Contents
1.1. Role of the constitution. 1
1.2. Increase in Constitution. 1
2.2. Timetable for the Process. 2
2.3. Structure and Representation. 3
2.5. Technical Assistance and Adoption. 4
2.6. Implementation of Constitution. 4
3.1. Changing the process of Amending the Constitution. 4
3.2. Revision of the First Amendment 4
3.3. Clarify the Eighth Amendment: Ban on “Cruel and Unusual Punishment”. 4
Term Project
1. Introduction
1.1. Role of the constitution
The constitution is the supreme law that governs a country. Most countries in the world are managed by the constitution. Prior to making a constitution one should be able to understand the role of the constitution. The role of the constitution is vital to the making procedure of it. The procedure is not basically for creating it but for the creation of the setting, advancement of knowledge and enabling the public involvement that are favorable for an excellent constitution and the prospects of applying it.
This is a report that is meant to offer advice on how to make a new constitution. It will be composed of the vital steps and parties that ought to be considered when making the constitution.
1.2. Increase in Constitution
There has been a considerable increase in the anxiety about constitutions and the process of making it in the past forty years. The world order has transformed to a great extent; the final removal of colonialism, with the rise in new countries, the termination of military rule, the fall of communism and activities to terminate civil pressure more so in states with several ethnic groups, have all led to the creation of a constitution (Brandt 13). The wide range of instances where constitutions have been made, presenting the basic fact that a constitution varies greatly: nation building as new nations come about, the consolidation of democracy as the military go to back to the barracks or presidents are removed, the liberalization and formation of private markets with the termination of communism, the installation of peace in the societies to put a stop to fights. These objectives are reliant on the orientation of the constitution and similarly the procedure that it is created.
The constitutions are reliant on the national settings in a vital way. The start and comprehension of and hence the respect for, constitutions contrast, with regard to the past as well as the reliance and regards held for the law as a vital element in the management of a society and a nation.
2. Creating a New Constitution
There are varied ways on how to handle the constitution making process:
2.1. Legal Framework
A legal basis like peace consensus or Security Council agreement that offers the legal benchmark, stating the principles for the creation, dictates a number of post-pressure procedures. The legal aspect on the other hand has varied scope and issues from one issue to another with regard to the case in point and the constitution review.
There process does not apply a ‘one fits all’ aspect. At times like in Cambodia it is vital to be in possession of a framework that is detailed; that is composed of principles placed in the constitution (Brandt 2). On the other hand, the model ought to be more skeletal, like the one in Afghanistan so as to make it possible to react to the varied difficulties in the political aspect. However, while taking into consideration the special instance of the case it will look into the level of specificity and the composition of the legal basis. These are some of the legal ground:
- Important constitutional principles or functional provisions so to monitor the procedure and to be applied in the ultimate constitution.
- The directive and work strategy for the constitutional structures.
- The timeframe for the procedure composing a schedule of the time the duties ought to be applied.
- Declaration that the elements taking part in the constitution making process will be autonomous in their work.
- The policies and methods to be applied will be transparent in setting up the organs and choose delegate. Among others.
The legal aspect ought to known well by the public so as to foster transparency and acquire backing of the public for the mapping of the process. This will be useful in the helping the citizens be clear on the procedure, goals of the review process and the duties.
2.2. Timetable for the Process
The legal aspect looks out for the timetable of the constitution making process. The political basis of the domestic and global have always affected the timetable. Though, it is widely allowed that with the timetables can apply some form of vital pressure on the elements mandate to create the constitution and the global communities so as to push the process ahead, objectives like the creation of the constitution making and elections need a genuine procedure that should not be pushed to acquire the pre-set dates.
Deliberative procedures that advance reconciliation, issue-based resolution and agreement creation goes for long periods. For instance, chances that would enable the procedure become genuine in taking part were not taken into consideration more so in East Timor and Cambodia due to strict timelines.
2.3. Structure and Representation
An autonomous commission or technical team is important and most commonly applied in the preparation of the constitution since it is detached from the political issues and may make it possible for a higher form of variety of opinions, advanced chances for agreement creation, application of experts and the bigger public involvement.
A chose body acquires and discusses the draft and since it is chosen by the citizens, it may add its legality to the ultimate constitution (Brandt 3). A chosen body that looks into the typical and acceptable on the ultimate constitution may make sure that the political professionals are of the feeling of ownership and application of the constitution.
