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Post-Conflict Constitution Drafter's Handbook

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Post-Conflict Constitution Drafter's Handbook A Global Pro Bono Law Firm Post-Conflict Constitution Drafter’s Handbook Prepared by The Public International Law & Policy Group Paul R. Williams, Executive Director Elizabeth Hahn, Post-Conflict Constitution Project Director Cassandra Tillinghast, Senior Research Associate Emily Nugent, Senior Research Associate January 2007 Post-Conflict Constitution Drafter’s Handbook January 2007 NOTE FOR USERS The Public International Law & Policy Group’s (PILPG) Post-Conflict Constitution Drafter’s Handbook is a guide intended to effectively assist drafters of constitutions in post-conflict situations. The Handbook draws from PILPG’s experience in facilitating post-conflict constitutional drafting as well as common state practice, and is based upon comparative analysis of over 150 constitutions from post-conflict states and from long stable countries. The Handbook divides the core provisions commonly found in post-conflict constitutions into individual chapters. The chapters include: Preamble Provisions, State Structure and Devolution of Powers, the Executive, the Legislature, the Judiciary, Electoral System, Financial Matters and the Central Bank, Human Rights, Minority Rights, Women's Rights, Defense and Security, the Role of Religion, Natural Resources, and Extraordinary Measures. In each chapter, the Handbook describes core provisions and provides sample language options for drafters to incorporate into their constitutions. In some cases, the drafter may select sample language from a variety of options. In these instances, the sample language is identified as “Option One” and “Option Two.” In other cases, the Handbook provides optional language that drafters may or may not wish to include. In those instances the sample language is identified as “Optional.” Because every post-conflict situation is unique, the drafter may have to make adjustments to certain elements to enhance the constitution’s relevance and applicability to a particular context. Although each chapter offers drafters a guiding framework, it may be necessary to reshape the provisions to address the nuances of each situation. The Handbook’s comparative provisions and sample language are not exclusive, recommended, or mandatory. The purpose of the sample language is merely to provide sample language options from ratified constitutions to assist the drafter. The Handbook also contains two annexes. Annex I provides a list all of the constitutions cited in the footnotes and a link to their location on the World Wide Web. Annex II provides a compilation of all the sample language. Contributors: Many of PILPG’s Research Associates, Senior Research Associates, and Advisory Council members contributed to the Handbook, including Elizabeth Hahn (Project Director), Erica Bomsey, Emily Cowley, Hanan Idilbi, Kathleen 2 Post-Conflict Constitution Drafter’s Handbook January 2007 Kelly, Emily Nugent, Deborah Plunkett, Charles B. Rosenberg, Cassandra Tillinghast, Peter Young, and Tritia Yuen. In addition, the Handbook draws heavily from materials prepared for PILPG’s clients by Law Firm Partners, including: Baker & McKenzie; Covington & Burling; Curtis, Mallet-Prevost, Colt & Mosle; DLA Piper Rudnick Gray Cary; Orrick, Herrington & Sutcliffe; Shearman & Sterling; Skadden, Arps, Slate, Meagher, & Flom, LLP; Steptoe & Johnson; Sullivan & Cromwell; Vinson & Elkins; and Wilmer, Cutler, Pickering, Hale & Dorr. 3 Post-Conflict Constitution Drafter’s Handbook January 2007 TABLE OF CONTENTS Chapter I: Preamble Provisions ............................................................................7 Identification of the State 7 Supremacy of the Constitution 8 National Identity 8 Citizenship 9 Official State Capital, Flag, Anthem, Symbol, and Holidays 10 Official State Language 11 Chapter II: Selecting a State Structure and Devolution of Powers .................12 Unitary State 12 Federations 13 Confederations 13 Devolution of Powers 14 Chapter III: Structuring the Executive ..............................................................24 Executive Branch Systems 24 Powers and Functions 30 Role of the Cabinet/Council of Ministers 34 Selection and Removal of Cabinet/Council of Ministers 35 Selection of the President/Prime Minister 36 Removal of the President/Prime Minister 36 Term of Office 38 Eligibility 38 Oath of Office 39 Chapter IV: Designing the Legislature...............................................................40 Structure of the Legislative Branch 40 Powers and Functions 43 Committees 45 Term of Office and Eligibility of Members 46 Dissolution of the Legislature 47 Additional Options 48 Chapter V: Creating a Judiciary System ...........................................................52 Powers and