Changing modes of making the constitution
Focusing on public participation helps us understand the complexity and dynamics of constitution-making. It alerts us to the variety of interests and groups that often become involved, or may want to become involved, in making a constitution. It points to the degree of inclusion in a process. It may give some guidance about the kinds of issues likely to dominate the constitution-making process. It draws attention to the relative strength of the participating groups, often pointing to the dominance of one or more groups. It can help lift the veil from the official process by giving insights into the actual negotiating and decision-making processes, where the key decisions are really made. It can also show the influence of outside forces (which on the whole do not feature in the design of the formal process), often away from the glare of publicity, and give some indication of how nationally autonomous the process has been. (See part 4.2 on the role of the international community.)
The importance of broad popular participation in constitution-making processes has varied historically and regionally. In a country where there is a tradition of interest-group organization and representation, even if that has suffered interruption, direct popular participation in the process usually receives low priority. The greater level of media activity and the stronger tradition of representation help ensure that people have a chance to hear debates on constitutional issues without necessarily having direct involvement in the official process. They may also be able to convey their views through established channels, rather than through special participatory arrangements established as part of the constitution-making process. By contrast, where civicgroups, unions, media outlets, and political parties are few, less established, or of limited reach, establishing special arrangements for direct involvement of the citizens is usually more necessary as a way to convey and obtain information, enhance the public orientation toward law, and build constitutionalism. For these reasons, popular political participation attracts a higher priority in Africa, Latin America, Asia, and the island Pacific.
Other significant factors in the increasing focus on public participation in constitution-making processes include the restoration of democracy in many parts of the world since the late 1980s and the increasing recognition of people’s sovereignty, the constitution being the basis of the organization and functioning of the state. The right to participate is provided for by several international norms, particularly the right to take part in public affairs (article 25 of the International Covenant on Civil and Political Rights), the right of minorities to self-rule (the United Nations declarations on minorities and on indigenous peoples), and the right to self- determination (the charter of the United Nations, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights). Some authorities regard these and other human rights instruments as perhaps a basis for a right to participate in constitution-making. Despite these normative and practical reasons, there is considerable controversy over the desirability of public participation. Before we consider the controversy, let us describe what we mean by “public participation,” major participants, and principal methods of public participation.
Meanings and aspects of public participation
Public participation has many aspects. The distinctions we may draw are: (a) direct versus indirect participation or representation (indirect raises questions of method of election or appointment and of accountability, or reporting back); (b) participation in discussions, lobbying, and the like versus participation in decision-making; (c) participation as part of an official process versus informal participation, with people taking their own initiative.
Public participation covers a broad spectrum of activities, including voting and standing for elections; being part of decision-making (in various state institutions, particularly the legislature and the executive), perhaps with a veto on some matters; opportunities to influence official policies; forms of self-government, such as autonomy; and consultative bodies. Public participation in constitution-making processes is more specific, directed as it is toward influencing the final outcome of the process, the constitution. However, even here public participation takes a variety of forms. It includes much more than formal procedures for receiving people’s views, and extends to private initiatives to mobilize support and lobby constitution-making bodies, which often take place even if there is no such formal procedure.
There is no set pattern; the extent and form of public participation depend on the overall design of the process. Sometimes there may be a deliberate attempt to limit public participation. The reason may be a distrust of the people in general, perhaps because of their lack of understanding of constitutional matters or of moral judgment, the fear of a populist constitution, or a wide reform agenda with major implications for the allocation of resources. It is sometimes said that after World War II, the lack of trust in mass politics led to restrictions on public participation in the constitution-making process (especially in Germany and Japan, although in the latter case the fear was that public pressure might prevent the political reform that the Allied powers deemed necessary).
