Constitutional Design in Divided Societies

Consociational Democracy was the theory introduced by Arend Lijphart, a world renowned political scientist specializing in comparative politics. It's a power-sharing form of democracy often recommended to deeply divided societies because it guarantees group representation. This paper, first, aims to survey the knowledge of Consociational Democracy as conflict resolution in deeply divided societies. Second, to demonstrate its favourable conditions and how it works. Third, to show its critics. As result, it was found that Consociational Democracy can work under the condition that the conflict must be de-escalated and each parties can negotiate. This approach emphasizes much on elite's role.

Territorial autonomy remains important for the governance of divided societies. The question is rather which understanding of it dominates the political and scholarly debate. This contribution discusses different notions of territorial autonomy that have shaped this debate. It argues that a too narrow focus on concepts of ethnic-territorial autonomy such as multinational federalism fails to recognize challenges that studies on autonomy as a prescription for governing divided societies need to face. These are the issues of secessionism, political polarization and internal minorities within the autonomous territory. The paper concludes with an assessment of the track record of autonomy and highlights the importance of taking into account for such an assessment a number of legal and non-legal context factors. Put differently, territorial autonomy itself is only one of many factors contributing to (un)successful governance of divided societies.

Ethnofederalism has been contested as a solution for diverse societies as seen recently in Nepal (where federalism has been accepted, but the design and number of units remains heavily contested) and Myanmar (where ethnic minority demands for increasing federalization have had to take a back seat to the demands for increasing democracy). It remains a heavily contested subject in Sri Lanka. Concerns are expressed that ethnofederalism will increase pressures for secession and/or lead to increased violence, through increasing a sense of separateness of the people living within that territory, providing resources for political entrepreneurs to mobilize groups against the center and will lead to the persecution of minorities within the ethnofederal units. India is an example of a federation that appears to demonstrate that ethnofederalism decreases rather than increases conflict through its successful reorganization of states along linguistic lines. However, a group-level analysis reveals a more diverse picture. India has simultaneously been both a success and a failure at conflict management.

The United States Constitution could soon be re-written by the states.  Article V of the Constitution authorizes two-thirds of the state legislatures to bypass Congress and demand a convention to initiate federal constitutional amendments addressing any number of issues.  States have adopted resolutions calling for a convention to consider amendments that would, among other things, require a balanced federal budget, eliminate life tenure for Supreme Court Justices, constitutionalize universal healthcare, and even invalidate bulwark rulings such as Roe v. Wade.  In April 2014, Michigan arguably became the thirty-fourth state to adopt such a resolution, and convention supporters believe that a convention should now be convened.     

Although many observers believe that the current convention movement is a political gimmick unlikely to succeed, Article V’s amendment procedures raise fundamental questions about how the amendment power should be allocated between levels of government.  Why should subnational units such as states, provinces, and regions have significant influence in the amendment of national constitutions?  How do other countries allocate the amendment power between levels of government?  What are the likely risks and benefits that constitutional designers should consider when allocating the amendment power?  Despite recent interest in constitutional amendment rules, scholars have not fully addressed many of these issues. 

This article presents findings and analysis from a comprehensive study of decentralization in national constitutional amendment rules.  It provides constitutional designers and scholars with a useable model for understanding how and why constitutional amendment rules might be structured to include subnational units in the amendment process.  Based on an exhaustive review of the amendment rules in the approximately 191 extant national constitutions, the article claims that there are currently five dominant decentralization mechanisms.  The article further claims that although there are real risks associated with strong decentralization of the amendment power, there are several sound normative justifications for including subnational units in the amendment process.  Finally, although one might expect decentralization of the amendment power to correspond to lower amendment rates, the article finds that amendment rates in strongly decentralized systems are actually higher than amendment rates in countries with centralized procedures.   

In sum, this article contributes to the study of comparative constitutional design by providing a systematic approach to decentralization of the amendment power.

The 2009 Honduran constitutional crisis, in which sitting President Manuel Zelaya was captured from the Presidential Palace and flown to Costa Rica under the cover of night, illuminated the danger of entrenched and eternity clauses in fledgling democracies. This paper discusses the way such clauses have been used in the past, identifying three general categories of historical eternity clauses. These categories include clauses that address the character of the government, the spirit or principles of the constitutional regime and finally the character of the country. The article also discusses potential problems that arise when such clauses are written into constitutions of transitional democratic regimes.

