This paper examines how modern Western democracies relate to the availability of external constitutional advisors, using the Venice Commission (VC) as a case study. Since the early 2000s, the VC has been able to provide guidance on constitutional questions to established democracies, in what should be seen as a transformation from its original raison d’être of supporting pro-democratic transitions in CEE. Little is known about this dimension of the VC’s mandate. To begin to rectify this gap, three fundamental questions are considered. 1. What arguments can be marshalled in favour of transnational advice for countries that traditionally do well in rule-of-law-rankings and can be said to have good domestic reservoirs of constitutional expertise? 2. How do established European democracies interact with the VC? 3. If support for and from established democracies can play an important role in boosting the VC's effectiveness, what can be done to harness such support?
This paper identifies a pattern of international influence on the written constitutions of three Pacific states – Tonga (1875), Samoa (1960) and Tuvalu (1986) – in which Indigenous polities borrowed the language and form of written constitutions to signal their independence and capacity for self-government to external actors. As a result, written constitutions deal only partially with continuing forms of public governance based on Indigenous custom. The dynamics of international influence have affected how courts in each state approach constitutional interpretation. In some cases, courts have used the history of constitution making to recognise and preserve a space for customary institutions and values, in others to exclude it. The dynamics of international influence, as traced in this paper, show why it might be important – and legitimate – to shed the presumption that the whole of the constitution is contained in the constitutional text.
In 1960 Ghana declared its independence under a new republican constitution. Six years later the military deposed the democratic government and suspended the constitution. Similar coups would overthrow elected governments in Uganda and Nigeria (as well as the very different case of Rhodesia), and threaten to do so elsewhere. In response to these coups, a new common law doctrine of necessity was adopted and applied by African courts to legitimise the new governments and their new constitutional orders. These decisions were part of a wider discourse across the Commonwealth of Nations on the jurisprudence of coups that proposed new answers to fundamental constitutional questions: who were the people? who represented the people? what made a government legitimate? and who decided? This paper argues that the answers to these questions would transform new and existing constitutions in the aftermath of coups or in anticipation of them.
The provision of constitutional legal advice by external advisers is an increasingly common feature of modern constitution-making processes, though it is not an entirely new phenomenon. This paper draws from the literature on constitutional transfers to build a typology of modes of constitutional advice-giving. In doing so, it explores the factors that push advisers towards adopting a particular mode: both internal (such as self-perception) and external (such as time and resource constraints).