Good governance and constitutional reform

Over these last two years, we have heard and read about Constitutional Reform, Public Consultation on related proposed reforms, its Committee Foundation and a promised Constitutional Convention. So where do we go from here?

In Malta, apparently, a consensus has emerged among the Government, non-governmental organisations, and civil society on the vital role that governance plays in economic and social development. Strengthening the four elements of good governance — accountability, transparency, participation, and predictability — can increase government efficiency and impact. Constitutional reform can be a vital tool to promote good governance by changing the rules to promote more accountability, transparency, participation, and predictability. A constitution defines and protects citizens’ rights from governmental abuse. It also limits and balances government powers vis-à-vis other players and institutions, thereby safeguarding minority rights.

The constitution is the touchstone for the legality of all other laws and the basis for reviewing executive and legislative actions. Constitutional reform is the process of reconstructing the constitution and the laws it governs through public consultation and negotiation. It has become a popular method for countries to account for past institutional failures, reconstruct political structures after authoritarian rule, and ensure better governance for the future. More than half the nearly 200 national constitutions in place around the world today are less than 25 years old. In the last decade alone, roughly 70 emerging democracies have completely rewritten or substantially altered their constitutions.

In the last decade alone, roughly 70 emerging democracies have completely rewritten or substantially altered their constitutions.

The empirical evidence emerging suggests a two-fold nexus between constitutional reform and good governance. The first lies in the very process of drafting the constitutional document. The more inclusive, participatory, and transparent that process is, the more likely will the political order be seen as legitimate; and a political culture will emerge that fosters the four good governance criteria. The other is through constitutional choices.

Constitutional reform demands that critical institutional choices be made in such broad areas as a form of government, electoral law, degree of centralisation, and judicial and quasi-judicial agencies, to name only a few. The outcome is that the constitution becomes the cornerstone of a country’s governance system. It stipulates where power lies within the state, what the institutions of government are, and how they are intended to operate. Good governance emerges from its structural provisions, such as separation of powers and statement of explicit rights that guard against authoritarian control. As the highest legal norm within the hierarchy of norms, the constitution also becomes a reference point for the legality of administrative and legislative actions. In sum, constitutional reform ultimately embodies governance reform.

The choices available for constitutional reforms are many, but despite the wide array of options available, reform is not easy to design: while the institutional choices significantly affect policy outcomes and the quality of governance, the constitutional framework will claim legitimacy and broad respect only if the major political and social players in each country take ownership of the process and achieve a consensus on the basic rules. Support for desirable institutional choices and a process that lends legitimacy to the choices are both crucial and must be carefully balanced. Reformers must first shape institutions that address governance needs raised by local political culture and conditions. They must then introduce the reforms through an inclusive and participatory process that gives them legitimacy.

When a country decides to reform its constitution, many questions will arise, relating more to process than to content. Typical, though far from the only, questions are the following: Should the constitution be amended or completely rewritten? Who will draft it? How will they be selected? How much public participation is desirable? Who will decide whether to accept the final draft?

The process of constitutional reform matters significantly. First, to the legitimacy the document can claim, and second to the final content. The process is as important as the outcome. Electing the members of a constitutional convention and ratifying the text by referendum, public hearings, media campaigns, survey research, and solicitation of individual comments increasingly make the public part of the process.

A critical choice is to determine whether the drafting should be left to parliament or an independent group. Questions on how to organise the process can become highly contentious. That is why constitutional reform might eventually stall. Politicians might push for a special parliamentary constitutional convention; civil society groups might take a firm stand for an independent constitutional assembly. Both sides have strong arguments. Politicians are the elected representatives of the people and have the infrastructure to get the job done faster and at a lower cost. Civil society groups point to a contradiction in leaving the reform process to those who are to be reformed. An independent drafting assembly and substantial public participation are time-consuming and costly, for instance, but they greatly enhance the legitimacy of the constitutional order.

Whatever will be decided upon, certain aspects will remain ripe for reform. Religion, citizenship, Presidential Powers, the role and functions of Members of Parliament, Electoral Law, financing of political parties and appointments to sensitive positions will definitely have to be revisited.

More than ten years ago, lawyer Marc Sant had already provided the necessary impetus for a sincere and intelligent discussion on constitutional reform to commence. It is hoped that it will not be long before this very important milestone is reached.

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