Rule Of Law And Constitution Building - IDEA

Rule of Law andConstitution BuildingThe Role of Regional Organizations

Rule of Law andConstitution BuildingThe Role of Regional OrganizationsContributors:Sumit BisaryaAmanda Cats-BarilSujit ChoudhryRaul CordenilloNora HedlingMichelle Staggs KelsallLorraine KershawKristen SampleChristoph SperfeldtGeorge Mukundi WachiraHesham YoussefThe Department of LegalCooperation, Secretariat for LegalAffairs, Organization of AmericanStatesEditors:Raul CordenilloKristen Sample

International IDEA International Institute for Democracy and Electoral Assistance 2014International IDEAStrömsborg, SE-103 34, STOCKHOLM, SWEDENTel: 46 8 698 37 00, fax: 46 8 20 24 22E-mail: info@idea.int, website: www.idea.intThe electronic version of this publication is available under a Creative Commons Licence (CCl) – CreativeCommons Attribute-NonCommercial-ShareAlike 3.0 Licence. You are free to copy, distribute and transmitthe publication as well as to remix and adapt it provided it is only for non-commercial purposes, that youappropriately attribute the publication, and that you distribute it under an identical licence. For moreinformation on this CCl, see: http://creativecommons.org/licenses/by-nc-sa/3.0/ .International IDEA publications are independent of specific national or political interests. Views expressed inthis publication do not necessarily represent the views of International IDEA, its Board or its Council members.Graphic design by: Turbo Design, RamallahCover photo: Artist: faith47, photographer: Rowan PybusPrinted in SwedenISBN: 978-91-87729-63-8

ForewordThe past few years have seen remarkable social movements for democraticchange emerge around the world. They have demanded greater justice anddignity, more transparent political processes, a fair share of political powerand an end to corruption. In other words, they have demanded democraticsocieties built on the rule of law.The rule of law and democracy are interlinked and mutually reinforcing, andthey belong to the universal and indivisible core values and principles of theUnited Nations. This was reaffirmed by the General Assembly in its HighLevel Meeting on the Rule of Law in September 2012. On the same occasionthe General Assembly recognized the important role of regional organizationsand called on them to support their Member States in strengthening the ruleof law.The rule of law is based on key democratic principles, such as equality beforethe law, accountability to the law, separation of powers and participation indecision making. Like democracy, the rule of law is a principle of governanceanchored in participatory and consultative processes. To be legitimate, lawsshould be widely consulted and reflective of society’s needs and values. Ademocratically elected parliament and a vibrant and strong civil societyprovide ideal mechanisms for achieving this.The importance of inclusive consultations is evident in constitution-makingprocesses. The constitution of a nation represents the social compact betweengovernors and governed. It is the basic law of the land. It affords a uniqueopportunity to ground a political settlement and build a peaceful future,particularly after years of rupture and chaos, as is often the case in postconflict situations. In order for such hopes to materialize, a constitution needsto be developed and adopted in an open, consultative and democratic way.International IDEA V

The rule of law and constitutionalism are among the key principles andcore mandates of many regional organizations. The Charter of the AfricanUnion reaffirms that freedom, equality, justice and dignity are essentialobjectives for the achievement of the aspirations of the African peoples. TheEuropean Union is founded on the values of respect for human dignity,liberty, democracy, equality, the rule of law and respect for human rights.Unconstitutional changes of government are firmly rejected, for example, bythe South Asian Association for Regional Cooperation Charter of Democracyand the Inter-American Democratic Charter.In practice regional organizations play a critical role in the formulation ofnormative frameworks, in supporting their Member States to strengthendemocratic and accountable institutions, and in facilitating rules-basedcooperation and peaceful settlement of disputes between Member States. Inshort, they strengthen the rule of law at national and international levels. In sodoing, they contribute to the implementation of Chapter VIII of the Charterof the United Nations: maintenance of peace and security in their regions. Inturn, this provides the conditions conducive to sustainable development andthe promotion and protection of human rights for all.The Inter-Regional Dialogue on Democracy, in particular through itsmeeting on the rule of law and constitutional governance and this resultingpublication, has played a valuable role in advancing these intertwined, universaland global themes from the critically important regional perspective. I hopethis publication will serve as an important contribution to further dialogueand the strengthening of the role played by the regional organizations inpromoting the rule of law and constitutionalism across the globe.Jan EliassonDeputy Secretary-General andChair of the Rule of Law Coordinationand Resource Group of the United NationsVI International IDEA

