAN’S 2019 CONSTITUTIONAL CHARTER independent body which shall nominate the Prosecutor-General and assistants for appointment by the Sovereign Council. If fully implemented, these provisions will create a much more independent and effective judiciary than under the 2005 Constitution and have a positive impact on the rule of law and human rights in Sudan, as well as instill in the politics and governance of Sudan a strong principle of separation of powers. It further would allow the Judiciary to assert its independent authority over any oppressive actions of the executive or the enactment of oppressive laws by the legislature.

Independent Commissions

To carry out key functions during the transitional period, Chapter 12 of the the robust and progressive rights of with expertise and provision of Charter establishes a number of women and children, as well as socio- comparative experiences and lessons independent commissions. These economic rights – all of which are learned in other jurisdictions, include inter alia the Peace improvements on the 2005 including advice and support to Commission; the Constitutional Constitution. The fact that these drafting committees, including on Drafting and the Constitutional rights are made obligatory in the specialized issues such accountability Conference Commission; the Charter is a welcome development, and transitional justice, engagement Elections Commission; the Legal provided they are replicated in the of political actors and participation of Reform Commission; the Human permanent constitution to be drafted local and marginalized communities. Rights Commission; the Land and implemented after the interim To advance inclusive and Commission; the Transitional Justice period. participatory constitutional reform Commission; and the Women and processes, the United Nations should Gender Equality Commission. It is Conclusion utilize existing joint mechanisms and envisaged that the Transitional platforms to help facilitate or enable The provisions of the Charter Justice Commission will implement consultative processes involving represent the negotiated aspirations transitional justice and accountability marginalized regions and of various stakeholders in their of crimes committed by the previous communities, especially those most pursuit to transition to a civilian led regimes, including in Darfur. As their affected by conflict, such as those in and elected government. While there respective powers and functions shall Darfur, with a strong emphasis on is a risk that some forces in Sudan be stipulated in separate legislation, women, youth and internally may continue to reject the document and the legislative assembly is yet to displaced persons. as not representative of all interests be appointed, the timeline for the and aspirations of the Sudanese establishment of these commissions people, it nevertheless provides a remains uncertain. framework and foundation for which a Human Rights Regimes permanent and inclusive constitution could be drafted and adopted by the Chapter 14 of the Charter establishes people of Sudan. a comprehensive human rights regime that makes all rights and In this regard, the United Nations and freedoms contained in international its partners, including the Office of human rights agreements, ratified by Rule of Law and Security Institutions, Sudan, an integral part of the should stand ready to support the constitution. It is important to note government and people of Sudan

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ANALYSIS: CONSTITUTIONAL REFORM IN THE PHILIPPINES

Constitutional Reform in the Philippines: A Power Struggle, Peacebuilding, Charter Change, or Decentralization? Or All of the Above?

By Chetan Kumar, Outcome Lead for Peace, UNDP Philippines

A Political Process national revenue and then and culture of Bangsamoro as determines how these monies are compared to the rest of the country. In A 2016, on assuming office, used. In addition, the peace agreement

