—Alexander Hudson, Max Planck Institute for the Study of Religious and Ethnic Diversity
[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]
I·CONnect has recently published a series of excellent essays on the constitution-making process that will soon begin in Chile. One element of the process that was mentioned by several of the authors was public participation. Indeed, public participation was a central element of the ultimately unsuccessful constitution-making process in Chile in 2015-2017. The fact that the current process of constitutional reform responds so directly to pressure from protest movements also suggests that participation outside the halls of the Constitutional Convention will be an important part of the 2021 constitution-drafting process. As anyone who has paid attention to constitution-making processes in the last several decades knows, Chile is far from an exception in this regard. Countries that vary on every political and social measure have incorporated participatory elements in processes of constitutional reform and replacement. Reflecting on these trends, Kirkby and Murray wrote that: “Today it is inconceivable that a government would attempt to draft a new constitution without at least a nominal commitment to a process in which the public is consulted.”[1]
One of the most interesting questions that all of this participatory activity raises is: to what extent does input from the public really influence the content of the constitution? To return to the Chilean example again, it is very likely that the drafters in the new Constitutional Convention will receive tens or even hundreds of thousands of submissions from the public in one form or another. What will they do with this material? How will they weigh it against other sources of information, or other avenues through which political demands are communicated? Beyond simple curiosity about what will transpire, these questions have immense normative importance.
I set out to answer this central descriptive question concerning the impact of public participation in a research project that I concluded earlier this year. As I show in a forthcoming article and a book that will be published by Cambridge University Press in April, public participation is unlikely to have a significant impact on the content of the constitution. I also show that when we compare the differential effects of participation across cases, political parties come into the picture as the main explanation. Strong political parties (which have both internal discipline and programmatic commitments) are particularly unlikely to draft constitutions that respond to public participation in the drafting process. Weaker political parties (which have greater needs for both information about what the people want and legitimation of their constitutional projects) are comparatively more likely to incorporate public input in their constitutional drafting.
My research in South Africa in particular demonstrated the challenges that elected representatives face when they seek to give public input some consideration as they draft a constitution. Drafters in Chile (and elsewhere) are likely to encounter these challenges, and their responses to them will no doubt influence the extent to which they will seek to give effect to the input they receive from outside the Constitutional Convention. These challenges could be grouped under three headings: (1) the balance between representing the voters and the participants, (2) the relative weight to be given to submissions from individuals, (3) the need to legitimate the constitution.
Many constitution-drafting bodies in recent years have been elected – either explicitly for that purpose, or through elections to the regular legislature. So long as these elections are reasonably free and fair, they give the members of the constitution-drafting body both a legitimate claim to represent the interests of a group of voters, and some responsibility to those voters. Somewhat like voters (but in an exaggerated way) in almost every case participants in constitution-making processes are self-selected and descriptively unrepresentative of the broader population. What then should such a representative do when they consider new inputs from participants in a constitution-making process? During a meeting of the sub-committee that drafted the Bill of Rights in South Africa, leader of the Democratic Party, Tony Leon described the problem to his colleagues this way:
I mean the other factor we’ve got to ask ourselves, political parties here represent the voters, the citizens of South Africa, all of them. How do you weigh up I mean you know we get a representation from an interest group or whatever it is… I mean you know what weight do we give it, I mean because the point is, it’s very necessary but we [are] going to be festooned with paper. I mean when people start you know writing in they write in and the people who don’t write in, who gets submissions from another way, it – we also got to take them seriously. But we also got to take ourself [sic] seriously as political representatives and it’s also going to be an evaluation exercise perhaps we sort of just have to feel our way.[2]
The second challenge actually has two levels. First, there is the challenge of how to evaluate submissions from individuals against those from groups. Second, drafters must decide how the volume of submissions on a particular topic (and on one side or the other) should influence their decisions. In South Africa, there was some difference of opinion between drafters from different parties on these questions. On the first issue, another opposition-party member of the Constitutional Assembly explained his approach to me this way:
If random Mr. X says something, how do you begin to process it? How much weight do you attach to it? It’s, you know, like Stalin said of the Pope: ‘How many battalions does the Pope command?’… The views of, in a sense, organized public, chambers of commerce, traditional leadership, the Volkstaat Council, organized agriculture, were far more seriously taken than random comments by random individuals. I think it served a completely different purpose, and the purpose was legitimating the constitution… The South African public felt like they’d been part of the process, and therefore made the end product more legitimate.[3]
In their statement, this politician pivoted from a statement on the relative weight of input from individuals and groups, concluding that informing the text of the constitution was actually not the point of public participation. (I will return to this last point in a moment.) However, one of the ANC members of the Constitutional Assembly put the matter differently, with the emphasis placed on the potential for persuasive reasoning to outweigh the volume of submissions:
I don’t think what we do is to be guided more by the numbers than by the cogency of the reasoning behind a particular submission… We know that the majority is not necessarily correct at all times… So, there could be one individual who could come and convince a committee of parliament on a particular issue, while hundreds and thousands of others say something different, I mean see it differently. So, as leaders, as representatives of the people, we are required to use something like a strainer, to see which can go through and which need not go through.[4]
This comment also recalls the argument made by Tony Leon above – elected members of the Constitutional Assembly bring their own judgement to bear, and have to weigh the input from the public against the other information and experiences they have collected.