Public participation can occur at many stages of constitution-making, and can take several forms. It may be more intensive in some stages than in others. The preprocess stages may be undemocratic; the prior principles may have been negotiated between closed groups or factions. The eighteenth-century process to develop the United States constitution became more open and participatory as it progressed, after the constitution had been drafted. But in some cases, the earlier stages may be the most democratic and participatory: massive protests and engagement by thousands of people may have been instrumental in getting the process started (as in the Philippines  and Kenya ). At some stages public consultation may be wide-ranging, with several opportunities for the public to express views before the draft is prepared. And even when an initial draft has been prepared, there may be ample opportunities to comment on it before final decisions are made. There is nothing like getting your teeth into a concrete set of recommendations after what might have been a bewildering array of proposals and counterproposals. Sometimes both the initial and the concluding stages might restrict public participation, as decision-making is often facilitated by some degree of secrecy.
The process may sometimes begin with initial discussions about the parameters and guidelines for future talks. This has been characterized as talks about talks. (Proceedings 2007). (See part 2.1.9 on interim constitutions.) This is usually an elite affair, often undertaken in private (as in Iraq, in Nepal, and in the failed Sri Lanka talks)—although in South Africa and Spain voters were allowed to ratify the outcomes of such initial processes through elections. Often interim arrangements themselves restrict public participation (as in Afghanistan and Nepal).
The degree of public participation in the actual preparation of the draft constitution varies. There is often considerable public participation when the draft is prepared by an independent commission (in Kenya and Uganda, the commission was required to promote public participation and to follow public recommendations in drafting the constitution). Preparation of a draft by a separate commission is a common pattern. When the draft is prepared by a committee of the legislature or of the constituent assembly itself (a rather less common arrangement) both public participation and transparency are less evident.
When the draft is being debated and enacted, public participation decreases, as the members of the relevant body (usually the legislature or the constituent assembly or an equivalent body) focus on the draft—adopting, rejecting, or amending it. But even here, public participation can continue through lobbying, petitions, public demonstrations, and the like. Some processes provide for referral to the people by referendum to resolve outstanding issues, but the use of this device has been limited. (See part 2.5.2 on dealing with divisive issues.) A more common
use of referendums is to determine whether the draft constitution produced by another body (such as the legislature) should be adopted, and that provides a further opportunity for the public to review the merits of the draft. Often, the final decision on the adoption of the constitution as a whole lies with the legislature or with the constituent assembly. But when the draft is put to a referendum, the final decision rests with the people—the highest form of public participation.
The impact of public participation
The impact of public participation does not depend only on formal provisions about how the constitution-making process and participation in it are structured. Much depends on the persuasiveness of the public submissions, or the political clout of the lobby (e.g., how closely it is connected to powerful interests), or the zeal with which organizations carry on their campaign. The submissions may be addressed to the constitution-making body, but they also seek to mobilize the people and win their support, to put pressure on the decision-makers.
Impact also depends on the approach of the decision-making body to the collection and analysis of the public’s views and the importance it attaches to them. The manner in which official bodies (constitutional commissions, constituent assemblies) process the oral or written submissions made to them is critical. (See part 2.2.4.) The submissions can be manipulated, or analyzed with a bias, or some views may even be suppressed.
Public consultations can come from the top down or the bottom up. They mostly come from the top down (when initiated by political or civil society elites), but sometimes there are attempts at public consultation that arise from the bottom up, as in Kenya and Uganda. In Nepal they primarily came from the top.
How people are instructed in constitution-making tasks and their sequencing, the manner in which they can address the commission or the assembly, who provides civil education, and the monitoring of the process for impartiality are all crucial elements in the effectiveness of public participation.
The transparency and authenticity of the analysis of views are fundamental to the credibility of the entire process. In Kenya the decision-making bodies engaged in extensive public consultation, painstakingly analyzed public views, and reflected them in the draft and final constitutions. In Afghanistan, the decision-makers were essentially political leaders; the commission was not an independent body, and the views that had been collated and analyzed by the research section and the Afghan secretariat were ignored. The importance of careful analysis of public views is crucial when the institutions for constitution-making are enjoined to incorporate the people’s recommendations. (See part 2.2.4.)