Functions 52 Judicial Independence 52 Judicial Authority 54 Structure of the Judiciary 56 4 Post-Conflict Constitution Drafter’s Handbook January 2007 Administration of the Judiciary 66 Chapter VI: Building an Electoral System.........................................................71 Type of Electoral System 71 Electoral Districting 73 Minority Mechanisms 75 Mechanisms for Women 76 Procedure for Electing the Legislature 76 Procedure for Electing the Executive 78 Qualifications for Voter Enfranchisement 80 Electoral Commission 80 Electoral Law 82 Political Parties Law 83 Chapter VII: Financial Matters and the Central Bank ....................................85 Collection of Revenue and Taxes 85 Budget 86 Auditing Requirement 87 Central Bank 88 Chapter VIII: Protecting Human Rights............................................................92 Mechanisms for Including Human Rights 92 Regulatory and Protective Mechanisms 102 Potentially Limiting Language 107 Chapter IX: Protecting Minority Rights ......................................................... 109 General Provisions 109 Potentially Limiting Language 119 Chapter X: Protecting Women’s Rights...........................................................122 Mechanisms for Including Women’s Rights 122 Potentially Limiting Language 129 Chapter XI: Providing for Defense and Security ........................................... 130 Role of the Armed Forces 130 Organization of the Armed Forces 132 Service Requirements for Citizens 132 Eligibility for Service 134 The Commander-in-Chief 135 Neutrality of the Armed Forces 136 5 Post-Conflict Constitution Drafter’s Handbook January 2007 Chapter XII: Role of Religion in Government................................................ 137 Secularism or State Religion 137 Religion as a Source of Law 141 Protection of Religious Freedoms 141 Chapter XIII: Protecting and Regulating Natural Resources....................... 143 Ownership of Natural Resources 143 Allocation of Revenue 145 Allocation of Authority and Responsibility 145 Chapter XIV: Extraordinary Measures .......................................................... 147 Providing for State of Emergency 147 Constitutional Enactment and Amendment 150 Annex I: Constitutions....................................................................................... 158 Annex II: Sample Language ............................................................................. 161 6 Post-Conflict Constitution Drafter’s Handbook January 2007 Chapter I: Preamble Provisions CHAPTER I: PREAMBLE PROVISIONS Many states begin their constitution with a preamble that outlines the general principals that underlie the entire document. Typically, preambles identify and declare sovereignty of the state, describe national identity, explain the means to achieve citizenship, and detail official symbols, holidays and languages. Identification of the State The constitution may identify the type of government1 and the boundaries of the state that it governs and how the borders may be altered.2 Many constitutions also include a provision declaring the independence and sovereignty of the state.3 Such a declaration may include language providing that state sovereignty is inalienable, indivisible, and non-transferable. This provision may also indicate the source of the sovereignty, which commonly derives from and is vested in the people.4 Sample Language: State Identity Borders: The borders of [State] are [geographic description of boundaries]. Borders may only be altered in accordance with international law, by peaceful means and by agreement. 1Art. 1 of the Albanian Constitution: “Albania is a parliamentary republic.” 2Art. 1 of the Eritrean Constitution: “The territory of Eritrea consists of all its territories, including the islands, territorial waters and airspace, delineated by internationally recognized boundaries.” Art. 2 of the Georgian Constitution: “The territorial integrity of Georgia and the inviolability of the state frontiers, being recognised by the world community of nations and international organisations, shall be confirmed by the Constitution and laws of Georgia.” Art. 5 of the Portuguese Constitution: “1. Portugal comprises the territory on the Continent of Europe as is historically defined and the archipelagos of the Azores and Madeira. 2. The extent and limits of territorial waters and the exclusive economic zone, and the rights of Portugal to the adjacent sea bed, shall be laid down by law. 3. The State shall not transfer ownership of any part of the territory of Portugal, or any of the sovereign rights that it exercises over that territory, unless for the purpose of rectifying frontiers.” 3For example, the constitutions of Eritrea, Latvia, Croatia, Czech Republic, and Mauritania all have this provision. 4Art. 3 of the Eritrean Constitution: “Sovereign power
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