Aconstituent assembly (also known as aconstitutional convention,constitutional congress, orconstitutional assembly) is a body assembled for the purpose of drafting or revising aconstitution. Members of a constituent assembly may be elected bypopular vote, drawn bysortition, appointed, or some combination of these methods.[1][2] Assemblies are typically considered distinct from a regularlegislature, although members of the legislature may compose a significant number or all of its members.[3] As the fundamental document constituting a state, a constitution cannot normally be modified or amended by the state's normal legislative procedures in some jurisdictions;[4] instead a constitutional convention or a constituent assembly, the rules for which are normally laid down in the constitution, must be set up. A constituent assembly is usually set up for its specific purpose, which it carries out in a relatively short time, after which the assembly is dissolved. A constituent assembly is a form ofrepresentative democracy.[5]
Unlike forms of constitution-making in which a constitution is unilaterally imposed by a sovereign lawmaker, the constituent assembly creates a constitution through "internally imposed" actions, in that members of the constituent assembly are themselves citizens, but not necessarily the political leaders, of the country for which they are creating a constitution.[6] As described by Columbia University Social Sciences ProfessorJon Elster:
"Constitutions arise in a number of different ways. At the non-democratic extreme of the spectrum, we may imagine a sovereign lawgiver laying down the constitution for all later generations. At the democratic extreme, we may imagine a constituent assembly elected byuniversal suffrage for the sole task of writing a new constitution. And there are all sorts of intermediate arrangements."[7]
Australia held four constitutional conventions, one each in 1891, 1897, 1973, and1998.
TheConstituent Assembly of Bangladesh was the first and, to date, the only constitution-making body ofBangladesh, convened in 1972 by the government ofSheikh Mujibur Rahman following the country's independence.[8] It comprised representatives elected in the national and provincial council elections ofPakistan held in 1970. As the assembly was formed with representatives elected under theLegal Framework Order, 1970, issued by Pakistan's then-military ruler and PresidentYahya Khan, several political parties and political leaders, includingMaulana Abdul Hamid Khan Bhashani,Badruddin Umar,A.S.M. Abdur Rab,Farhad Mazhar, and others, have labeled this assembly as illegitimate.[9][10][11] However, despite the controversies and opposition, Sheikh Mujib's uncompromising leadership enabled the Constituent Assembly to draft and enact theConstitution in less than a year. However, from the time of its drafting until today, the constitution has been often labelled as "fascist"[12] and criticized for fosteringautocracy[13] and failing to adequately safeguardhuman rights.
In the aftermath of2024 mass uprising, theinterim government of Bangladesh is mulling over convening a new constituent assembly to draft a new inclusive democratic constitution, ensuring the inviolability of human dignity.[14]
See also2024 Bangladesh constitutional crisis.
As of May 2021 Chile is the most recently elected constitutional assembly. The 155 members of this assembly wereelected between 15 and 16 May 2021. The assembly has gender parity (50% females and 50% males) and has 17 seats reserved for people belonging to indigenous peoples. The assembly is granted 12 months to draft a new constitution, which has to be ratified by referendum once written, withcompulsory voting.
Immediately after the1948 Costa Rican Civil War that overthrew theRafael Angel Calderón Government, the leaders of the victorious side called for theelection of a Constituent Assembly in the same year. The Assembly successfully drafted and approved the currentCosta Rican Constitution.
TheDanish Constituent Assembly (Danish:Den Grundlovgivende Rigsforsamling; lit.The Constitution giving Assembly of the Realm) of 1848 established theConstitution of Denmark in 1849 (Danish:Danmarks Riges Grundlov; lit.TheConstitutional Act of the Realm of Denmark) and formalized the transition fromabsolute monarchy toconstitutional monarchy. The assembly consisted of members of which 114 were directly elected in October 1848, 38 were appointed by the king and the rest were government ministers.[15] The constituent assembly met atChristiansborg Palace inCopenhagen and first met on 23 October 1848.[16] The assembly was overall split in three different groupings: theNational liberals, the Friends of Peasants, and theConservatives. A key topic for discussion was the political system, and the rules governing elections.[16][15] On 25 May 1849, the constituent assembly approved the new constitution, and on 5 June 1849 it was signed byKing Frederick VII. For this reason, it is also known as theJune constitution.[17] Today, 5 June is known asConstitution Day inDenmark.
