UC Irvine Journal of International, Transnational, and Comparative Law

This article surveys the history and practice of providing constitutional advice. It first examines antecedents, then looks at the contemporary political economy of the process, drawing on the transnational legal order (TLO) framework to evaluate whether or not it can be characterized as a TLO. The answer is a partial yes. We focus on one feature of the modern situation, the presence of corporate actors—including the United Nations, NGOs, and international organizations—in an increasingly dense social field. This development has laid bare tensions and competition among actors, moving the field toward a nascent TLO that is nevertheless unlikely to fully consolidate or institutionalize. We conclude that the field evidences aspects of a transnational legal order but also serves as an arena in which other TLOs contest over outcomes.

Across first Asia and then Africa new states rose from colonial rule in the post-war era that sought to build New Westminster constitutions. The Westminster model was the transnational trend after 1945 in constitution-making for much of the world emerging from colonial rule and was promoted by the Colonial Office, Indigenous leaders and constitutional advisers such as the ubiquitous Sir Ivor Jennings. However, this flexible and ambiguous regime type caused many political and constitutional crises that questioned the wisdom of applying Westminster to these states. Jennings worked across Africa and Asia including in Ceylon, Nepal, Malaya, Singapore, the Maldives, Sudan, Ethiopia, South Africa, and the Federation of Rhodesia and Nyasaland. It is Pakistan, however, that sticks out as Jennings’s most controversial role where he effectively, legally and politically, contentiously defended a “constitutional coup” by the Governor- General against the Constituent Assembly in 1954. The case also serves to demonstrate how the manipulation and divisive interpretations of Westminster conventions and institutions in the first decade of Pakistan led to the breakdown of democracy and laid conspicuous precedents for dictatorship and military rule, which have explanatory value in understanding the country’s prevalent fragility in embedding accountability and democracy.

This article examines the contribution to transnational constitution-making of the European Commission for Democracy through Law, better known as the Venice Commission. While part of the Council of Europe, the Venice Commission is much less understood than the European Court of Human Rights (ECHR), notwithstanding the existing literature.1 This chapter therefore seeks to explicate and evaluate. It begins by explicating the organizational foundations of the Venice Commission, followed by analysis of its remit and role. The focus then shifts to triggering and working methodology.
The remainder of the article is concerned with evaluation of the Commission’s role in relation to constitution-making as broadly conceived, the analysis being situated within the literature concerning transnational legal orders (TLOs).2 There is an overview of the central elements of TLO theory, the reasons why the Venice Commission can be conceptualized within this theoretical frame, and its distinctive contribution to constitution-making. TLOs are increasingly prevalent across diverse fields, including those concerned with constitutions, democracy, human rights and the rule of law. The prevalence of TLOs renders it all the more important that they are subject to the same searching evaluation that we commonly bring to bear when analyzing national norms. To this end there is more detailed analysis of the process rights and procedure afforded to the state that is the subject of a Venice Commission opinion, and the substantive criteria and standards that the Commission considers when producing its opinions. The article concludes with discussion of implementation by the addressee of the opinion, and the broader impact of the Commission through sharing best practice and cooperation.

Part I of this article frames the problem of constraint at the domestic level during constitution-making processes. While acknowledging that the issue is not universal, it argues that the absence of effective constraint from domestic institutions is a common one and that this absence is associated with a range of longer-term problems including the erosion of democracy and the increase in political tension associated with “failed” constitution-making. Part II considers the strengths and drawbacks of four distinct models of international intervention: (1) democracy clauses requiring that states abide by their own domestic mechanisms of constitutional change, (2) international norms directly governing the procedure or substance of constitution-making, (3) international organizations or NGOs wielding “best practices,” and (4) review of constitution-making processes and texts by advisory bodies at the supranational level. Part III concludes by arguing that since the problem of abusive constitution-making is particularly difficult to solve at either the domestic or international levels, the most feasible approach involves making some use of all of these distinct tools while recognizing each of their limitations.

It could be argued that since the dawn of the peace-building era in the early 1990s, public participation in constitution-making processes has developed into a transnational legal norm. International organizations, NGOs, CSOs, scholars and think tanks around the globe repeatedly stress the value of including ordinary citizens in the making of their founding laws. As a consequence, the practice of participatory constitution-making has also increased. Though this is a seemingly established transnational legal norm, it is still a norm that has been more or less successfully adopted in different contexts. This article takes an interest in exploring why this is so. How is it that this norm is institutionalized in some contexts, internalized in others, institutionalized and internalized in yet other contexts, and simply rejected in still other contexts?