PresidentBy Duterte promised an opens the way for business to enter accelerated transition by the In prioritizing the formation of the mineral-and-resource-rich southern Philippines to a federal system. A BARMM, the president fulfilled a Mindanao in a more comprehensive constitutional review committee was promise made to the Moro leadership manner. It is entirely possible that formedQuestion and evens by submittedThe UN Constitutional a new that full autonomy for Bangsamoro the prevailing elite would be more draft constitution to the President and would be implemented before the comfortable with a wider federalism the Congress; consultative exercises transition to a federal system. Moro project once they have had a were held among different sectors to leaders were concerned that should “practice run” with autonomy in converge viewpoints; and key they only receive autonomy as part of Bangsamoro. members of the political elite a federal dispensation, the unique expressed support. By mid-2018, the nature of their struggle and their Despite President Duterte’s personal President’s supporters held sway over cultural heritage as well as the popularity, the wider federalism both houses of the national special parameters of Bangsamoro project has also not caught fire in the legislature, which also adopted autonomy—as reflected in the 2014 popular imagination, as several polls procedural resolutions to launch Comprehensive Agreement on the have either shown very lukewarm deliberations over a new charter. Bangsamoro (CAB) between the support or a lack of understanding of Thereafter the process halted. Government and the Moro Islamic the issues involved. Again, a working Liberation Front (MILF)—would be BARMM could help generate stronger Devolution as Peacebuilding blurred. Officially, the government support. and the MILF took the position that Concurrently, the President and the BARMM would offer an early and To date, the strongest champions of government prioritized the passage of useful experiment on genuine local federalism have been regional leaders the Bangsamoro Organic Law in autonomy that could then provide like the President, the first ever from Congress and the subsequent both a milestone and a baseline for Mindanao, regionally-based political plebiscite leading to the formation of the country’s eventual transition to a parties, and the leaders of the island the Bangsamoro Transition Authority federal system. provinces of southern Mindanao and in February 2019 as the interim the Visayas. Under the current government of the Bangsamoro A Power Struggle Philippines post-Marcos constitution, Autonomous Region in Muslim the President in Manila—via the Mindanao (BARMM). For the national leadership, however, national revenue—directly allocates there may be a deeper consideration. the budget of local governments at Effectively, BARMM enjoys all the Private interests that have dominated the city, municipality, and village powers that are foreseen for state the heights of the Philippines’ political levels against submissions from these governments in a federal system, the economy from Manila need a lot more entities. While this directly empowers most critical one being control over persuasion that letting go of at least local governments, it also leaves its own finances. As opposed to some of their influence would benefit leaders at the regional and provincial receiving its share of the national them in the longer term. In the short levels without key decision-making revenues based on a line-by-line term, however, they are more powers (as opposed to the BARMM, budget, it receives an annual “block comfortable with the implementation where the regional head of grant” equivalent to 5% of the of the CAB given the unique history government allocates resources).

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ANALYSIS: CONSTITUTIONAL REFORM IN THE PHILIPPINES

Champions of the federal model argue that this level of control from Manila is detrimental to the country’s longer-term development as blockages or deadlocks in the capital can stall the entire country, and as local knowledge and priorities are curbed. A federal system could therefore advance both peace and development in the country.

Advocates of the current system argue that it has allowed progressive governments at the national level to set priorities that undercut the feudal local patronage networks that stymie development, and to push for issues such as gender equality and more effective service delivery.

Revolution and Evolution

But at the root of much of the debate lies an even more fundamental issue as to how wealth and power are eventually going to be organized in the country. The debate goes back to the founding of the Philippines in 1898, when the country’s leaders clashed not just with Spanish and American colonizers but also among themselves on these issues. Central elites, who have argued that devolution will create an unstoppable centrifugal force in an archipelagic country, have been constantly challenged—including through violent insurgencies and recurring local Democratic governance paintings. Credit: UNDP Philippines. violence—by regional leaders. Arguably, much of the proceeds from Given their historical antecedents, it creation of the BARMM has already the country’s natural wealth have may be possible that these debates significantly advanced the agenda of accrued to Metro Manila and A could not be resolved in the near decentralization and established a neighboring provinces, which now Byterm. A process of national dialogue historical legacy for the incumbent enjoy first world standards of living, around fundamental issues could administration. while resource-rich provinces in generate wider public momentum and southern Mindanao have some of the buy-in. The Constitutional Review world’s lowest human development Questions by The UN Constitutional Committee could have conducted a indices. While the post-Marcos 1987 more systematic series of public constitution changed this to some consultations, and the Philippines’ degree and set the Philippines on a Congress may yet do so, Of course, it high-growth trajectory, economic is equally likely that the President inequality across regions remains could carry the day based on his rampant. popularity and Congressional majorities. In either scenario, the

