Constitutional identity and “procedural sameness”

The “procedural sameness” of the constitutional subject is one of the contents of the identity of the constitution. It is ensured by an inclusive constitution-making process, tiered amendment mechanism and in the Member States of the EU, the entrenched-like decision-making processes in European matters. By exploring theses mechanism in the Global North and Global South, the paper seeks to answer the following research questions. Is the inclusion of “constitutional identity”, such as some of the concepts of the Global South, like multiculturalism, multiethnicity, new notions (Pachamama, Sumak Kawsay, historical constitution, communitarianism, indigenous laws, etc.) to the constitutions originally emerged in the society, as it was in the case of some European constitutions? Or, instead, is it the constitutions, significantly influenced by autocratic and populist political elite, which imposed them. How are these values liable to change? What kind of constitutionalism can they facilitate?

Constitutional identity in the European Union

In the supranational legal order of the European Union it is of growing importance to keep intact the member States “constitutional identities”. This is clearly expressed, as a basic principle, by article 4 EU Treaty. The European Union as a community of States needs to respect the identities of its members. The concept of a “Union” requires as a basic condition that all the members of the Union remain intact in their statehood identity, and this means above all intact in the nucleus of their legal orders, namely in the basic elements of their Constitutions. EU membership (i.a. Poland) has as a consequence an adequate limitation of sovereignty, the integration of the national and supranational legal orders and the primacy of supranational law.

The nation, delegation and constitutional change in Poland

The democratic constitution should be the embodiment of the sovereignty of the nation. In such a constitution the nation autonomously establishes the tenets and rules of its functioning. The concept of the nation forming the basis of the constitution affects its shape and determines its interpretation. Having analysed the canonical works considering philosophy and theory of democracy (Kant, Rousseau, Kelsen, Schmitt, Rawls, Habermas), one may develop two fundamental (ideal in Weber’s perception) kinds of the nation: homogenous (emphasizes the basic unity of citizens) and heterogeneous (underlines pluralism and diversity of citizens’ goals). Adoption of ideal types for the description of current changes in Poland enables the presentation of the gradual modification of the nation concept. It changes the interpretation of the constitution and affects the purview of the law-makers’ legislative delegation. Eventually, such a modification may lead to an informal change of the constitution.

Transformative nature of Kenya’s constitution

The current constitution of Kenya was promulgated in 2010. It could happen only after a long process, full of dramatic twists. But at its origin was a clamour of Kenyans for freedom, which ushered in liberation from colonialism and the fall of a one-party rule in 1990’s. The constitution has its distinctive features, but its identity is only emerging amidst concerns about its implementation. What makes the identity of the Kenyan constitution is its purpose: to transform the government and overcome the legacies of colonialism and dictatorship. As for the constitutional identity, the lessons being learned: the inclusive constitution-making process, rather than a deal negotiated with colonisers, robust guarantees of judicial independence to do away with the tradition of the subdued judiciary, separation of powers to check on the imperial presidency and devolved government accommodating ethnic diversity, rather than exploiting ethnic differences.

The constitutional conceptualization of non-status and off-reserve indigenous populations in Canada

The Canadian constitutional text speaks to Canada’s Indigenous populations in different places including in the federal power provisions of the Constitution Act, 1867, in the Canadian Charter of Rights and Freedoms and the Aboriginal Rights section of the Constitution Act, 1982. Each of these is under-inclusive. This paper draws on collaborative research and policy development work with Indigenous political organizations representing off-reserve and non-status Indigenous populations. The paper reports that since the 1970s, Indigenous self-governance organizations outside of the scope of the Indian Act have participated in settler constitutional law-making as well as Indigenous law-making addressing identity and recognition. In doing so, these organizations are constantly navigating the interface between settler law and Indigenous self-governance and have developed sophisticated and hyper-vigilant approaches to this ongoing challenge.