When a nation needs help with a constitution
When nations need outside help in their constitution-making, it is not so much because they suffer a shortage of experienced knowledgeable constitutional lawyers (although that is the case in a number of countries). It is more because their top constitutional experts are already involved and identified in the political process. What is absent is objective, disinterested advice and counsel.
And the outside advice and counsel cannot come from other governments. How could it be judged "objective" to the people either within or without the nations concerned if it is provided by lawyers from the US Department of STate of those assigned by the foreign ministries of the United Kingdon, France -- or Cuba! The advice and counsel must come from the private sector.
It was in this spirit, with this as a background, that Constitutions Associates was formed some 18 months ago. I had most recently served as constitutional counsel to the prime minister at the Lancaster House Conference which formulated the constitution for Zimbabwe -- and had learned at first hand the advantages of outside, disinterested legal guidance. Our consortium -- with myself as convener/chairman -- now numbers more that 50 (from more than 20 countries), all precedent-wise in constitutional history and develoopment and most of us experienced as legal counsel in the preparation of the constitutions of today. We are pledged to cooperate with and to advise each other in making our services more effective when called upon. Several of us have already been in consultation on constitutions still in the planning stages. And we are ready to do more.
A constitution is the framework which structures the laws, institutions, and customs which govern a nation and its peoples. But a constitution is a great deal more. And that is why there is so much constitution-making today -- and why there should be so much more.
The United States has the World's oldest written constitution, a working constitution which is nearly 200 years old. But more than one-half of the world's 157 national constitutions have been adopted since 1970. In fact, there have been 40 new constitutions since 1978 alone.
Highly publicized is the constitutionmaking process now underway in such nations as Canada (1867) and South Africa (1961). (The dates are the dates of the existing constitutions.) Also well known is the planning for the independence constitutions for soon-to-be-independent nations of Antigua and Belize. Less heralded are efforts in progress to prepare new constitutions for Turkey (1974), Surinam (1975), Cape Verde (1974), and Nicaragua (1974)- among others.
But (for a plethora of diverse reasons) it is even more important to pursue the constitutionmaking procsess in soon-to-be-independent Namibia, in Liberia ( 1847) and Uganda (1967), in Lebanon (1926) and Cyprus (1960), in Saudi Arabia (no constitution) and the Gulf states, and in El Salvador (1962), Guatemala ( 1965), Honduras (1965), and Bolivia (1967).
For a constitution is also the documentary formalization of national compromise and conciliation. A constitution serves to reconcile the competing and conflicting principles and aspirations of a people ; it constitutes the medium for the reconciliation of disparate forces. The constitutionmaking process provides the agenda for dialogue and compromise.
A constitution is also a nation's ideological manifesto. It is the written manifestation of national purpose and national spirit -- unchanged or changing -- as it formulates the rights of a people. And it is the prime medium to restate the priciples and views underlying nationhood.
No wonder Thomas Paine taught that "written constitutions [are] to liberty what a grammar is to language." No wonder Thomas Jefferson argued that "no society can make a perpetual constitution." In this view a constitution "belongs always to the living generation" and "naturally expires at the end of 19 years."
A constitution in the 1980s is even more. It is a nation's showpiece. It tells the world community what a nation is and what it stands for. This most solemn of a nation's governmental documents is also its most important piece of public relations.
El Salvador, to choose but one illustration , should now pursue the constitutionmaking process as the best possible means of reconciling the disparate elements of its population and the disparate ideologies which They espouse. The constitutionmaking process will also provide a forum for people participation and for national identification. Inevitably, it will "advertise" to the international community what kind of nation El Salvador has become. The very fact that El Salvador has embarked upon the process of constitutionmaking will be a signal to the world that it is neither a military dictatorship nor a left-wing totalitarian state, but rather a nation seeking peaceful, democratic alternatives. And with its traditions of constitutionalism, the US should be continually seeking and encouraging constitutional solutions.
What is said in regard to El Salvador is equally true for the other nations listed above