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UPDATES FROM THE FIELD & HQ

Comprehensive System of Truth, What is the United Nations doing in the area of Justice, Reparation and Non- constitutional assistance? This section offers an Repetition (SIVJRNR). Thus demanding a victim-centered overview of the latest developments, challenges approach from the onset. In another and lessons in this key area of support sourced ruling (C-674 of 2017) it stressed the need to ensure victims participation directly from our field missions, country offices in criminal proceedings that affect them to ensure their rights to truth, and other UN entities. justice, reparation and non- repetition. When analyzing the mandate of the Truth Commission COLOMBIA Unit for the Search of Missing Persons (CEV) the Court emphasized the (UPBD) may also be impacted. Out of importance of applying an inter- “Promoting victim’s access to the three mechanisms, JEP has a sectional approach. Through the truth, justice and redress for specific oversight role – to verify that Decree Law 588 (article 11.3) it gross human rights violations and alleged perpetrators contribute declared that "…the differentiated their participation in the comprehensively to truth-telling in ways in which the conflict affected Comprehensive Transitional line with the best interest of victims. women, children, adolescents, young Justice System (SIVJRNR)” Any special treatment, benefits, or people and older adults, people with waivers, provided to alleged disabilities, indigenous peoples, On 30 November 2016 the signing of perpetrators in this jurisdiction hinges peasant communities, Afro- a historic Peace Agreement between upon the effective and proportional Colombian, Roma, LGBTI individuals, the Government and the FARC-EP, contribution to the other transitional to displaced persons and exiles, to assured the end to Colombia’s more justice mechanisms and measures. human rights defenders, trade than five decades long internal unionists, journalists, farmers, conflict. It was hailed as a milestone, In this context, and since the signing ranchers, traders and businessmen, nationally and internationally. A of the Peace Agreement, the among others" must be taken into constitutional reform was undertaken, Constitutional Court has played a account. to fast- track and adopt applicable pivotal role, underscoring the rights norms for the implementation of the of victims as the foundation and OHCHR-Colombia participated agreement. However, the overarching purpose of the actively throughout this process by implementation has been patchy. Two years later, the peace process in Colombia now stands at a critical juncture.

On 7 August 2018, President Ivan Duque of the Democratic Center party took up office. During his campaign, he had promised changes to what his party perceived as “structural errors” of the peace agreement. So far the most visible steps taken by the Government has been in the realm of victims’ rights and transitional justice.

At the national level contentious debates on issues of peace, justice, victims’ rights and historical truth have intensified in recent months. While the JEP is directly targeted the other mechanisms, such as the Truth Commission (CEV) and the Special

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UPDATES FROM THE FIELD & HQ providing advisory services to the in London, Paris, and New York. In two-term limit); limit the number of magistrates of the Constitutional August 2019, the CRC moved to the Cabinet Ministers a President can Court, and will continue to do so. It drafting phase of the constitutional appoint to fifteen, excluding the has advocated for the informed and review and delivered its first draft for Attorney General and Minister of active participation of victims in the public comment on 15 November Justice; add 14 seats in the National Comprehensive TJ System and 2019. Having received public Assembly for women and two for supported victims in their dealings feedback on the draft, the CRC is persons with disabilities while with the various mechanisms. Many expected to make appropriate eliminating national assembly seats of the Court´s rulings include refinements and submit the draft to previously set aside for members international norms and standards, in the President in early 2020. It is nominated by the President; outline line with OHCHR recommendations. anticipated that the President will duties and obligations of citizens; and refer the draft to the National transform the Independent Electoral Briefing prepared by: Assembly, which will then deliberate Commission (IEC) to the Independent Andrea Ernudd, Human Rights on the draft before seeking to adopt Boundaries and Electoral Commission Officer, OHCHR Colombia. it by a vote of three-quarters of the (IBEC) with additional power to David Medina, Coordinator of the National Assembly’s 58 Members. If delineate electoral boundaries. The Justice Team, OHCHR Colombia passed by the National Assembly, the draft also has a provision for a 5% draft will go to public referendum Development Fund, first of its kind. The GAMBIA where it will require a turnout of 50% And it retains a clause from that of eligible voters and a “yes” vote by exempts personal status laws The constitutional review process 75% of those voting in order to be (marriage, divorce, child custody, in The Gambia ratified. The referendum is expected inheritance and other similar matters) to be conducted before the end of from the clause prohibiting As a key benchmark in the Gambia’s 2020. discrimination against women. democratic transition, the National Assembly of the Gambia established The draft submitted for public UNDP has provided substantial the Constitutional Review comment in November 2019 vastly technical and financial support to the Commission (CRC) on 13th December changed the 1997 Constitution. constitutional review process. In 2017, which came into being by Among the key amendments are ones addition to the induction for the CRC Presidential assent on 13th January that limit the President to two five- in 2018, UNDP has supported its 2018. The mandate of the CRC is to year terms (with the current installation and start up, providing review the 1997 Constitution through president’s term counting towards to capital goods for the CRC, funded the a process of widespread public consultation while adhering to core principles, including respect for a republican system of government, democratic values, promotion of fundamental rights, separation of powers, and national unity and cohesion, among others.