In the instance of East Timor, which is accredited with a high form of threats that elections will bring about an acquisition body that may show the opinions of a party, unique steps ought to be applied so as to advance an all-inclusive body. For instance, the necessities can be formed for the representation of the identity bodies, women, civil society agents or those with precise professional expertise (as was applied in Afghanistan). The method of appointment of the delegates ought to be crystal clear.
Taking to fact that the constituent get-togethers have a share of the democratic legality, in an instances compose of a strict time aspects being considered. Moreover, the first issues after elections are bound to be are highly referential to the initial pressures or issues, with voting being based on specific leaders, ethically-based among others. The political groupings are not strong and do not in most cases bring about a well looked into constitutional basis. Hence elections tend not to acquire an adequate channel that would be applied to express the opinions of the public’s constitutional desires. These desires have to notify the options on who ought to manage it for a precise short period and the benchmark for the country. It therefore brings about a firm democratic electoral aspect that is reliant on the representation in the election which is not enough to acquire the people’s desires in post-issue based constitution creation process.
2.4. Direct Involvement
The level that a process may acquire direct involvement (basically through civic training and discussion) will rely on the instance (Democracy Reporting International 4). Political professionals will by requirement acquire a vital position in the choices acquired on how to model the new country (this is vital for peace creation and future use of the constitution) though where it is required, the task of the UN ought to be to widen the political aspect for the ultimate constitution not just show the opinions of the parties in conflict with power.
There lacks means on undertaking participatory procedure, every post-election instance has a special challenges and goals for the constitutional making process (Democracy Reporting International 3).
2.5. Technical Assistance and Adoption
There is need to have expertise while making the constitution on national politics, reforms, electoral process, financial plans, procurement, logistics, training and comparative options among others. The national authors are allowed in the technical groups if applied in a manner that looks after the task in promoting and controlling the procedure. If the expertise is needed, the UN ought to offer it with outside resources due to limited capacities based in the UN. The acquisition of the constitution ought to advance agreement. This agreement is with regard to the adopting group.
2.6. Implementation of Constitution
A number of the constitution are basically on paper and are not applied. For instance, a number of Cambodia’s provisions after a decade have not been applied (Brandt 5). The UN ought to offer advice on the provisions, methods and transitional organizations that are vital in applying the post-adoption as well as placing dates for applying that varied duties and reform. Moreover, the help ought not to terminate with the acquisition of the constitution.
3. US Constitution
The US constitution has the oldest democracy in the world backed with a good constitution. There are however some things that I would recommend for changes to made.
3.1. Changing the process of Amending the Constitution
Article V offers two ways on how to amend the constitution: (a). precise changes with the acquisition of two-thirds of ever chamber in addition to ratification of three quarters of the nation. (b). a constitutional convention using the same method. The latter method has not been applied, it state that the Congress has ability on every amendment and hence any one rejected could be acquired. Recommendation is that there are changes on the need of a convention. The better method would be to have the parliament consent to propose an amendment. While a choice to have an operative choice to the congress change control would be a great advancement.
3.2. Revision of the First Amendment
It states that the constitution should form no law with regard to the formation of religion or hindering free exercise. This tends to hinder the aspect of freedom of speech or media. There ought to be changes that upholding religious beliefs, there would be equal rights to all as well as the press.
3.3. Clarify the Eighth Amendment: Ban on “Cruel and Unusual Punishment”
The eighth amendment discourages cruel punishment. This ought to be expounded on: the method of high form of incarceration are not allowed, it ought to stop mandatory sentences so that every individual has the benefit of personal focus by the court and desire the parliament form a list stating that they attribute empirical indication on the laws probable influence.
Work Cited
Brandt, M. Constitutional Assistance in Post-Conflict Countries. Print, 2005. Acquired from: http://www.unrol.org pp. 2-5.
Democracy Reporting International. Lessons Learned From Constitutional-Making: Processes with Broad Based Public Participation. Briefing Paper No. 20, print 2005. Acquired from: http://www.demcracy-reportign.org . pp. 3-6.
Brandt M., et al. Constitution-making and Reform Options for the Process, print, 2011.Switzerland: interpeace, pp. 13.
