|
Caitlin Goss
In a durable constitution, the opponents of a constitutional provision bear the
burden of amendment or repeal . . . In contrast . . . the proponents of a tempo-
rary constitution or constitutional provision bear the burden of reenacting it
following its sunset. This change in the default rule, and the attendant shift
in the burden, generates both benefits and costs for constitutionalism that
remain underexplored in the literature.
44
On this analysis, the burden of re-enactment of a provision falls on those who
seek to re-enact unless, as Varol acknowledges, there is no clear sunset clause
on the temporary text or provision.
45
In that case, a temporary text may lapse,
or ‘fail’ into permanence. However, I submit that a given provision in a tem-
porary text often sets up a powerful default position or assumption about what
kind of provision will be enacted on that topic in the permanent text, even if
the default burden falls on its proponents to re-enact it.
I do not seek to argue that interim constitutions predetermine all or even
most of the controversial issues in constitutional transitions; many key deci-
sions will be made during the interim era. However, I believe it is still worth-
while identifying the ways in which features of the interim constitution which
are written, but whose authority and permanency is unwritten, endure into the
post-interim era.
First, in addition to content restraints (such as the South African Constitutional
Principles, discussed in Section
6.2.2
) that textually bind successor permanent
constitutions, procedural provisions can increase the odds that aspects of the
interim constitution will be replicated in the final constitution.
46
Interestingly,
while a high degree of procedural control over the drafting process is often
associated with high levels of similarity with the final text (as in South Africa),
the converse is sometimes also true. The Small Constitution of Poland was
not a singular document above all others and did not purport to control the
text of its successor. The procedure ultimately adopted in subsequent legisla-
tion allowed for a multiplicity of constitutional drafts and drafting processes.
47
However, this very different approach created a result similar to that in South
Africa. Multiple drafts were tabled between 1992 and 1997 and the ensuing
confusion and proliferation of constitutional approaches led to a coalescing
around a document on substantially similar terms as the interim text. Various
individual provisions may be identified as being identical or broadly similar to
44
Ozan O. Varol, ‘Temporary Constitutions’ (2014) 102 California Law Review 409, 417–18.
45
Ibid.
, 419.
46
Jackson has referred to these as a ‘form of partial, long-term entrenchment’: Jackson, Supra
note 2, 1284.
47
Constitutional Act of 23rd April 1992, on the Procedure for Preparing and Enacting a Constitu-
tion for the Republic of Poland Dziennik Ustaw Nr 61 Poz 251, note 38.
Interim Constitutions and the Invisible Constitution
179
the Small Constitution: many structural elements were preserved,
48
the new
procedure adopted in the Small Constitution by which the Sejm can dissolve
itself by a vote with a two-thirds majority was preserved
49
and so forth.
50
Second, interim constitutions may influence permanent constitutions due
to the political difficulty of renegotiating hard-won agreements made in pre-
liminary talks, even when nothing in the text of the interim document compels
drafters to follow it. In South Africa, the interim or ‘founding’ Bill of Rights
‘remained influential even after the coming into force of the final constitution’;
many provisions were retained and even where provisions were altered or aban-
doned the interim constitution was the starting point for all discussion.
51
Spitz
and Chaskalson comment that Etienne Mureinik was right, when he
advised [the Democratic Party] to aim to get as much as possible into the
Bill of Rights at the first stage, predicting that it would be difficult for the
Constitutional Assembly to remove rights and freedoms that had appeared
in the Interim Constitution. . . The enduring significance of the interim Bill
of Rights . . . was ultimately formalized by Constitutional Principle II, which
required the final Bill of Rights to be drafted after due consideration of the
interim document.
52
Third, institutions created in the interim era or under the interim con-
stitution often persist after the permanent constitution has been adopted,
even though it is not constitutionally required. This effect may be
described as the ‘constitutional laboratory’. One such example is from
the Constitution of the Transition of the DRC
53
which established the
Electoral Independent Commission (EIC), an institution that was main-
tained in the final constitution.
54
André Mbata B Mangu observes that
the EIC played a crucial role in bringing about multiparty elections after
48
Varol, Supra note 44, 338, citing Mark Brzezinski, The Struggle for Constitutionalism in Poland
(New York: St Martin’s Press, 1998).
49
Varol, Supra note 44, 417.
50
Lech Garlicki and Zofia Garlicka, ‘Constitution Making, Peace Building and National Reconcilia-
tion: The Experience of Poland’, in Laurel E. Miller (ed.) Framing the State in Times of Transition
(Washington, DC: United States Institute of Peace, 2010), 402. See also Pawel Spiewak, ‘The Battle
for a Constitution’ (1997) 6 Eastern European Constitutional Review 89, 89.
51
Richard Spitz and Matthew Chaskalson, The Politics of Transition: A Hidden History of South
Do'stlaringiz bilan baham: | 
