Constitution Making in Asia

The chapter presents a summary of main findings and discusses their implications. The book’s main finding is that extreme power asymmetry on behalf of the Incumbent creates the conditions for institutional change that empowers mostly the executive branch. A large power differential between the Incumbent and the Opposition encourages the Incumbent to seize the advantage to initiate bold, self-serving institutional change, sometimes even a constitutional overhaul. If the latter gets underway, and power asymmetry stays pro-Incumbent, chances are the new constitution will expand the powers of the Executive branch. This outcome, in turn, can spread discontent across Opposition forces and sometimes encourage the Incumbent to govern more unilaterally. This presents a potential threat to democracy. The chapter concludes by discussing the implications of this finding for different literatures: democratization, constitution-making, presidential powers, and government-Opposition relations.

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Constituent Power

10.1093/oso/9780198768890.003.0011 ◽

2018 ◽

Author(s):

Nimer Sultany

Keyword(s):

Political Order ◽

Political Agency ◽

Constituent Power ◽

Constitution Making ◽

The Revolution

This chapter argues that scholarly debates about constituent power presuppose a distinction between constituent power and constitutional form that is neither theoretically compelling nor practically illuminating. In contrast to constitutionalists, it argues that constituent power is inexhaustible, the revolution not being reducible to an event and thus constitution-making fails to terminate constituent power. In contrast to populists, it argues that constituent power does not operate in a constitutional vacuum because the judiciary imposes constitutional continuity through unwritten constitutional principles. The judiciary also polices will formation during revolutionary upheaval, as reflected in Egyptian and Tunisian judicial rulings and legal debates relating to the formation and functioning of constituent assemblies. Finally, the overlap between constitutive and legislative functions in the practice of constituent assemblies, and the deflation of the constituent power’s political agency are inconsistent with theories that present constituent power as an unbounded political agency that establishes a new political order.

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Peace processes and constitution-making: An introduction

International Journal of Constitutional Law ◽

10.1093/icon/moaa091 ◽

2021 ◽

Author(s):

Melissa Crouch

Keyword(s):

Peace Processes ◽

Constitution Making

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The Rejection of Constitutional Incrementalism in Nepal's Federalisation

Federal Law Review ◽

10.1177/0067205x1804600403 ◽

2018 ◽

Vol 46 (4) ◽

pp. 521-540

Author(s):

Mara Malagodi

Keyword(s):

Eighteenth Century ◽

Collective Identity ◽

Constitutional Amendment ◽

Divided Societies ◽

Contentious Issue ◽

Post Conflict ◽

Late Eighteenth Century ◽

Institutional Choices ◽

The Relationship ◽

Constitution Making

The relationship between federalism and identity was the single most contentious issue in the drafting of Nepal's 2015 Constitution, and remains an embattled feature of the country's post-conflict constitutional settlement. This article explains why ‘constitutional incrementalism'—the innovative constitution-making strategy for deeply divided societies theorised by Hanna Lerner—was ultimately (and wisely) rejected in Nepal's federalisation process. Historically a unitary state since its creation in the late eighteenth century, Nepal committed itself to federal restructuring in 2007, but profound disagreements endured over the set of institutional choices concerning the features of Nepal's federal arrangements throughout the constitution-making process (2008–15). Constitutional incrementalism with its emphasis on deferral, ambiguity and contradiction was thought of in some quarters as a pragmatic and instrumental way out of Nepal's political impasse. In the end, the 2015 Constitution expressly named the provinces (even if by just using numbers) and demarcated their boundaries already at the time of its promulgation. Any changes to this framework can only take place by way of constitutional amendment. This article explains why the incrementalist approach was rejected in Nepal's federalisation process, and reflects on the conditions under which constitutional incrementalism may succeed in societies that present profound disagreements over the collective identity of the polity.

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