Annual Review of Constitution- Building Processes: 2017 Annual Review of Constitution- Building Processes: 2017 Contributors: Adem K. Abebe, Sumit Bisarya, W. Elliot Bulmer, Amanda Cats-Baril, Erin Houlihan, Lea Mano and Asanga Welikala © 2018 International Institute for Democracy and Electoral Assistance International IDEA publications are independent of specific national or political interest. Views expressed in this publication do not necessarily represent the views of International IDEA, its Board or its Council members. The electronic version of this publication is available under a Creative Commons Attribute- NonCommercial-ShareAlike 3.0 (CC BY-NC-SA 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 visit the Creative Commons website: <http://creativecommons.org/licenses/by-nc-sa/3.0/>. International IDEA Strömsborg SE–103 34 Stockholm Sweden Telephone: +46 8 698 37 00 Email: [email protected] Website: <http://www.idea.int> Design and layout: International IDEA Cover image: Tuvalu House, on the atoll of Funafuti, which houses Tuvalu's parliament (Palamene o Tuvalu). © Dmitry Malov/Dreamstime.com DOI: <https://doi.org/10.31752/idea.2018.72> ISBN: 978-91-7671-224-5 Created with Booktype: <https://www.booktype.pro> International IDEA Contents Preface ......................................................................................................................... 5 Introduction ................................................................................................................ 7 1. Electing African executive presidents: beyond a false dilemma ....................... 9 2. Referendums on secession and state responses in 2017: Catalonia and Kurdistan ................................................................................................................... 22 3. Transitional justice and constitution-building processes ............................... 55 4. New modalities of public involvement in constitution-building processes .. 67 5. An anatomy of failure: the 2014–18 Sri Lankan constitutional reform exercise in context .................................................................................................................. 80 6. Constitutional recognition of religious identity ................................................ 95 About the authors .................................................................................................. 107 About International IDEA ....................................................................................... 109 Preface Preface The strategy of the International Institute for Democracy and Electoral Assistance (International IDEA) for 2018–2022 describes the organization as a ‘think and do tank’. As such, the Institute combines global, policy-relevant research and international comparative knowledge production with country-level technical assistance on democratic reform. This complementary nature is key to our added value for our Member States. In addition to generating knowledge we work on the ground in countries as diverse as Paraguay and Yemen, Myanmar and Ukraine. We use our in-house expertise and knowledge base to add value to our technical assistance activities. Reading through the 2017 edition of the Annual Review of Constitution-Building Processes, I am convinced that the mutually reinforcing circle of comparative knowledge production and advice given in country programmes is part of what makes International IDEA unique and able to fulfil its mandate to strengthen and safeguard democratic institutions and processes. This Annual Review of Constitution-Building Processes was made possible thanks to our excellent staff spending a good deal of time on the ground, engaging with national stakeholders who are leading constitutional reform processes. From Tuvalu (Chapter 6) to the Gambia (Chapters 1 and 4), our colleagues are working with partners on the ground and are able to translate those experiences and lessons learned into publications such as this Annual Review. In line with its mandate, International IDEA zooms in on salient issues and trends arising in the field, convenes thought leaders at the international policy level, and develops resources and sets agendas around these emerging topics. This edition of the Annual Review highlights the links between transitional justice and constitution-building processes (Chapter 3), and the increasing use of citizens’ assemblies (Chapter 4), two central themes in 2017. In 2018, in partnership with International IDEA 5 Annual Review of Constitution-Building Processes: 2017 the Center for Deliberative Democracy at Stanford University, International IDEA convened a meeting of high-level experts and practitioners working on citizens’ assemblies to develop lessons learned and guidance on the use of such mechanisms in constitution-building; the Institute also co-hosted the fifth Edinburgh Dialogue on Post-Conflict Constitution-Building, on the intersection between transitional justice and constitution-building, with the University of Edinburgh. Chapter 5 analyses the ‘anatomy of a failed process’ in Sri Lanka and raises the complicated notion of political culture as a factor in the waning momentum for reform. In 2018, International IDEA picked up this issue at the third Melbourne Forum on Constitution-Building in Asia and the Pacific, organized in partnership with the Constitution Transformation Network, which brought experts and practitioners from several jurisdictions across the Asia-Pacific region to exchange experiences and lessons learned about how political culture has helped or hindered constitutional reforms in their own countries. I hope the reader will enjoy and learn from this Annual Review of Constitution- Building Processes, which has been developed and written from the point of view of practitioners immersed in these issues in their daily work. Yves Leterme Secretary-General International IDEA 6 International IDEA Introduction Introduction Sumit Bisarya Each year, the International IDEA Annual Review of Constitution-Building Processes provides a series of reflections on some of the central themes and issues that arose across countries attempting constitutional change during the year. As has been the case in previous years, since the first edition covering 2013, the 2017 edition reveals a mix of issues that seem to be of perennial relevance and some that seem to be novel and perhaps indicative of new trends and forms of constitution-building. In Chapter 1, Adem Abebe covers systems for electing a president. After surveying the recent constitutional changes and debates taking place in Gabon, the Gambia, Malawi and Togo, Abebe illustrates how the discussion focuses exclusively on a choice between plurality and run-off systems, and how the advantages or disadvantages of these systems are often poorly predicted by their proponents. Importantly, Abebe suggests expanding the constitutional imagination to consider other electoral systems that have been introduced in other continents. Chapter 2 looks at an issue that has made front-page news across the world in recent years—the independence referendum—in particular with regard to the cases of Iraq and Spain. Erin Houlihan explains the constitutional origins of these referendums, and the responses of the parent state to the attempted secession. In doing so, she sheds light on the tension between constitutional arrangements that allow substates to develop secession movements and the powerful constitutional tools at the disposal of the central state, which enable it to take back control. In Chapter 3, Lea Mano and I tackle the nexus between constitution-building and transitional justice. Both processes look back to look forward: transitional justice processes aim to deal with injustices of the past, to provide a basis for International IDEA 7 Annual Review of Constitution-Building Processes: 2017 reconciliation and sustainable peace in the future; while constitutions are drafted to respond to problems in the past by constraining actors in the future. The chapter provides overviews of how these processes are interacting in Colombia and the Gambia, which illustrate a number of different linkages and overlaps between these two aspects of transition. In Chapter 4, Amanda Cats-Baril looks at the innovative modes of citizen participation in constitution-building processes in Chile, Ireland and Mongolia. In Chile, a participatory process was carefully designed using deliberative settings from local to national levels. Although the reform process ultimately stalled, there is much to be admired, and to learn from, in the public consultations that were carried out. Ireland and Mongolia both used forms of citizens’ assemblies to propose constitutional reforms, in which groups of randomly selected citizens were brought together to learn, deliberate and vote on possible reforms. These mechanisms—which first gained attention at provincial level in Canada, and subsequently in Iceland—continue to increase in prominence and are likely to feature in other processes in the future. Chapter 5 is the only chapter to focus on the case of a single country, that of Sri Lanka. The reason for this focus is twofold. First, the constitution-building process garnered widespread attention for the hope it held out, arising as it did from unexpected