TheEuropean Convention (2001) drafted theConstitution for Europe for approval by theEuropean Council and ratification by themember states. This constitution was abandoned after being rejected inFrench andDutch referendums, and was replaced by theTreaty of Lisbon in 2007.
During theFrench Revolution (from July 1789 to September 1791) aNational Constituent Assembly (Assemblée nationale constituante) was formed when representatives assembled at the only location available – a tennis court – and swore theTennis Court Oath on June 20, 1789, promising that they would not adjourn until they had drafted a new constitution for France.Louis XVI recognized the validity of the National Constituent Assembly on June 27, 1789.[18]
See also1848 French Constituent Assembly election.
Parlamentarischer Rat (Parliamentary Council) (1948) – Drafted theBasic Law of the Federal Republic for ratification by theLänder. This council was not recognized as legitimate by Soviet-occupiedEast Germany, which drafted its own constitution in 1949 and would not accept the Basic Law untilGerman reunification in 1990.
On 27 November 2010, Iceland held an election for aconstitutional assembly, with 522 people competing for 25 delegate seats. The assembly, in session for four months from early April until late July 2011, drafted a new constitution and passed it unanimously with 25 votes and no abstentions. On 20 October 2012 the parliament put the bill to a national referendum, in which 67% of the voters supported the bill. Further, 67% of the voters supported equal voting rights (one person, one vote) and 83% supported national ownership of natural resources, two key provisions of the bill. Parliament has failed to ratify the bill, however, inviting accusations that the political class is trying to thwart the will of the people by disrespecting the result of the 2012 constitutional referendum.
In September 1922 theThird Dáil enacted theIrish Free State Constitution while "sitting as a Constituent Assembly in this Provisional Parliament".[19] The Dáil had been electedin June 1922 as a provisional parliament to which theProvisional Government established in January 1922 wasresponsible. When the Free State Constitutioncame into force in December 1922, the Third Dáil continued asthe lower house of theFree State Oireachtas (parliament). Whether the Oireachtas had unlimited power to amend the Constituent Assembly's enactment became a matter of legal and political controversy in the 1930s.[20]
The8th Dáil, electedin 1933, finalised the draftConstitution of Ireland in 1937, although the Dáil was seldom described in this context as a "constituent assembly".Éamon de Valera, the instigator of the 1937 Constitution, stated, "The only way in which you can get a Constitution is to get the people themselves to enact it or get them to elect a Constituent Assembly to enact it".[21] In his view, "the people themselves" enacted the constitution when the Dáil's draft wasapproved by a plebiscite on 1 July 1937.
Other Irish constitutional conventions have met. The 2012–2014Constitutional Convention was a quasicitizens' assembly which proposed various changes to law; of those involvingamending the constitution, thethen government accepted six,[22] three of which were put to referendum, of which two passed.[24]
The Constituent Assembly ofIndia was elected to write theConstitution of India, and served as its firstParliament as an independent nation. It was set up as a result of negotiations between the leaders of theIndian independence movement and members of the BritishCabinet Mission. The constituent assembly was elected indirectly by the members of the Provincial legislative assembly, which existed under theBritish Raj. It first met on December 9, 1946, inDelhi. On August 15, 1947, India became an independent nation, and the Constituent Assembly started functioning as India's Parliament.Dr. B.R. Ambedkar drafted the Constitution of India in conjunction with the requisite deliberations and debates in the Constituent Assembly. The Assembly approved the Constitution on November 26, 1949 (celebrated asConstitution Day), and it took effect on January 26, 1950 — a day now commemorated asRepublic Day in India. Once the Constitution took effect, the Constituent Assembly became the Provisional Parliament of India.
The Constitutional Assembly of Indonesia was established to draw up a permanent constitution. Its membership was elected in November 1955, and it met for the first time in November 1956. After four sessions, it failed to agree on the fundamental basis for the state. It was dissolved in 1959, and the original constitution imposed by presidential decree.(OTP)
The Constituent Assembly of Italy was established in 1946 in the wake ofFascist Italy's defeat during World War II. It was elected with universal suffrage, simultaneously with areferendum about the adoption of Republic or the continuation of monarchy. Voters chose Republic, and the new assembly had the task to approve the new republic governments, as well as to write a new constitution. This was approved on 22 December 1947.
