Rule of Law and Constitution Building The Role of Regional Organizations Rule of Law and Constitution Building The Role of Regional Organizations Contributors: Sumit Bisarya Amanda Cats-Baril Sujit Choudhry Raul Cordenillo Nora Hedling Michelle Staggs Kelsall Lorraine Kershaw Kristen Sample Christoph Sperfeldt George Mukundi Wachira Hesham Youssef The Department of Legal Cooperation, Secretariat for Legal Affairs, Organization of American States Editors: Raul Cordenillo Kristen Sample International IDEA © International Institute for Democracy and Electoral Assistance 2014 International IDEA Strömsborg, SE-103 34, STOCKHOLM, SWEDEN Tel: +46 8 698 37 00, fax: +46 8 20 24 22 E-mail: [email protected], website: www.idea.int The electronic version of this publication is available under a Creative Commons Licence (CCl) – Creative Commons Attribute-NonCommercial-ShareAlike 3.0 Licence. You are free to copy, distribute and transmit the publication as well as to remix and adapt it provided it is only for non-commercial purposes, that you appropriately attribute the publication, and that you distribute it under an identical licence. For more information on this CCl, see: <http://creativecommons.org/licenses/by-nc-sa/3.0/>. International IDEA publications are independent of specific national or political interests. Views expressed in this publication do not necessarily represent the views of International IDEA, its Board or its Council members. Graphic design by: Turbo Design, Ramallah Cover photo: © Artist: faith47, photographer: Rowan Pybus Printed in Sweden ISBN: 978-91-87729-63-8 Foreword The past few years have seen remarkable social movements for democratic change emerge around the world. They have demanded greater justice and dignity, more transparent political processes, a fair share of political power and an end to corruption. In other words, they have demanded democratic societies built on the rule of law. The rule of law and democracy are interlinked and mutually reinforcing, and they belong to the universal and indivisible core values and principles of the United Nations. This was reaffirmed by the General Assembly in its High- Level Meeting on the Rule of Law in September 2012. On the same occasion the General Assembly recognized the important role of regional organizations and called on them to support their Member States in strengthening the rule of law. The rule of law is based on key democratic principles, such as equality before the law, accountability to the law, separation of powers and participation in decision making. Like democracy, the rule of law is a principle of governance anchored in participatory and consultative processes. To be legitimate, laws should be widely consulted and reflective of society’s needs and values. A democratically elected parliament and a vibrant and strong civil society provide ideal mechanisms for achieving this. The importance of inclusive consultations is evident in constitution-making processes. The constitution of a nation represents the social compact between governors and governed. It is the basic law of the land. It affords a unique opportunity to ground a political settlement and build a peaceful future, particularly after years of rupture and chaos, as is often the case in post- conflict situations. In order for such hopes to materialize, a constitution needs to be developed and adopted in an open, consultative and democratic way. International IDEA V The rule of law and constitutionalism are among the key principles and core mandates of many regional organizations. The Charter of the African Union reaffirms that freedom, equality, justice and dignity are essential objectives for the achievement of the aspirations of the African peoples. The European Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights. Unconstitutional changes of government are firmly rejected, for example, by the South Asian Association for Regional Cooperation Charter of Democracy and the Inter-American Democratic Charter. In practice regional organizations play a critical role in the formulation of normative frameworks, in supporting their Member States to strengthen democratic and accountable institutions, and in facilitating rules-based cooperation and peaceful settlement of disputes between Member States. In short, they strengthen the rule of law at national and international levels. In so doing, they contribute to the implementation of Chapter VIII of the Charter of the United Nations: maintenance of peace and security in their regions. In turn, this provides the conditions conducive to sustainable development and the promotion and protection of human rights for all. The Inter-Regional Dialogue on Democracy, in particular through its meeting on the rule of law and constitutional governance and this resulting publication, has played a valuable role in advancing these intertwined, universal and global themes from the critically important regional perspective. I hope this publication will serve as an important contribution to further dialogue and the strengthening of the role played by the regional organizations in promoting the rule of law and constitutionalism across the globe. Jan Eliasson Deputy Secretary-General and Chair of the Rule of Law Coordination and Resource Group of the United Nations VI International IDEA Preface The rule of law and constitution building are two concepts at the heart of sustainable democracy. Broadly speaking, the rule of law requires that everyone, including governmental bodies and officials, as well as citizens, is bound by and treated equally under the law. Constitutions, meanwhile, form the central repository and ultimate safeguard of the rule of law at a national level, providing a blueprint for a functioning system of rule of law and protecting and empowering the institutions that implement and enforce this system. Given the centrality of constitutions to the democratic process, the International Institute for Democracy and Electoral Assistance (International IDEA) has developed one of the leading programmes on constitution building as part of our work to fulfil our mission to support sustainable democratic change through providing comparative knowledge, assisting in democratic reform, and influencing policies and politics. The Constitution Building Programme supports stakeholders engaging in processes of constitutional change to strengthen democracy and reinforce the rule of law. To do so, the programme produces capacity-building resources, encourages sharing of lessons learned, and provides technical assistance to actors at the local, national, regional, and global levels. This publication focuses on how regional organizations play a key role in the development of democracy in their regions through support for the rule of law and constitution building. This support takes many forms depending on the mandates of the organizations and on regional needs. The diversity of experiences allows regional organizations the opportunity to compare, collaborate, and ultimately sharpen their own practices, enabling them to better fulfil their mandates and better serve their member states. Some key findings in this book could inform the work of regional organizations in supporting the rule of law. Shifting legal and political landscapes can give International IDEA VII rapid rise to changes in adherence to and enforcement of the rule of law at the national level. Regional organizations are uniquely positioned to provide an additional level of protection when these shifts occur. At a fundamental level, the promotion of the rule of law therefore requires vigilance, flexibility, and responsiveness on the part of regional organizations. Regional organizations also operate best when they fully engage their member states and utilize their diverse experiences, expertise, and lessons learned. Programmes for legal cooperation and assistance, for example, provide the opportunity for member states to pool their resources and experiences, enabling regional organizations to better support the rule of law across the region. By developing rule of law standards, regional organizations facilitate the implementation of the rule of law. These standards can serve as aspirational principles or as a tool for monitoring. When standards are accompanied by enforcement mechanisms, regional organizations are equipped to respond to coups or other unconstitutional changes of government, as well as other critical breaches of the rule of law, such as the weakening of democratic institutions or the limiting of rights and freedoms. International IDEA is proud to facilitate the Inter-Regional Dialogue on Democracy, a programme that provides a venue for sharing and collaboration among regional organizations through workshops and high-level meetings. The programme also produces comparative knowledge resources, including this publication, the third in a series dedicated to exploring and sharing the democracy-related work and experiences of regional organizations. Yves Leterme Secretary-General International IDEA VIII International IDEA Acronyms and abbreviations ACDEG African Charter on Democracy, Elections and Governance ACHPR African Commission on Human and Peoples’ Rights ACINET Arab Anti-Corruption and Integrity Network ACMW ASEAN Committee on the Implementation of the Declaration on the Protection and Promotion of the Rights of Migrant Workers ACWC ASEAN Commission on the Promotion and Protection of the Rights of Women and Children