In response to increasing calls for constitutional reform in The Republic of Turkey, and the escalating conflict in the Middle East, this paper aims to propose appropriate and effective emergency power provisions for Turkey's recently revised constitution. Through the framing of the academic discipline of constitutional design and in light of the best practices literature regarding emergency powers provisions, this paper seeks to apply the knowledge provided by history and by scholars in the fields of comparative constitutional law and political science to the Republic of Turkey, while taking account of the past and present realities concerning military strength and executive power in the country. An understanding of Turkey's important but precarious geopolitical position and its recent history of both military coups d'état and authoritarian rule will inform a necessary analysis upon which the proposals will build.

Divided societies have pursued different paths in their attempts to design constitutions that settle ethnic tensions while at the same time promoting and consolidating democracy. Some of these projects have been successful while others have not. Constitutional and democratic design in a divided society has been a difficult process. The negotiation and accommodation of group interests have often been characteristics of the development of divided societies such as South Africa, Lebanon, Mauritius, Sri Lanka, Malaysia, and Bosnia and Herzegovina amongst others. The accommodation of contending demands to political and socio-economic rights by diverse ethnic groups – and the strain they present for constitutionality and democracy – has been one the immense challenges confronted by societies that are described by long lasting ethnic division and conflict. Since gaining independence from the United Kingdom in 1970, Fiji politics have been marked by a pattern of coups and constitutional reform. Fiji has negotiated various constitutional arrangements with a view to meeting group claims to difference and equality. While the 1970 and 1997 Constitutions sought a form of multicultural compromise with the realities of Fiji’s demographic make-up, demands for continued ethno-political paramountcy by sections of the indigenous Fijian (iTaukei) population led to the overthrow of the democratically elected governments in 1987 and 2000. The 1990 Constitution institutionalized the privileged ethno-political status of indigenous Fijians while the coup of 2006 ushered in a period of political and constitutional reform that has sought to promote a more civic and ‘ethnically blind’ set of constitutional arrangements. The main research question is: does Fiji’s new ‘ethnically-blind’ constitution increase the likelihood of democratic stability? In order to answer this question, this thesis analyses the failures of Fiji’s earlier constitutional frameworks and examines influential continuities and discontinuities in Fiji’s politics and governance.

Public participation in constitutional reform can play a key role in legitimizing and constructing a lasting constitution. However, few resources have been invested in determining why exactly this is, and what factors should be considered when designing such a process. This paper tackles these difficult questions, investigating the justifications for including public participation in constitutional reform processes and outlining the factors that seem to be the most important to consider when creating a public participation program. After examining how public participation programs were run in Uganda, Kenya, and South Africa during their periods of constitutional reform, the paper then turns to outlining a design for a public participation mechanism for Liberia's current reform processes.

The paper tackles the issue of how to design apex courts in deeply divided societies. Due to internal political turmoil, current political debate in Bosnia revolves also around the question whether the hybrid national-international composition of the Court is still appropriate. This paper will not enter the debate on whether the moment has arrived to call time on international judges, but will show several concrete models that could serve as a basis reforming the composition of the constitutional court of  Bosnia.

In 1992, the Knesset (Israeli parliament) enacted two basic laws, Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty. The enactment of the two laws was hailed as the first step in establishing an Israeli bill of rights and was referred to by jurists as marking the beginning of a "constitutional revolution" in Israeli law.
Two main issues needed to be resolved by the courts after the enactment of the two Basic Laws. The first was the scope of the Basic Laws. The second was their status within Israeli law and in particular their implications for judicial review of primary Knesset legislation. The second question was resolved relatively shortly after the Laws' enactment. In the 1995 decision of United Mizrahi Bank Ltd., the Supreme Court determined that the Basic Laws had supra-legislative, constitutional status and, accordingly, that the Court had the power to declare void primary legislation that contradicted the Basic Laws. While the decision was initially criticized by many, it has since been reaffirmed on numerous occasions.
The dispute with regard to the scope of the Basic Laws, however, and in particular the scope of Basic Law: Human Dignity and Liberty (hereinafter: the Basic Law"), is ongoing. The Basic Law explicitly protects the right to life, body and dignity of the person (Articles 2 and 4), the right to property (Article 3), the right to personal liberty (Article 5), the right of all Israeli nationals to enter the country and the right of all people to leave it (Article 6), and the right to privacy (Article 7). All of these rights had already been recognized by the Court prior to the enactment of the Basic Laws. With the Basic Law’s enactment, however, and following the United Mizrahi Bank decision, these rights were elevated to the status of constitutional rights.
The enactment of the Basic Laws raised questions regarding the status of other rights previously recognized in case law but not explicitly named in either of the Basic Laws. These included rights as important and central as the right to equality, freedom of religion and freedom of expression. Such rights were referred to as the "unnamed" or "unenumerated" rights. The dispute centered on the question whether the Court could interpret the Basic Laws as awarding constitutional protection to such unenumerated rights.
The present article examines the manner by which the Court determines which unnamed rights fall within the scope of the Basic Law. It examines the models of interpretation applied by the Court when recognizing certain unnamed rights while refusing to recognize others. The article argues that different approaches with regard to recognition of particular rights are rooted in different value-based worldviews regarding the essence of human dignity, and argues that the lack of a clear test for the recognition of unnamed rights results from the absence of a robust, well-developed notion of human dignity in Israeli constitutional law. The article purports to demonstrate the importance of developing a concept of human dignity that encompasses the different values and world-views that exist in Israeli society.