In pursuant of its mandate, the CRC commenced its work by participating in an induction conference, co-hosted by UNDP and International IDEA in July 2018. Since that time, the CRC has conducted both internal and external consultations targeted at citizens, government institutions, political parties, civil society organizations as well as developed partnerships with international partners. Externally, the CRC conducted consultations with Gambians in the diaspora, including

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UPDATES FROM THE FIELD & HQ nationwide consultations, funded TUVALU technical experts from Kenya and

Ghana, supported youth and women’s On May 21st, after more than two groups to prepare position papers to years, two rounds of public the CRC on youth and women’s rights consultations, a national conference, and equality, and co-hosted with and numerous iterations of drafts, the International IDEA and IRI a Parliament of Tuvalu scheduled a workshop for National Assembly special session to table the communities, women, youth, groups members in October 2019 – the Constitutional Reform Bill of 2019 for representing persons with disabilities, purpose of which was to help prepare a First Reading in Parliament. faith-based organizations, the private the National Assembly members for Tuvalu’s constitutional review has sector, civil servants, and CSOs. The their eventual role in deliberating on been led by the Constitutional Review NCC served as a validation exercise the draft once received from the Committee (CRC), and as previously for the CRC to present its findings President. UNDP, also with reported by the UN Constitutional, is and elicit feedback on the key issues International IDEA and International an endeavor to improve governance and amendments being proposed. Republican Institute (IRI), co-hosted in Tuvalu, enhance fundamental Based on the feedback from the a workshop for CSOs in October to rights (especially for women and public consultations and the NCC, the support their continued engagement disabled persons), and preserve and CRC developed drafting instructions in the constitutional review process. strengthen aspects of traditional for the Secretariat to produce a Draft Tuvaluan culture. As the CRC nears completion of its Bill. The Draft Bill was reviewed and mandate (which ends shortly after But above all, perhaps, the discussed by the CRC in February the CRC delivers its draft to the constitutional review has been an 2019 in anticipation of the First President), Gambians will turn to the opportunity for Tuvaluans to Reading in May. deliberations in the National scrutinize arrangements inherited at What happened next is a cautionary Assembly and then the referendum. the time of Tuvalu’s independence tale on the need to keep the The unusually high threshold and make the constitution truly their politicians on board alongside other requirements for turnout and own. At no time in Tuvalu’s history – key societal stakeholders and the approval will be an extreme challenge either at its inception or during any general public. For while the NCC and underscores the need for truly subsequent constitutional confirmed broad public support for national consensus and support for amendment process – have the the amendment bill, certain issues the draft. Nationwide voter education Tuvaluan people ever been directly generated enough vexation by the and mobilization of electorates in the asked what they think their Cabinet that the Constitutional run-up to the referendum will be constitution should say or what Reform Bill of 2019 was rejected at crucial. UNDP will continue to support principles and values it should First Reading. With a very popular the CRC, National Assembly, the espouse. Perhaps the greatest bill now on life support, the Cabinet National Council for Civic Education indicator of the gulf between Tuvalu’s reconstituted the CRC as the (NCCE). the Independent Electoral constitution and its people is that, to Constitutional Action Committee to Commission, CSOs, and other actors date, the Tuvaluan Constitution exists propose a slightly modified bill later who will play a central role in this only in English; it has never been in May. This bill failed even to critical milestone for the Gambia’s translated into the Tuvaluan receive a vote and instead was democratic transition. language. rejected on parliamentary procedural Briefing prepared by: From the onset public input was a grounds. The rejection of the two Yirah Mansaray, Governance Officer. centerpiece of the constitutional bills came in the runup to UNDP Gambia. review. The CRC conducted two parliamentary elections, which took rounds of public consultations and place on September 9. The new held a National Constitutional parliament is expected to take up the Conference (NCC). The NCC, which issue of constitutional reform in 2020.

took place from 28 October to 10 Briefing prepared by: November 2018, included a broad Mohammed Mozeem. Former range of Tuvaluan stakeholders, Governance Analyst, UNDP Pacific including MPs, traditional high chiefs, Region.

representatives of Tuvaluan island

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THE UN

This publication is a joint effort between the United Nations Department of CONSTITUTIONAL Political and Peacebuilding Affairs (DPPA), the Department of Peace Operations (DPO), OHCHR, UNDP, UNICEF, and UN Women to strengthen system-wide information sharing, coordination, and partnership in the area of constitutional assistance.

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