A good process must balance the interests of different groups and communities. Sometimes the interests that dominate are those of the powerful, the urban population, or warring factions in conflict or postconflict situations. Frequently it is considered expedient to restrict public participation in order to ensure that interests critical to a settlement are privileged. By contrast, there are cases in which deliberate attempts are made to bring in groups that have been marginalized by political and economic forces. Indeed, the trend is toward the wide participation of the public, as a manifestation of its “sovereignty,” to secure legitimacy, and—most important— to find out the expectations and wishes of the ordinary people. Today’s process is likely to involve political parties, religious groups, ethnic communities, professionals, business organizations, trade unions, women, the disabled, diasporas, regions, and parts of the international community. There are many forms of public participation, such as representation in the constituent assembly, acquiring a knowledge of civics, making recommendations to the assembly, lobbying, commenting on the draft constitution, and possibly voting in a referendum, in some cases at various points in the process.
Public participation may run throughout the process, though the forms may change, as may the intensity of popular engagement. The sequence of the forms of public participation is an important element in designing the process: determining the appropriate time for public debates and input from the general public, specialist groups, and contributions from experts, particularly constitutional experts; the time for negotiations; the time for drafting; and the time for enactment. At each of these stages different forms of public participation may be relevant.
It is important to disaggregate the forms of public participation, since such participation is now understood to be relevant to most aspects of constitution-making. Many critical elements of public participation are discussed in part 2.2.2; not all forms of participation may have an impact on what gets into the constitution. Indeed, the most public and intense forms of participation, such as public hearings throughout the country, may have a smaller impact on the content of the constitution than a quiet conversation between the government leader and a principal Western ambassador. So in designing the process, we should pay special attention to how much the form of public participation is likely to influence the outcome—and here the rules for making decisions on the content and for the enactment of the constitution are critical. (See part 2.1.4.)
Usually the most important actors are political parties, except in a conflict or postconflict situation, in which the armed factions may have greater, if temporary, dominance. Political parties are likely to promote greater public participation than militias—but how much greater will depend on the democratic and participatory nature of the parties themselves. In both South Africa and Nepal, political parties dominated the negotiations for reform and the process for making the constitution. But the former process was fairly participatory, and the latter much less so, for in Nepal each of the parties was dominated by one or two top leaders.
The increase in the number of groups participating in the processes has complicated them. The presence of many groups, with their different and often conflicting agendas, puts a premium on the negotiating skills of those entrusted with the management of the constitution-making process. There is real risk that instead of the process leading to a national consensus, it will sharpen differences and render impossible the adoption of a new constitution.
Public participation can set in motion competition. This is most evident in the competition between the people and the politicians, but also in that between men and women, traditionalists and “modernizers,” and the like. To some extent competition is regulated by the rules for decision-making, especially with regard to which group is given the last say. (For example, if the final decision is to be made by the legislature, the earnest engagement of civil society and the development of a draft by a constitutional commission can come to naught if the legislature, driven by totally different considerations, vetoes it or amends it drastically.)
Therefore, while public participation is desirable, it comes with several dangers. It can degenerate into deception, promising people that their voices will be heard and then either twisting what they have said or just ignoring them. Neither inspires confidence in politicians, who are generally the ones responsible for such tricks. A second danger is that the role of experts may be minimized, or even denigrated, by the populism of participation. This may lead to an incoherent document. There is some evidence that public participation can lead to conservative, even intolerant, views when it comes to “moral” questions such as capital punishment, homosexuality, same-sex marriage, and abortion. Another danger is that social and ethnic divisions may become sharper as different groups fight for their interests. This leads either to conflict or to unwise or even unworkable compromises; both cases deny the objectives of “deliberative democracy” and of rational decision-making.
Public participation may not be restricted to domestic actors. In many conflict or postconflict situations, the international community (in different forms) may be an important actor in both planning and executing the process. Some parts of this public participation may be mandated by treaty or law, but a great deal of it may be informal or opaque, and sometimes it may entail plain intimidation. Equally, foreign involvement can be useful, and sometimes even critical to success. International involvement raises the questions of legitimacy and accountability: what is the moral justification for an international actor’s engagement in the affairs of another people, and to whom is it accountable? There are other ways in which a process may assume international aspects: the development of international norms governing the process and substance of constitutions; the ability to borrow from other constitutions, which has been facilitated by the Internet and the exchange of expert knowledge; the growth of an international class of constitution-makers and international nongovernmental organizations (NGOs). The varied participation of the international community is discussed in parts 2.3.12 and 4.2.