The relevance of decision-making bodies
The focus of the literature on public participation is often on the interaction of the people with the decision-making bodies. Equally important can be the composition of these bodies and the rules whereby decisions on the constitution are made. It is often said that a constitutional commission should be independent and consist of experts, and that constitutional assemblies should be elected through proportional rather than majoritarian voting systems. But little has been written about the independence of the members of the assembly. (In Nepal they were all elected under the auspices of political parties and were subject to party whips.) And how the people interact with the assembly once it has embarked on the decision-making stage is also important. This bears on the rules of procedure, which determine the openness and transparency of its committees, public hearings, and the like. All too often these rules are taken from the standing orders of legislative bodies—which may be quite inappropriate for a body charged with making a constitution. This seems to be an under-researched issue. In participation by delegates, the extent and quality of public participation depends heavily on the rules of procedure and the autonomy of the assembly. Participation by citizens depends on the political, consultative, and lobbying activities of the people and their organizations.
The concept of “the people” (or “the public”) is more complex than is usually realized. A proper assessment of the impact of popular participation cannot be made if the concept of “the people” is not disaggregated. There is no such thing as “the people.” Rather, there are religious groups, ethnic groups, the disabled, women, youth, forest people, pastoralists, “indigenous peoples,” farmers, peasants, capitalists and workers, lawyers, doctors, auctioneers, and practicing, failed, or aspiring politicians, each pursuing his or her own agenda. They bring different levels of understanding and skills to the process. The key players in the international community pursue their own objectives. Sometimes the composition or procedure of bodies with decision-making roles in the constitution-making process may privilege one or another of these groups. Unless one believes in the invisible hand of the political marketplace, not all such groups can be counted on to contribute to producing a “good” constitution. The proper and fair management of public participation is essential for a good process. (Despite the complexity involved, we cannot avoid sometimes using the terms “the people” and “the public,” but where we do, the considerations just discussed may need to be borne in mind.)
An agreement may be easier if the parties to the process are limited and the talks are confidential (but sometimes bringing in new groups may help—bipolar disputes are difficult to resolve). However, even when successful, these agreements and the ensuing constitution may depend excessively on the goodwill of the negotiators and may fail to respond to the concerns of the people. They may lack firm social foundations.
Particularly problematic is the participation of groups that have used violence to pursue their objectives (especially in postconflict situations). They have demonstrated a lack of commitment to human rights and the peaceful resolution of differences. Often they demand preconditions for peace talks and constitution-making, including amnesty for violations of the
rights of others and the disruption of the peace. Such amnesties are controversial and make others feel that the perpetrators of violence or abuse will simply reassert their power and undermine the security and well-being of others. On the other hand, the refusal to make some accommodation with them can complicate the peace process (as Iraq discovered with the “lustration”—exclusion from holding public office—of thousands deemed to be part of the Saddam Hussein regime). Giving amnesty for past offenses on the condition that no fresh violations will take place may be an incentive to stop violence. Sometimes the solution may be to postpone the question of accountability.
In some countries where there is deep mistrust of politicians, the predominance they normally enjoy in the constitution-making process has been questioned. It may be said that they have narrow personal or party interests, closely connected to their access to and exploitation of the state and its resources, which they try to advance or preserve through the process. They may also have an interest in fomenting ethnic differences to maintain their leadership positions, regardless of the national interest, and thus their role can be deeply divisive. Since in one sense the politicians can be the principal beneficiaries of the resources of the state, it can be argued that their influence on the making of the constitution of the state should be limited. However, attempts to reduce that influence are seldom successful, and in practice a constitution can seldom be made without their full participation, as they control the state and the institutions of the constitution-making process.
Assessing the impact of public participation
It is not easy to evaluate the impact of public participation. It is easier to assess the role of rules and procedures in the official process. Traditionally, public participation and the concept of constituent power have been examined in the context of the primary procedure for decision- making: for example, either the referendum or the constituent assembly. Studies on constitution- making focus primarily on the decision-making bodies, and for the most part ignore the pressures that might be brought on the decision-makers. For a complete picture, it is necessary also to look at the informal processes, the mobilizing of the support of groups and communities, and the contribution of civil society in terms of ideas and organization. Partly with the help of emerging regional or international norms, many groups (women, the elderly, the disabled, indigenous peoples) are able to mount impressive campaigns of their own making. Moreover, the efforts and influence of some groups are evident or transparent, but some (e.g., international actors, key embassies, and international agencies) shape the process behind closed doors.
