Constitution Writing & Conflict Resolution

Participation

In 1999, the Commonwealth issued guidelines for constitution writing that stressed the need to engage ordinary citizens in the process. Citizen engagement may take many forms.

Representation

One way to engage ordinary citizens is through the selection of popular representatives to the bodies that develop the draft. Popular election is the most accepted mechanism for securing popular representation, but electoral rules, access to polling places, information levels, and insecurity all shape the degree to which the views of ordinary citizens have spokespeople in subsequent deliberations. Some countries have allowed social and economic organizations to select delegates and have then sponsored indirect elections from these ranks to the main body responsible for deliberation. At the other end of the spectrum lie cases in which the incumbent is able to appoint those who draft and deliberate without regard for inclusion of diverse points of view or important stakeholders.

Control Over Ratification

A second consideration is whether there is any popular control over ratification. Does an assembly of delegates selected in a free and fair election vote to ratify? Does the public have the ability to reject a draft in a national referendum that follows civic education and an adequate campaign period? Or is there no opportunity for the public either to select the delegates who ratify the document or to reject the document itself? Referenda are often considered suspect as forms for securing popular participation, in part because it is difficult to expect most people to inform themselves about the content of a document as complex as a constitution and in part because turnout tends to be low.

Consultation

It is increasingly common to consult members of the public at key stages in the constitution writing process. Do the people who prepare the initial text meet with civic leaders, economic and social leaders, and other citizens, including those outside the capital city? Are there hearings at this early stage to assess concerns and reactions? May civic groups or ordinary citizens submit comments and suggestions in writing, and is there a process for using this information? After adoption of a draft but before ratification is there a comment period or an effort to organize public hearings? Throughout this process, is the media allowed to report on key stages of the process and entertain public discussion through editorials, interviews, and letters to the editor?

Some form of popular consultation occurred in roughly 40 percent of the 194 cases studied in this project. In just over 30 percent, drafters employed more than one technique for soliciting public views. In 25 percent, these efforts extended to remote locations as well as to citizens living in urban areas. These forms of consultation have played a less prominent role in European and Eurasian constitution drafting than they have iin recent African, Central American, and Pacific ventures, perhaps because citizens feel more comfortable delegating decision making to elected representatives or more satisfied with access to the media as a forum for debate.

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