POST-CONFLICT CONSTITUTION DRAFTER’S HANDBOOK December 2012 PILPG Post-Conflict Constitution Drafter’s Handbook, December 2012 NOTE FOR USERS The Public International Law & Policy Group’s (PILPG) Post-Conflict Constitution Drafter’s Handbook is intended to assist drafters of constitutions in post-conflict situations. The Handbook draws from PILPG’s experience in facilitating post-conflict constitution drafting processes, as well as comparative state practice, and is based upon analysis of over 150 constitutions from post- conflict and stable states. The Handbook is divided into sixteen chapters, each of which covers a core section in post-conflict constitutions. The chapters include: the Preamble, State Structure and Devolution of Powers, the Executive, the Legislature, the Judiciary, International Legal Obligations, the Electoral System, Financial Matters and the Central Bank, Human Rights, Minority Rights, Women’s Rights, Defense and Security, the Role of Religion, Customary Law, Natural Resources, and Extraordinary Measures. Within each chapter, the Handbook describes core provisions and provides sample language that may be used as a basis for constitutional provisions. In some instances, the Handbook provides several options that the drafter may choose from. The sample language is identified as “Option One” and “Option Two.” In others, the Handbook provides optional language that drafters may include. In those instances the sample language is identified as “Optional.” The intent of this handbook is to provide the drafter with options in structuring constitutional provisions. Since every post-conflict situation is unique, the drafter may change certain elements to enhance the constitution’s relevance and applicability to a particular context. The purpose of the sample language is merely to provide 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. PILPG is committed to supporting constitution drafters in fulfilling their roles, and, upon request, can provide additional assistance in considering particular provisions and language. © Copyright Public International Law and Policy Group, 2012 The Public International Law & Policy Group encourages the use of this document. Any part of the material may be duplicated with proper acknowledgment PILPG Post-Conflict Constitution Drafter’s Handbook, December 2012 TABLE OF CONTENTS CHAPTER I: PREAMBLE AND BASIC PRINCIPLES 1 Identification of the State 1 Supremacy of the Constitution 2 National Identity 3 Influence of Shari’a 4 International Obligations 5 Citizenship 6 Official State Capital, Flag, Anthem, Symbol, and Holidays 7 Official State Language 8 CHAPTER II: SELECTING A STATE STRUCTURE AND DEVOLVING POWER 10 Unitary State 11 Federations 11 Confederations 12 Devolution of Powers 13 Delineating Provinces 13 Distribution of Powers between Central and Provincial Governments 14 Powers Exercised Exclusively by Central Government 14 Powers Exercised Exclusively by Provincial Governments 14 Powers Held by Central Government and Shared with Provincial Governments 15 Powers Not Specifically Allocated 15 Asymmetrical Devolution of Powers 16 Phased Assumption of Powers 18 Adoption of Framework Legislation for Provincial Governments 19 Harmonization of Provincial Legislation 20 Cooperation Between Central and Provincial Governments 20 Dispute Resolution Procedures 21 Constitutional Amendments Regarding State Structure Relationship 21 CHAPTER III: STRUCTURING THE EXECUTIVE BRANCH 23 Structure of Executive Branch Systems 23 Presidential System 24 Parliamentary System 25 Mixed Presidential/Parliamentary System 26 PILPG Post-Conflict Constitution Drafter’s Handbook, December 2012 Powers and Functions 27 Domestic Powers 28 Domestic Powers in a Mixed Presidential/Parliamentary System 30 Foreign Affairs Powers 31 Commander-in-Chief 32 Role of the Cabinet or Council of Ministers 33 Selection and Removal of the Cabinet or Council of Ministers 34 Selection of the President or Prime Minister 35 Removal of the President or Prime Minister 36 Disability or Death of the Executive 36 Impeachment of the Executive 36 Term of Office 37 Eligibility 38 Oath of Office 39 CHAPTER IV: DESIGNING THE LEGISLATURE 40 Structure of the Legislative Branch 40 Unicameral 40 Bicameral 41 Selection of the Speaker 42 Powers and Functions 43 Committees 46 Term of Office and Eligibility of Members 47 Dissolution of the Legislature 47 Additional Options 48 Code of Ethics 48 Legislative Immunity 50 Freedom of Legislative Speech 50 Immunity from Legal Liability 50 Quorum Requirements 51 CHAPTER V: CREATING A JUDICIARY SYSTEM 52 Powers and Functions 52 Judicial Independence 52 Judicial Council 53 PILPG