The drafters in South Africa gave particular attention to the third challenge in their public speeches in the plenary sessions of the Constitutional Assembly. As the constitution-making process began to gather steam in the last months of 1994, ANC member Mohammed Valli Moosa argued:
The legitimacy of a constitution is in no small way influenced by the legitimacy of the process which produces it. The proposals before the assembly today provides for extensive measures, in order to secure the involvement of the public. No stone will be left unturned in ensuring the involvement of all South Africans in the process. In doing this, merely calling on the public to make submissions, as we have done in the past, is simply not good enough. Only those with the means, the knowledge and the confidence to make submissions will do so. In other words, we will be flooded with submissions from those privileged sections of our community only. We need to take steps to ensure that the views of the disempowered majority in this country are also received in this House.[5]
Over the next year and a half, the South African constitution-making process was a major success in this regard. The programs for education, publicity, and consultation reached a large percentage of the population. A survey commissioned by the Constitutional Assembly found that 48 percent of South Africans felt that they had been part of the constitution-making process.[6] Then-Chairperson of the Constitutional Assembly (and current President) Cyril Ramaphosa celebrated this fact in a speech in the last days of the drafting process:
Participation in this process by interested parties, role-players, experts and, above all, the people of our country, has been facilitated, witnessed and encouraged. In order to bring the views of the South African public directly into the process, we launched what we can today call one of the country’s biggest exercises in participatory democracy in the form of the public participation programme. Over two million people responded to the call by the Constitutional Assembly to participate in the constitution-making process. People participated by attending meetings arranged by the Constitutional Assembly. They participated by writing letters, by making submissions and even by making phone calls to the Constitutional Assembly… We have made all efforts to respond to every submission.[7]
The public participation program accomplished a number of things in South Africa. It certainly raised the level of constitutional literacy across the country. It also served to legitimate the constitution. The survey data (both as referenced above and in more recent years) indicate that the constitution enjoys a relatively high level of support.
However, public participation was not actually influential for the content of the constitution. My extensive research into the documentary evidence in South Africa demonstrates that public participation in consultations, letters, and petitions had little impact on the constitutional text. In some ways this should be expected. As the quotations above illustrate, while some drafters were open to the possibility that “random Mr. X” might have something persuasive to say, that wasn’t really the point. The point was to educate the public about the constitution, make the people feel like they were part of the process, and in so doing legitimate the constitution. While it is perhaps disappointing to find that public participation has little impact, legitimating the constitution is a legitimate goal. Moreover, elected members of a constitution-drafting body must weigh the various sources of information before them, and their various obligations to both their electors and the interested persons who make their voice heard in the constitution-making process. At least in Chile, the voters will have the final word, as they can hold the drafters to account for their (in)attention to public demands in a ratifying referendum.[8]
Suggested citation: Alexander Hudson, Does Popular Participation in Constitution-Making Matter? Int’l J. Const. L. Blog, Nov. 25, 2020, at: http://www.iconnectblog.com/2020/11/does-popular-participation-in-constitution-making-matter/
[1] Kirkby, Coel and Christina Murray, “Constitution-Making in Anglophone Africa: We the People?” in Growing Democracy in Africa: Elections, Accountable Governance, and Political Economy, ed. Muna Ndulo and Mamoudou Gazibo (Newcastle upon Tyne: Cambridge Scholars Publishing, 2016), 87.
[2] Hon. Anthony Leon, 7 November 1994, Theme Committee 4, Constitutional Assembly, Cape Town
[3] Author’s interview with “LCWS,” 24 March 2016
[4] Author’s interview with “DLSR,” 15 March 2016
[5] M V Moosa, Proceedings of the Constitutional Assembly (31 October 1994), p. 221.
[6] Everatt, David, Katalin Fenyves, and Sarah Davies. A New Constitution for a New South Africa: Evaluating the Public Participation, Media, Education, and Plain Language Campaigns of the Constitutional Assembly. (Cape Town: Community Agency for Social Enquiry, 1996), 19-22. National Archives of South Africa: CA 8: 1/18/7-1/19/6
[7] M C Ramphosa, Proceedings of the Constitutional Assembly (23 April 1996), p. 82.
[8] Although, as Zach Elkins and I have found, voters almost never reject a new constitution. Elkins, Zachary and Alexander Hudson, “The Constitutional Referendum in Historical Perspective,” in Comparative Constitution Making, eds. David Landau and Hanna Lerner (Cheltenham: Edward Elgar, 2019), 142-164.
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