Another difficulty in making this evaluation is the lack of agreement on the criteria for assessment of the impact of public participation. Sometimes the focus is almost exclusively on whether a new constitution was achieved, regardless of its quality. At other times the focus may be the reverse: whether a bad constitution was prevented. Or the focus may go beyond the actual document to the dynamics of the process and the wider outcome from societal or political viewpoints: whether the process was healing, whether it stimulated constructive public debate, whether it led to a more informed and activist citizenry. It is not difficult to imagine how different groups may choose to place their own emphases in their assessments.
The impact of public participation may be examined by reference to various factors, including the following:
- its effect on the outcome, i.e., the content of the constitution;
- the resolution or creation of conflict, particularly national unity or disunity;
- the broadening of the political reform agenda;
- the responsiveness of the constitution to national aspirations and issues;
- the legitimacy of the constitution;
- its effect on people’s consciousness—understanding the machinery of government and enabling people to evaluate the policies and pretensions of politicians;
- its effect on people’s empowerment, and their willingness to participate in public affairs; and
- the promotion of understanding and support for constitutionalism.
On these and other issues there has been limited research, and as yet few well-informed judgments; these factors have contributed to a range of competing views. More research, particularly of an empirical kind, is necessary. Here we present the main arguments or assertions of the proponents and critics of general public participation.
Potential opportunities in public participation
In addition to the normative principles mentioned at the beginning of this section, there are practical justifications for public participation. In some countries, especially in Asia, the island Pacific, and Africa, political parties are not mass based and do not represent sections of the people with some degree of common interest (as parties often do in Western countries). Nor are there many intermediate bodies that can speak for the people. Often the only alternative, if it is considered desirable to engage the people, is their direct participation, in slums, villages, and small towns.
Public participation is deemed to strengthen national unity through an inclusive process, reflecting religious and linguistic diversity, by resolving national differences and striking a balance between national identity and values and those of regional or cultural communities. The involvement of the people in the constitution-making process has the potential to reconcile conflicting groups. Public participation empowers the people by acknowledging their sovereignty, by increasing their knowledge and capacity, and by preparing them for participation in public affairs and the exercise and protection of their rights.
People’s participation is important to expand the agenda of constitutional (and social) reform. Generally the agenda is defined by elites, largely urban based. When invited to give their views, members of rural communities and workers are likely to present new perspectives on issues
such as public participation, decentralization, land, basic needs, and the accountability of members of parliament and local officials; these perspectives are firmly rooted in local realities. Popular engagement can bring to the dialogue different social forces, interrogating the assumptions of the elites and officials, and to some extent setting up a counterbalance to politicians. Until recently, almost everywhere politicians have played a decisive, and sometimes the exclusive, role in constitution-making. But worldwide, there now appears to be cynicism and suspicion about the motivations of politicians and political parties; they are seen as serving their own narrow, partisan interests. The broadening of the reform agenda that comes from popular participation is an important corrective. Public participation often leads to an emphasis on values and morals, the responsibility of the state, and the integrity of officials, while politicians focus on state powers and institutions.
Public participation can seldom be effective without civic education, which enhances understanding by “the people” of the structures and mechanisms of the state and its obligations to its citizens, which are often protected through fundamental rights. The people learn about the ways to monitor state institutions and about accountability. They may thus acquire knowledge and respect for the principles of constitutionalism. Possibilities for public participation, together with the possibility of funding, may help create and develop civil society, not merely reflect it.