Post-Conflict Constitution Drafter’s Handbook, December 2012 Judicial Authority 55 Structure of the Judiciary 56 Constitutional Court 56 Composition of the Constitutional Court 58 Selection of Constitutional Court 58 Jurisdiction of the Constitutional Court 59 Standing to Bring Cases before the Constitutional Court 61 Binding Effect of Constitutional Court Rulings 62 Supreme Court 62 Composition of the Supreme Court 63 Jurisdiction of the Supreme Court 63 Standing to Bring Cases before the Supreme Court 64 Binding Effect of the Supreme Court 65 Other Courts 65 Shari’a in the Courts 65 Administration of the Judiciary 66 Impartiality 66 Composition of Other Courts 66 Appointment of the Judges 67 Cooperative Selection 67 Presidential Selection 68 Parliamentary Selection 68 Qualifications and Diversity 68 Term of Years and Removal 69 CHAPTER VI: INTERNATIONAL LEGAL OBLIGATIONS 71 Incorporating International Law into the Constitution 71 Monist Approach 71 Dualist Approach 72 Hybrid Approach 73 Regulating the Relationship between International and Domestic Law 73 CHAPTER VII: BUILDING AN ELECTORAL SYSTEM 76 Type of Electoral System 76 Plurality System 76 Majority System 77 Proportional Representation 78 Electoral Districting 78 Single-Member District System 79 PILPG Post-Conflict Constitution Drafter’s Handbook, December 2012 Multi-Member District System 79 Minority Mechanisms 80 Mechanisms for Women 81 Procedure for Electing the Legislature 81 Unicameral Legislature 82 Bicameral Legislature 82 Procedure for Electing the Executive 83 Qualifications for Voter Enfranchisement 86 Electoral Commission 86 Electoral Law 88 Political Parties Law 89 CHAPTER VIII: FINANCIAL MATTERS AND THE CENTRAL BANK 91 Collection of Revenue and Taxes 91 Budget 92 Auditing Requirement 93 Central Bank 94 Purpose 95 Powers and Functions 95 Independence 96 Governance 97 CHAPTER IX: PROTECTING HUMAN RIGHTS 99 Mechanisms for Including Human Rights in Post-Conflict Constitutions 99 Fundamental Rights 102 Civil Rights 102 Political Rights 106 Economic Rights 107 Social Rights 108 Cultural Rights 108 Limitations on Human Rights 109 Enforcement Mechanisms for Human Rights 111 Ombudsman 111 Human Rights Commissions 112 Hybrid Human Rights Commissions 113 PILPG Post-Conflict Constitution Drafter’s Handbook, December 2012 Constitutional Courts 115 CHAPTER X: PROTECTING MINORITY RIGHTS 116 General and Specific Minority Protections 116 Freedom of Religion and Culture 118 Potentially Limiting Language 119 Mechanisms to Ensure Representation 120 Set-Asides or Party Requirements within Electoral Systems 120 Group Vetoes 121 Local and Regional Self-Governance 126 CHAPTER XI: PROTECTING WOMEN’S RIGHTS 127 General and Specific Provisions 127 Gender-Neutral Language in the Constitution 127 Referencing the State’s Binding International Obligations 128 Specific Provisions about the Rights of Women 129 Civil and Political Rights 130 Economic, Social, and Cultural Rights 131 Special Protection in Electoral Provisions 132 Gender Equality Commission 133 Potentially Limiting Language 133 CHAPTER XII: DEFENSE AND SECURITY 135 Role of the Armed Forces 135 Domestic Role of the Armed Forces 135 Involvement in Humanitarian and Peacekeeping Missions 137 Organization of the Armed Forces 137 Service Requirements for Citizens 138 Eligibility for Service 139 The Commander-in-Chief 140 Neutrality of the Armed Forces 141 Reintegration of Militias 142 CHAPTER XIII: ROLE OF RELIGION IN GOVERNMENT 143 Official State Religion 143 No Official State Religion 144 Religion as a Source of Law 145 PILPG Post-Conflict Constitution Drafter’s Handbook, December 2012 Protection of Religious Freedoms 146 CHAPTER XIV: CUSTOMARY LEGAL SYSTEMS 148 Recognition of Customary Law 149 Customary Law as Part of the State’s Hierarchy of Laws 149 Specific Recognition of Specific Types of Customary Laws 151 General Recognition of Traditional and Customary Practices 152 Incorporating Customary Authorities in the Executive 153 Customary Law and the Judiciary 155 CHAPTER XV: PROTECTING AND REGULATING NATURAL RESOURCES 157 Ownership of Natural Resources 157 State Ownership 157 Regional Ownership 158 Shared Ownership 158 Allocation of Revenue 159 Natural Resource Management 159 CHAPTER XVI: EXTRAORDINARY MEASURES 161 Providing for a State of Emergency 161 Defining a State of Emergency 161 Authority to Declare a State of Emergency 162 Restrictions during a State of Emergency 163 Duration of the State of Emergency 164 Constitutional Enactment and Amendment 164 Constitutional Enactment 164 Vote of the Legislature 165 Popular Referendum 166 Process for Proposing Amendments 166 Process for Drafting Amendments