There should be ?principles? in constitutional drafting

ldquo;Thinking together, building together, joining together in drafting the constitutionrdquo; is the slogan urging the public to take part in drafting the new constitutionmdash;a commendable effort by the Constitution Drafting Committee (CDC) to promote public participation. While certainly praiseworthy, this constitution would not be the best one possible if its deliberations are not conducted on the basis of good lsquo;principlesrsquo;.

Deliberations based on principles will help create a clear lsquo;conceptual frameworkrsquo; in constitutional drafting as they will induce detailed deliberations in each section and paragraph to make sure they are consistent with those principles.

At this time, there should also be a forum for substantive debates based on the principles that should form the constitutionrsquo;s conceptual framework, such as:

The principle that lsquo;sovereigntyrsquo; ultimately belongs to the people

This principle acknowledges the publicrsquo;s ultimate authority and sovereign rights, through either indirect democracy such as electing a representative, or direct democracy such as the right to collectively propose a legislative bill, to impeach politicians in office, or to voice their opinions on important matters.

If this principle is adhered to, it will be necessary to make sure that every constitutional section is consistent, and does not contradict, with one another. Or if other principles are to be included, there would be substantive debates to ascertain how the power of sovereignty should be exercised to optimize public benefits.

The principle of social contract

If we want the constitution to function like a social contract, which all members in the society agree to set up as a rule to collectively govern them, under this principle every section in the constitution must be a lsquo;consensusrsquo; that everyone in the society accepts. All societal parties must respect the constitution without any disputes.

If we adhere to this principle, the main issue will be that public participation, either direct or indirect, will be of utmost importance. In particular, no provision or section should reflect inequality or unequal treatment favoring one group over another. Nor should the constitution contain any provisions implying the violations of rights or liberties of certain groups. Otherwise, the constitution will surely face strong opposition by the public and there may be another protest demanding for its abolition.

The principle of lsquo;separation of powersrsquo;
Separation of powers is another basic principle that is widely and collectively recognized in democratic governance where the constitution is the highest law designating the establishment of governing bodies and the separation of powers into the legislative, the executive, and the judiciary. Such a separation of powers is meant to create an effective implementation of assigned functions and the counterbalance of power for monitoring purposes.
Separation of powers is likely to continue as our commonly accepted principle. However, upon adhering to this principle, it is necessary to pay respect to and put onersquo;s trust in the three powers in a balanced manner. Past experiences must not be allowed to destroy or overrule this principle, while oversight mechanisms should be allowed to function to ensure that no single power dominates the others. For example, in selecting members of independent institutions the court cannot be allowed to monopolize the role and power in selection or appointment. Rather, there must be a clear selection process based on counter-balance and oversight.

The principle of constitutional amendments

The fact that the Constitution is the highest law generates the notion that constitutional amendments should not be allowed to take place too easily and must be subject to a more special and complicated process than other types of legislation. In the past, therefore, solving problems arising from constitutional loopholes or limitations has faced with much delay due to such a difficulty in constitutional amendments. The involvement of politicians in constitutional amendments have also caused serious complications due to this grouprsquo;s vested interests, and hence their lack of eagerness or willingness in making the necessary changes.
Flexibility in constitutional amendments or ldquo;easily amended is better than easily abolishedrdquo; is therefore another topic worthy of serious consideration. Upon finding that a constitutional provision gives rise to problems in the practical context or adverse impacts on the public, or when the public makes demands for charter amendments, channels must be conveniently available for such modifications by appropriate bodies. This is particularly relevant if one wishes to prove wrong the vilification that constitutions are difficult to change, but easy to abolish---as witnessed in the untimely demise of many previous charters.

The principle of lsquo;effective enforcement in real practicersquo;

One major problem prompting widespread criticism in relation to the 1997 Constitution is its lack of actual enforceability. This problem stems from the fact that several provisions stipulate that organic laws must be in place before these provisions can be enforced, which results in peoplersquo;s not having their rights and liberties protected in accordance with what the Constitution guarantees. In addition, some lofty provisions simply turn out to be non-enforceable in practice.

As such, if we do not wish the fundamental civil rights and liberties to exist only as lofty or sacred-sounding provisions, but as truly enforceable in real practice, we must ensure that provisions in every section contain within them the channels or conditions that guarantee their enforceability. For example, all provisions must be backed by a particular piece of legislation that clearly spells how those rights are to be protected under laws.

Apart from these lsquo;principlesrsquo;, other standards or rules can also be designated as a common conceptual framework to make sure that all constitutional sections and provisions remain consistent and befitting the intention that it functions as a lsquo;permanentrsquo;, or at least long-term, version that would not need to be abolished again in the future.
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2007-05-11