A broad consultative process may also reduce the risk of bad surprises that sometimes occur during a process, such as the sudden discovery that support for an agreement has disappeared because a disaffected, unrepresented party has mounted a public campaign and has swayed popular opinion—or that at a late stage, politicians have made a deal to sabotage the process or have agreed on constitutional provisions unfavorable to the public interest. Bringing the public into the process makes it less likely that deals will be struck that will be undone immediately.
Some say that a constitution produced through a widely participatory process will be more stable, with prospects for longevity; it represents a considerable consensus and is responsive in that there will be fewer demands for renegotiation down the road. There is also a widely held belief that public participation endows the constitution with considerable legitimacy and leads to a feeling of ownership by the people and a corresponding resolve to defend it against sabotage.
Potential risks of public participation
Supporters of public participation have been criticized for romanticizing “the people.” The reality, the critics say, is much less edifying. People may not be generous or willing to enter into serious discussions with others. They may seek only self-interested positions that can continue to fuel rather than resolve conflicts. A significant part of the reason for such problems with public participation is that “the people,” and even leaders of significant social groups, often have a limited understanding of the proper role and scope of the constitution. Whether they are conservative or populist, people may be intolerant, prone to manipulation by fundamentalists, contemptuous of experts, and long-winded, and their participation may unreasonably prolong the process.
One fear about public participation is that in a divided society the debate may revolve around ethnic axes rather than the national axis. Politicians with an interest in the mobilization of ethnicity will push the interests of their communities. This not only obscures the national interests but also leads to fragmentation and competing claims based on ethnicity. When the distinction is based on religion, the discourse becomes increasingly religious, forcing religious values on the whole country. When the basis is ethnicity, cultural differences may lead to serious disagreements on issues such as choice of national language and protection of minority rights. In either case, those who are not well placed in the religious or ethnic order may find that their voices are silenced and that their lowly position is unlikely to be remedied. Concessions to cultural norms and hierarchies may devalue the rights of individual citizens, by the constitutional recognition of the community as an important bearer of rights.
The constant emphasis on culture may result in constitutions that are no longer congruent with dominant international economic and social forces. In the process the gap between the constitution and social and economic realities widens, often increasing the risk of future conflict.
On the other hand, public participation opens up the process to external influences. In constitution-making processes in many parts of the world (especially Africa, Asia, and the island Pacific), most resources for civic education (an essential precondition for public consultation) come from Western governments, either directly or through a few international agencies. Materials used for civic education are heavily influenced by international norms and the practices of Western states. Insufficient attention is paid to national history or culture (which may be seen as inconsistent with human rights norms). Young college graduates from the West are normally sent in to assist local nongovernmental organizations (NGOs), which in most cases are totally dependent on external funds.
Box 10. Veil of ignorance
The philosopher John Rawls suggests that the best way to design a society would be for everyone to operate in a rational, self-interested way, but behind a “veil of ignorance” that conceals from everyone his or her own characteristics: male or female, with a disability or without, language, tribe, religion, and age. Negotiations between such rational but ignorant people would produce a system fair to all (Rawls 1971). In the real world it is not possible to ensure such beneficially ignorant constitution-makers. There may be moments in a country’s history when groups are ignorant—“How many of us are there in this group?” “Are we likely to win the next election?” Those may be good moments to produce a fair constitution—and if the moment passes, attitudes may harden and fairness fade.
Those NGOs, responsible mostly for civic education and sometimes for the collection of public views, have also come under attack as promoters of public participation. The bases for the critiques include claims that such bodies are dependent on outside, often international, sources; responsive to economic opportunities (“fundraising”); urban based; nondemocratic (not membership organizations); bureaucratic; competing for money and roles; not particularly knowledgeable about constitutions; and often allied to political (including ethnic) parties.
A participatory process tends to be the opposite of “the veil of ignorance.” John Rawls’s theory of the veil of ignorance is based on the assumption that decision-makers do not realize who they are (black/white, male/female, high caste/low caste) and so vote not for a particular interest but for the general interest (Rawls 1971). In the participatory process, the purpose is to engage with individuals and groups with differing interests so that they can advance those interests (not the general interests of all groups and citizens). Particular interests are often pursued with vigor and sometimes intimidation.
