Constitutions Can Increase Democratic Legitimacy

A constitution can build legitimacy by establishing principles like checks and balances, accountability and the rule of law into a system of basic laws. If the people know that there are strict rules and limits on government power, this can increase their trust and make them more willing to obey the government.

A constitution with strong laws about who can have power and how they can use their power helps to limit corruption. It can also prevent one institution from getting too much political power. In order to achieve these goals democratic constitutions usually include the following features:

• Separation of powers among the legislative, executive and judicial branches of government

• Separation of powers among central and regional governments

• Institutions that promote political participation (such as elections)

• Rules, laws and institutions that promote transparency, accountability and the rule of law in government

• Rules, laws and institutions that promote accountability and give citizens the opportunity to remove governments from power if they lose their legitimacy

Constitutions, Legitimacy and Political Parties

Constitutions enjoy broader legitimacy if they emerge from inclusive, representative and participatory processes that allow all political actors to create common institutions. As intermediaries between the legislature and the people, political parties have the crucial role of ensuring that constitutions reflect the values and identity of the citizens of a country.

In order to ensure the legitimacy of constitutional processes as well as their sustainability, it is of crucial importance to facilitate an agreement between the main political parties on the need for and exact modalities of any upcoming reform process. For example, prior to the commencement of reform processes, political parties in a number of countries also agreed on a set of ‘basic democratic principles’, which were expected to be reflected within the new (or revised) constitution.

When the basis for reform is created across the political divide, this can enhance the commitment of all the participating political parties to the reform process and the adoption of its final outcome. It also generates a legitimate basis for any support provided by the international community.

Quotas

Political parties with inclusive and democratic structures affects strengthen the legitimacy of a constitution by representing the interests of minorities and marginalized groups within their members and supporters. This role is often strengthened by constitutions that regulate parties to promote diversity in their selection of candidates (see the box below). For example, The Rwandan Constitution contains reserves 24 out of 80 seats in the legislature’s lower house as well as 30 per cent of the seats in the Senate for women.28 Not long after the implementation of these quotas, women held 56.3 per cent of the seats in the Rwandan Parliament, the highest level of female parliamentary representation in the world.

Affirmative Action in the Constitution of Argentina Article 37 of the Constitution of the Argentine Nation (1994) (1) This Constitution guarantees the full exercise of political rights, in accordance with the principle of popular sovereignty and with the laws derived therefrom. Suffrage shall be universal, equal, secret and compulsory. (2) Actual equality of opportunities for men and women to elective and political party positions shall be guaranteed by means of positive actions in the regulation of political parties and in the electoral system.

 

Constitutions can Increase Stability

Constitutions can also make states more stable because they often include systems for avoiding and resolving conflict. This means that reliable and tested systems will be in place to deal with crises or conflicts when they emerge. These conflicts can either be between different institutions (resolved by a constitutional court) or between different social groups (resolved by a bill of rights). In both cases, having basic laws that people can rely on is an important tool to promote peace and stability.

Establishing the framework for policies and institutions to promote development, security and peace. Some of the most important functions of a constitution related to promoting stability include:

1. Providing the legal, and institutional framework for the market to function and to ensure the co-ordination of the various components of the economy. This might include the management of resources, the provisions for a stable currency, banking and insurance services, the nation’s infrastructure and the state’s economic relations with other economies and international economic institutions.

2. Guaranteeing law and order, the security of its residents, and defending the country against external attacks. This might include establishing the structure of the police and armed forces, the legal system, and safeguarding natural resources.

3. Putting in place mechanisms and procedures to resolve disputes that occur in society. This might include creating mechanisms for resolving disputes between manufacturers and consumers, among trading partners, between employers and employees, between citizens and public authorities, between landlords and tenants

4. Ensuring national unity and social cohesion and fostering a sense of public responsibility and commitment to the public good. This might include ensuring fair distribution of resources across the country and across social classes, creating symbols of national unity or ensuring that all communities are treated fairly and that all communities benefit equally from the state’s laws and policies.

Stability, Ethnic Conflict and Political Parties

Many constitutions include laws that aim to regulate potentially destabilizing powerful forces in a country. Some constitutions include provisions that aim to prevent ethnic conflict by through protecting the group rights of different ethnic groups (e.g. Bosnia and Herzegovina). Some constitutions address the danger of ethnic conflict through regulation of political parties. For example, they might:

• Ensure the participation of different political parties by regulating candidacy for presidential and some other legislative and executive posts. Examples of this include the permanent assignment of the presidency to one group and the prime minister’s post to another (Lebanon) or in Burundi, in 2001, a three year, transitional power-sharing agreement was signed under which a Tutsi president and a Hutu vice-president would hold office in the first period and exchange roles in the second period. In the cabinet, 14 out of 26 portfolios went to Hutus.

• Ensuring the representation of minority parties or minority candidates though regulation of the electoral systems. For example, the electoral systems in Lebanon and Nigeria attempt to influence the pre-electoral strategies of political parties. The Lebanese electoral system contained ethnically reserved seats and mixed lists, requiring parties to present ethnically mixed slates of candidates. In Nigeria, where groups are regionally concentrated, a presidential candidate must gain support from different regions in order to get elected, thus, attempting to diminish narrow parochial or regional appeals.

• Ensure power sharing between different political parties by regulating the rules for the formation of government. Examples of this include a constitutional requirement that the executive be composed of equal numbers of the major groups (Belgium); in South Africa, the 1994 elections were based on an agreement granting all parties with a minimum of 5% of the legislative seats the right to be represented in the cabinet. In Northern Ireland, the composition of the Assembly emerges from elections and seats in the executive are distributed based on the parties’ strength in the Assembly.

• Place restrictions on ‘crossing the floor’ by abandoning the party with whose support a person was elected (see box on the opposite page).

• Regulating the registration and operation of political parties, and by emphasizing internal democracy and external accountability (e.g. the constitution of Germany states that parties “internal organization must conform to democratic principles. They must publicly account for their assets and for the sources and the use of their funds.” While Spain’s constitution states that parties’ internal structure and operation “must be democratic”.

Constitutional Provisions Against ‘Crossing the Floor’ Nepal (interim 2006 rev. 2012), Article 49. Vacation of Seats (1) The seat of a member of Parliament shall become vacant in the following circumstances: (f ) if the party of which he was a member when elected provides notification in the manner set forth by law that he has abandoned the party. Nigeria, Article 68. Tenure of Seat of Members (g) being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected: Singapore, Article 46 (2) The seat of a Member of Parliament shall become vacant— (b) if he ceases to be a member of, or is expelled or resigns from, the political party for which he stood in the election;