Ethnically divided societies that might be described as ‘balanced bicommunal’ (where there are two communities, each of which comes close to representing half of the population) pose a particular challenge to conventional principles of collective decision-making, and commonly threaten political stability. This article analyses the experience of two such societies – Northern Ireland and Fiji – with a view to exploring whether there are common processes in the route by which political stability has been pursued. We assess the manner in which a distinctive relationship with Great Britain
and its political culture has interacted with local conditions to produce a highly competitive, bipolar party system. This leads to consideration of the devices that have been adopted in an effort to bridge the gap between the communities: the Fiji constitution as amended in 1997, and Northern
Ireland’s Good Friday Agreement of 1998. We focus, in particular, on the use of unusual (preferential
voting) formulas for the election of parliamentarians and of an inclusive principle in the selection of ministers, and consider the contribution of these institutional devices to the attainment of political stability. We find that, in both cases, the intervention of forces from outside the political system had a decisive impact, though in very different ways. In addition to being underpinned by solid institutional design, for political settlements to work effectively, some minimal level of trust
between rival elites is required.

The basic logic of democracy is to have a flexible system that allows and enhances political competition among  all political parties. It is the right of every political party to participate in forming a government, to be represented within government institutions, and present a political agenda. In Pakistan’s federal government, it is very important to have an electoral system that offers flexibility to all political parties because almost all political parties are ethnically based. This new
design, which is presented in this paper, provides ethnic proportionality for National Assembly of Pakistan in order to reduce the ethnic conflict of Pakistan. Especially, in the Karachi’s violence significantly relate to election system and differences between these exiting ethnicities lead to ethnopolitical violence.

Mazen Masri, ‘An Assessment of Possible Constitutional Frameworks for a One State Option’, in Leila Farsakh, (Ed.), Rethinking Statehood in Palestine Self-Determination and Decolonization Beyond Partition (Oakland, California: University of California Press, 2021) 225–252.

It seems externally that Korean Democracy has been developed by
the achievement of a peaceful turnover of political power in 1997 and
Political Democratisation in 1987. However political parties eroded their
political representativeness and policy accountability because of an
imperial presidency and totalitarian party's boss which derived from the
political culture of centralized authoritarian, there has been deepening
political indifference shown by the public in consequently. What
attorney general resigned in recent is interpreted as revival of an
authoritative political culture that brings out a conflict between politics
and law.
I mentioned those related with constitutional and legal institutional
remedies in order to cancel the centralized political culture which falls
under the cause of crisis in Korean democracy.
1. The evils of imperial presidency and a representative should be
reformed as follow.
First, presidential term should be served consecutive terms by the
amendment of article 70 and article 128 and additional clause of
constitutional law.
Second, the immunity from arrest of congressperson in the article 44
of constitutional law is better than a privilege of president's criminal
prosecution in article 84 of constitutional law on the terms of legal
protection area, and so must amend the article 44 of constitutional law
as follow that “During the sessions of the National Assembly, no
member of the National Assembly shall be arrested or detained without
the consent of the National Assembly except for both insurrection or
treason and in case of flagrante delicto.”
2. The regionalization should restructure the local government system
of dual principle of hierarchy on the basis of both autonomy and
accountability of local citizens with discarded central politics.
First, ‘the local decentraliztion act' of the power decentralization
should come into force quasi-constitutional effect between constitutional
law and statute.
Second, parties' governance should lead to upsweep not central party
but local party and so reinforce the
responsible politics of local party.
Third, the local administrative politics make scale up both a
democratic representative and autonomous political participation, and
the administrative system of both province and county should be abolished by the criteria of delegation authority and distribution.