It was dissolved on 31 January 1948, to be replaced by the newParliament of Italy.
TheViceroyalty of New Spain sent deputies to theCortes of Cadiz, which enacted the1812 Constitution. By the time this Constitution was enacted, an insurgencyfighting for independence from Spain was already established.
The first Constituent Congress of independent Mexico, known as theCongress of Anahuac, was first gathered inChilpancingo whilst the war of independence was still ongoing. During the opening of Congress,José María Morelos outlined its program in a document calledSentimientos de la Nación (Feelings of the Nation), which was the first antecedent of the various Constitutions of Mexico. Being persecuted byroyalist troops, the Congress fled Chilpancingo and gathered inApatzingán.
On October 22, 1814, the Congress enacted the Constitutional Decree for the Liberty of Mexican America (Decreto Constitucional para la Libertad de la América Mexicana), known as theConstitution of Apatzingán. The 1814 Constitution entered into force in the territories dominated by the insurgents, but as the war continued and the first insurgent leaders (like Morelos) were defeated, it was largely forgotten.
After independence was consummated on September 27, 1821, and based on thePlan de Iguala and theTreaty of Córdoba, theProvisional Governing Junta was stablished. The Junta proclaimed theAct of Independence of the Mexican Empire and acted as ade facto legislative assembly until February 24, 1822, when the Constituent Congress was gathered. On May 19, 1822, the Constituent Congress proclaimedAgustín de Iturbide as Emperor. The relations between Emperor and Congress were always problematic, a situation that led to the dissolution of Congress by Iturbide on October 31, 1822, without a formal Constitution being enacted.
After the dissolution of Congress, Iturbide created theNational Instituent Junta, which enacted theProvisional Political Bylaws of the Mexican Empire on December 18, 1822. The dissolution of Congress had resulted in an armed revolution under thePlan de Casa Mata, which called for the establishment of a Federal Republic and for the restoration of the Constituent Congress. Iturbide was forced to abdicate and he reinstalled the Constituent Congress.
The Congress then created a provisional government, called theTriumvirate, and enacted the Constituent Act of the Mexican Federation, by which the former Provinces of Mexico were transformed into free and sovereign States. After this, a Constituent Congress was formed with the participation of the States and it enacted the1824 Constitution.
Many disputes aroused between federalists and centralists, which resulted in political instability and in 1836 theSiete Leyes (Seven Laws) were enacted. TheSiete Leyes dissolved the federation and created a unitary republic, but that ended in 1846 when the Constitutive and Reforms Act was enacted and the 1824 Constitution, and thus the federation, was restored.
On October 16, 1854, PresidentJuan Álvarez, under thePlan de Ayutla, decreed the formation of another Constituent Congress, which met in 1856. During the presidency ofIgnacio Comonfort, the Constituent Congress enacted the1857 Constitution, which was liberal in character. The Constitution was not well received by the church and Mexican conservatives, and thePlan de Tacubaya called for its derogation. This events led to theReform War, which the liberals won, then restoring the 1857 Constitution and adding to it theReform Laws.
After thePorfiriato, and whilst theMexican Revolution was still being fought, PresidentVenustiano Carranza formed a Constituent Congress, which met inQuerétaro and enacted the still-currentPolitical Constitution of the United Mexican States of 1917.
Nepal had twoConstituent assemblies, the last one being elected after itspredecessor failed to deliver a constitution, despite multiple extensions. It also served as the country's parliament.Finally Nepal had made constitution with 89% majority. Nepal has adoptedfederalism since.
The Great Sejm (also known asFour-Year Sejm) was held between 1788 and 1792. Its principal aim became to restore sovereignty to, and reform, thefederativePolish-Lithuanian Commonwealth politically and economically. These attempts were made by writingConstitution of 3 May 1791 that was designed to redress long-standing political defects of the Commonwealth and its system ofGolden Liberties. The constitution lasted for merely a year because of thePolish-Russian War of 1792 and theThird Partition of Poland.
