Constitutional Review Commission

Constitutional Review Commission
Name	Constitutional Review Commission
Formation	varies by country
Type	commission
Purpose	constitutional review and reform
Headquarters	varies
Languages	varies
Leader title	Chair
Website	varies

Constitutional Review Commission

A Constitutional Review Commission is an institutional body established to examine, evaluate, and recommend changes to a national constitution. Commissions of this type have operated in diverse contexts including post-conflict transitions, constitutional amendments, and routine constitutional modernization, and have interacted with institutions such as the United Nations, African Union, European Union, Commonwealth of Nations, and national judiciaries like the Supreme Court of the United States, the Constitutional Court of South Africa, and the Court of Cassation (France). Their work often engages political actors including heads of state such as Nelson Mandela, Winston Churchill, Charles de Gaulle, and Mahatma Gandhi, as well as international figures like Kofi Annan, Ban Ki-moon, and William Hague.

Background and Purpose

Commissions have arisen in contexts from the Meiji Restoration through the aftermath of the World War II peace settlements to contemporary post-conflict reconstruction following the Rwandan genocide, the Yugoslav Wars, and the Syrian civil war. Typical purposes include reconciling competing claims represented by parties such as African National Congress, FRELIMO, National Congress Party (Sudan), and Shining Path, protecting rights articulated in instruments like the Universal Declaration of Human Rights, the European Convention on Human Rights, and the African Charter on Human and Peoples' Rights, and aligning domestic law with treaties such as the International Covenant on Civil and Political Rights and the Geneva Conventions. Commissions also serve to resolve constitutional crises exemplified by events like the 1973 Chilean coup d'état, the 1992 Haitian coup d'état, and the 2004 Haitian coup d'état.

Mandate and Legal Authority

Mandates derive from foundational acts including enabling statutes, referendums like the 1992 South African referendum, transitional agreements such as the Dayton Agreement, and constitutional provisions like those of the Basic Law for the Federal Republic of Germany or the Constitution of Japan. Legal authority may be reinforced by international guarantees from entities like the International Criminal Court, and oversight from bodies including the International Court of Justice and regional mechanisms such as the Inter-American Commission on Human Rights. Mandates specify scope—amendment procedures similar to those in the Constitution of India, entrenched provisions as in the United Kingdom Constitutional Reform Act 2005, or wholesale drafting reminiscent of the Constitution of South Africa (1996).

Composition and Appointment

Membership models range from expert panels comprising jurists like Rosalyn Higgins, Aharon Barak, and Laurent Fabius to mixed commissions including political appointees from parties such as Democratic Alliance (South Africa), civil society figures from organizations like Amnesty International, Human Rights Watch, and religious leaders such as representatives of the Vatican or Al-Azhar University. Appointment mechanisms involve executives like presidents (e.g., Nelson Mandela), parliaments such as the Knesset, or independent selection panels modeled on practices from the Constitutional Convention (Ireland), the Federal Convention (Germany), and the United States Constitutional Convention. Quotas and representation often reflect demographic claims from groups like the Kurds, Tigrayans, Basques, and Catalans.

Powers and Functions

Typical powers include proposing amendments comparable to procedures in the Constitution of Canada and drafting new texts akin to the Constitution of Kenya (2010), conducting public consultations modeled on processes used by the Law Commission (England and Wales), and recommending institutional reforms affecting bodies like the Parliament of the United Kingdom, the Bundestag, and the Storting. Functions extend to advising courts such as the Supreme Court of India, monitoring compliance with international obligations like those under the World Trade Organization agreements, and designing mechanisms for transitional justice similar to the Truth and Reconciliation Commission (South Africa) or the International Criminal Tribunal for the former Yugoslavia.

Procedures and Methods

Commissions employ comparative constitutional analysis referencing documents including the United States Constitution, the Magna Carta, the Napoleonic Code, and constitutions from jurisdictions such as Brazil, Germany, Japan, and South Africa. Methods include empirical research using census data from agencies like the United States Census Bureau and Eurostat, stakeholder hearings with NGOs including Transparency International and Doctors Without Borders, and referendum planning informed by precedents like the 1995 Quebec referendum and the 2016 United Kingdom European Union membership referendum. Drafting techniques draw on constitutional law scholarship from academics such as A.V. Dicey, Bruce Ackerman, and Cass Sunstein.

Key Reports and Recommendations

Notable outputs have shaped national orders: reports that led to the Constitution of South Africa (1996), the Constitution of Kenya (2010), constitutional law reforms after the Good Friday Agreement, and recommendations influencing amendments in the Constitution of Ireland and the Basic Law of Hong Kong. Commissions have recommended institutional changes like proportional representation schemes used in New Zealand and the Weimar Republic, devolution models reflected in the Scotland Act 1998, and rights protections akin to the Charter of Fundamental Rights of the European Union.

Controversies and Criticism

Critiques focus on legitimacy concerns highlighted in debates over commissions in contexts like Iraq, Afghanistan, and Haiti, allegations of politicization tied to parties such as Fatah and Hamas, disputes over minority protections involving groups like the Roma and Uyghurs, and tensions with courts exemplified by clashes between commissions and the Constitutional Court of Colombia. Academic critiques reference scholars including Jeremy Waldron and Sally Engle Merry on questions of participatory legitimacy, while civil society responses have been organized by networks like Open Society Foundations and International IDEA.

Category:Constitutional law