The variety of interests (frequently conflicting) usually involved in a highly participatory process makes it hard to find reasonable agreement. The difficulties are compounded when there is an emphasis on achieving consensus on major constitutional issues. A great deal of time and effort may then be devoted to trying to build a consensus, with complex bargaining. Sometimes a small group may end up effectively having a veto. Although processes often provide a mechanism for coming to a decision in the absence of a consensus (see part 2.5.2 on dealing with divisive issues), the process becomes lengthy (well beyond the point when the public can make any further useful contribution). The constitution itself may also tend to be lengthy, as a settlement may be possible only with the acknowledgment of the claims of many interests.
Sometimes the consequence of a participatory process in a deeply divided society is that decisions are made not in accordance with the participatory and transparent manner of the formal process but secretly, by a small group of influential members or even nonmembers.
So the process of decision-making may be driven less by “deliberation” (i.e., the fair consideration of all positions, guided by values of democracy and the general welfare) than by populism and crude bargaining. Some say that this defeats the objective of a constitution, which should be to provide a general set of provisions addressing national interests in a rational manner.
A participatory process can sometimes generate a feeling (especially among minority groups) that this is their one opportunity to achieve their objectives, even if those objectives have no particular constitutional significance. And influential groups, distrustful of politicians, may seek to constitutionalize what are essentially matters of policy, not a framework for decision-making. Both these factors may work against “deliberation.”
The prospects of a deliberative approach may also suffer from the holding of a referendum. The reason is that in the hope of encouraging a “yes” vote in the referendum, decision-makers may be influenced to include provisions in the draft constitution that they believe are most likely to be accepted by the people or even by some particularly troublesome group (often religiously or ethnically oriented). In doing so they may dispense with what is rational and feasible. (See part 3.5 for a discussion of the use of the referendum in constitution-making processes.)
The role of experts (see part 3.4.1) is often marginalized in participatory processes. Once the people get into the tempo and spirit of constitution-making, and gain a sense of ownership of the process, they tend to disregard, even disdain, professional advice (which is often rooted in more conservative traditions). This may also lead to the neglect of what some regard as the “cautious” rules for the method and scope of constitutions. The form of bargaining that attends a participatory process may lead not only to a lengthy document but also to a constitution lacking internal coherence. A particular casualty may be the workability of the constitution, due to the burden placed on it to accommodate a variety of interests. The ambitiousness of the constitution may then exceed the capacity of the state, and may in due course lead to the delegitimization of the constitution.
Views on the consequences of a participatory process are sharply divided between its supporters and its opponents. The differences are based partly on ideological factors, partly on practical grounds. Hitherto there has been relatively little scholarly attention paid to this debate, making generalization difficult. Greater attention needs to be given to the dynamics of public participation, the phases where such participation is appropriate, and the methods of public participation.
There are clear advantages to public participation, both for the process and for the long-term prospects of constitutionalism. Most of the objectives of a constitution-making process, such as promoting reconciliation, strengthening national unity, or broadening the social agenda, cannot be achieved in the absence of public participation. There is also now consensus that certain norms, based on the principles of self-determination and political rights, should be incorporated into the design of the process.
But the dangers of public participation are also real. The challenge is to avoid the perils of manipulation of the people by interest groups, ethnicization of opinion, populism, and so forth. Otherwise the constitution-making process will become just another form of politics and not a deliberative process that generates consensus-building and reconciliation. It should promote conversations not only between the people and the constitution-makers (constitutional commissions, constituent assemblies, and the like) but also among the people themselves. This can make them aware of the histories, contributions, anxieties, and aspirations of others, and deepen the understanding that is so critical to developing national unity, conflict resolution, and peacebuilding.
A deliberative process requires public participation opportunities that are not isolated but instead provide ongoing chances to discuss and engage with the design of the process, the key issues, the development of the draft, and the implementation of the final constitution. The next sections focus on the practical and other key aspects of preparing the members of the public to participate through civic education efforts and consulting them at various stages of the process.