The Philippines has had several conventions:
TheRussian Constituent Assembly was established inRussia in the wake of theOctober Revolution of 1917 to form a new constitution after the overthrow of theRussian Provisional Government.
The Sri Lankan Parliament approved the creation of aSri Lanka Constitutional Assembly on March 9, 2016, proposed byPrime MinisterRanil Wickramasinghe. The assembly will draft a new constitution forSri Lanka.[25]
Constituent Assembly of Turkey was established in 1961 after the1960 Turkish coup d'état to prepare a democraticconstitution. The constitution was prepared and approved by the voters in a referendum of 1961.
TheU.S. Constitutional Convention drafted the still-currentUnited States Constitution in 1787. Its delegates were appointed by the states, not directly elected, and not all states sent delegates; moreover, the convention was originally charged with drafting amendments to theArticles of Confederation rather than a new constitution.[26]
The US Constitution contains no provision for its own replacement (and because of the presence ofentrenched clauses it cannot be revoked through an amendment).Article V of the Constitution does permit Congress to appoint anational constitutional convention to propose amendments but it has never done so. While Congress has the option to submit both its own proposals for amendments and those of a national convention tostate conventions rather than the state legislatures for ratification; this process has been used only once (for theTwenty-first Amendment).
A long tradition in the use of constituent assemblies exists at the state level ofConstitutionalism. In fact, constituent assemblies met in the states before the formation of the Federal Constitution in 1787 as well as after its ratification. Since 1776 nearly 150 state constitutional conventions have met to draft or revise state constitutions.[27]
These early state constitutional conventions frequently did not use procedural steps like popular ratification that became commonplace in the mid-19th century. Yet they were considered to be constituent assemblies that exercised their authority as that of the people.[28] AsAmerican Sovereigns: The People and America's Constitutional Tradition Before the Civil War by Christian G. Fritz notes:.
"A legitimate constitution depended on whether the sovereign people authorized it, not whether a particular procedure was used or whether revolutionary conventions were free of other responsibilities, such as passing ordinary legislation. It was the people as the sovereign who authorized drafting those first [state] constitutions that gave them their legitimacy, not whether they used procedures that matched what was later understood to be necessary to create fundamental law."[29]
American state constituent assemblies in the 19th and 20th centuries reflected many qualities of a citizen's movement.[30] From the start of state American constitution-making, delegates to constitutional conventions studied earlier state models of constitutions. They often self-consciously "borrow[ed]" constitutional text and provisions from other states. They often used in their drafting and debates compact and pocket-sized compilations of all the existing American constitutions, so that the constituent's assembly could draw upon the latest in constitutional design.[31] The powers of these state constituent assemblies were also highly contested, with some claiming that they had unlimited legal power and others claiming that they must operate within the pre-existing legal landscape.[32] In the end, a common law of constituent power emerged which held that elected constituent assemblies had limited powers.[32]
SeveralU.S. states have held multiple conventions over the years to change their particularstate's constitutions.
All 50 states have had at least one Constitutional Convention, numbering over 233. 11 were illegal and defeated by arms (Confederacy andDorr's Rebellion). 12 were illegal and won through arms (Revolutionary War,Republic of Texas, andVermont Republic). 37 were made in accordance with a Federal enabling law.[38]
State legislatures put restrictions on conventions that were not followed in these cases.[39]
A few countries do not have anentrenched constitution, which can thus be amended by normal legislative procedures; theUnited Kingdom,New Zealand andIsrael are examples. In these countries there is no need to call constituent assemblies, and no provision to do so, as the legislature can effectively modify the constitution.
Although it lacks a written constitution, the United Kingdom has had several conventions at the subnational level including:
The constitution of New Zealand consists of a collection of statutes (Acts of Parliament), Treaties, Orders-in-Council, Letters Patent, decisions of the Courts and unwritten constitutional conventions. Because it is not supreme law, the constitution is comparatively easy to reform, requiring only a majority of Members of Parliament to amend it.
The constitutional law of Israel is determined by theKnesset which, since 1949, serves as the country's ongoing constituent assembly. The Knesset has the power to createBasic Laws of Israel, laws which are entrenched legislation and will become part of a "future" constitution of Israel, as well as "regular" statutory legislation.
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