PrefaceThe rule of law and constitution building are two concepts at the heart ofsustainable democracy. Broadly speaking, the rule of law requires thateveryone, including governmental bodies and officials, as well as citizens,is bound by and treated equally under the law. Constitutions, meanwhile,form the central repository and ultimate safeguard of the rule of law at anational level, providing a blueprint for a functioning system of rule of lawand protecting and empowering the institutions that implement and enforcethis system.Given the centrality of constitutions to the democratic process, theInternational Institute for Democracy and Electoral Assistance (InternationalIDEA) has developed one of the leading programmes on constitution buildingas part of our work to fulfil our mission to support sustainable democraticchange through providing comparative knowledge, assisting in democraticreform, and influencing policies and politics. The Constitution BuildingProgramme supports stakeholders engaging in processes of constitutionalchange to strengthen democracy and reinforce the rule of law. To do so,the programme produces capacity-building resources, encourages sharingof lessons learned, and provides technical assistance to actors at the local,national, regional, and global levels.This publication focuses on how regional organizations play a key role in thedevelopment of democracy in their regions through support for the rule oflaw and constitution building. This support takes many forms dependingon the mandates of the organizations and on regional needs. The diversityof experiences allows regional organizations the opportunity to compare,collaborate, and ultimately sharpen their own practices, enabling them tobetter fulfil their mandates and better serve their member states.Some key findings in this book could inform the work of regional organizationsin supporting the rule of law. Shifting legal and political landscapes can giveInternational IDEA VII

rapid rise to changes in adherence to and enforcement of the rule of law at thenational level. Regional organizations are uniquely positioned to provide anadditional level of protection when these shifts occur. At a fundamental level,the promotion of the rule of law therefore requires vigilance, flexibility, andresponsiveness on the part of regional organizations.Regional organizations also operate best when they fully engage their memberstates and utilize their diverse experiences, expertise, and lessons learned.Programmes for legal cooperation and assistance, for example, provide theopportunity for member states to pool their resources and experiences,enabling regional organizations to better support the rule of law across theregion. By developing rule of law standards, regional organizations facilitatethe implementation of the rule of law. These standards can serve as aspirationalprinciples or as a tool for monitoring. When standards are accompanied byenforcement mechanisms, regional organizations are equipped to respondto coups or other unconstitutional changes of government, as well as othercritical breaches of the rule of law, such as the weakening of democraticinstitutions or the limiting of rights and freedoms.International IDEA is proud to facilitate the Inter-Regional Dialogue onDemocracy, a programme that provides a venue for sharing and collaborationamong regional organizations through workshops and high-level meetings.The programme also produces comparative knowledge resources, includingthis publication, the third in a series dedicated to exploring and sharing thedemocracy-related work and experiences of regional organizations.Yves LetermeSecretary-GeneralInternational IDEAVIII International IDEA

Acronyms and DCICCICJICRCLASMCGAfrican Charter on Democracy, Elections and GovernanceAfrican Commission on Human and Peoples’ RightsArab Anti-Corruption and Integrity NetworkASEAN Committee on the Implementation of the Declaration on theProtection and Promotion of the Rights of Migrant WorkersASEAN Commission on the Promotion and Protection of the Rights ofWomen and ChildrenAfrican Governance ArchitectureASEAN Human Rights DeclarationASEAN Intergovernmental Commission on Human RightsAfrican Peace and Security ArchitectureAssociation of Southeast Asian NationsAfrican UnionCentral African RepublicCouncil of Europecivil society organizationEuropean CommissionEuropean Court of JusticeEnhanced Consultative Mechanism (Pacific Islands Forum)Economic Community of West African StatesEuropean ParliamentEminent Persons’ Group (Pacific Islands Forum)European UnionForum Island CountriesForum Regional Security Committee (Pacific Islands Forum)Inter-American Democratic CharterInternational Criminal CourtInternational Court of JusticeInternational Committee of the Red CrossLeague of Arab StatesMinisterial Contact Group (PIF)International IDEA IX

MEFMESICICMalaitan Eagle ForceMechanism for Follow-Up on the Implementation of the Inter-AmericanConvention against CorruptionNCANational Constituent Assembly (Tunisia)NGOnon-governmental organizationNHRInational human rights institutionOASOrganization of American StatesOAUOrganization of African UnityOISOrganization of Islamic StatesOSCEOrganization for Security and Co-operation in EuropePIFPacific Islands ForumPSCPeace and Security Council (African Union)RAMSIRegional Assistance Mission to Solomon IslandsRECregional economic communityREMJAMeetings of Ministers of Justice or Other Ministers or Attorneys General ofthe AmericasSAARCSouth Asian Association for Regional CooperationSAARCLAW South Asian Association for Regional Co-operation in LawSACEPSSouth Asia Centre for Policy StudiesSDOMDSAARC Drug Offences Monitoring DeskSOSMASecurity Offences (Special Measures) Act (Malaysia)STOMDSAARC Terrorist Offences Monitoring DeskTEUTreaty on European UnionUAEUnited Arab EmiratesUDHRUniversal Declaration of Human RightsUNUnited NationsUNCACUnited Nations Convention Against CorruptionUNSMILUnited Nations Support Mission in LibyaX International IDEA