Constitutions present the opportunity to set out, in a clear and lasting way, social compromises that attempt to mediate between conflicting social groups and political goals. It is my case in this paper that, when making constitution, we should be willing to be unprincipled: that the compromises made in constitutions should be made purely pragmatically, not guided by any set of general or generalisable theories or principles, but by local, contingent, functional considerations. Their merit lies in their practical ability to temper and defuse disagreement, rather than in any abstract or principled assessment of their quality or conceptual consistency. The best approaches in practice may be inconsistent and unprincipled.

Part I argues against principled accounts of constitutionalism. Far from this being a problem, unprincipled inconsistency is a strength in allowing flexibility and adaptability. Accommodating deep disagreement may require recognising divergent values, and obfuscating (and thus deferring decision about) how they will interact. Church-state arrangements are one good example of this.

Part II explores the inconsistencies of the Irish constitutional position on religion. Despite a common view that it is either bad or incoherent, I argue that that the Irish Constitution was in fact a good and successful pragmatic compromise to mediate between two deeply divided religious groups: an overwhelmingly Catholic and very pious population would not ratify any constitution that gave insufficient respect to religion and would obstruct the pursuit of Catholic values; and a population of Protestants, north and south of the Irish-UK border, that would threaten religious peace and cooperation in the new state and frustrate unification of the island if they felt the Constitution did not protect them to some degree from Catholic majoritarianism.

The paper concludes with a call to embrace unprincipled compromises in constitutions to mediate disagreement, and write, apply, judge and reform constitutions on this basis.

If referendums are not carefully designed and conducted so as to promote moderation, they may undermine deliberation and hence undermine one of the necessary or principal conditions of their own success. Naturally, there is no suggestion here chat referendums can solve all the ills that deeply divided societies face or that democracy can be reduced to referendums. Yet, if skilfully and sensitively designed, they can play a crucial role, so long, that is, as ordinary people are made to feel that their views count for something in the process.

Rights regulate the relationship of individuals and corporations to the state. ... the reality is that the State has effectively displaced the community, and increasingly the family, as the framework within which an individual or group's life chances and expectations are decided. The survival of community itself now depends on rights of association and assembly. Yash Pal Ghai 1
…the point of democratization cannot be just a simple reform of civil society. It also has to be a dismantling of the mode of rule organized on the basis of fused power, administrative justice and extra-economic coercion, all legitimized as the customary. Mahmood Mamdani 2

The precise form of internalization of the provisions of the Council of Europe’s Framework Convention for the Protection of National Minorities in domestic law is crucial in ensuring its long-term effectiveness. Experiences in the Western Balkans raise important questions about the role of minority (or community) rights legislation in deeply divided societies. This article uses the case-studies of Bosnia and Herzegovina, Kosovo and the Republic of North Macedonia to highlight key themes and limitations that have emerged. Comparative analysis reveals a surprising divergence of approaches to internalization in the region. The article further demonstrates that the ‘nation-cum-state paradigm’ remains prevalent, despite the premise of universality. It argues that such legislation can play an important symbolic and practical role, but that legal internalization needs to be seen as an ongoing process. It concludes that attention needs to be given to ensuring the continued particularization and adaptation of such legislation in light of both the limitations and changing circumstances, providing a key lesson also for other divided societies.

In this paper, I introduce a novel concept, the one of power sharing courts. Scholars of judicial politics look at the reasons behind judicial selection and the patterns of decision making within courts through the lens of ideology (left-right). However, the resulting fertile scholarly analysis has not been extended to divided societies, where the main cleavages are not partisan but ethno-national. In these societies, the liberal model of selecting judges and taking decisions within an apex court is often corrected to specifically include politically salient ascriptive cleavages (such as ethnicity/nationality/language/religion). The main thrust of my argument is that there is a model of selecting judges, taking decisions and sharing posts of influence within apex courts in divided societies that has not yet been conceptually captured: power sharing courts. In analogy to consociationalism in the political system, power sharing in the judiciary aims to solve salient inter-community conflicts by including all relevant groups in these bodies on a basis of parity or proportionality. The paper is of equal interest to scholars of constitutional courts, consociationalists, comparatists, as well as country specialists.