Public Consultations as part of Constitution-making
Countries have been drafting constitutions for centuries. Parliaments and constituent assemblies have ben engaged in the process of constitution-making process for decades. Referenda as a means of approving a constitution have been an accepted practice for many years. What is new, though, is the seeking of opinions and expertise of the public in the drafting of a constitution and the international support provided to ensure such consultations are effective.
In the past the engagement of a parliament or elected constituent assembly was usually accepted as an alternative to direct public consultation. However, it has become more the norm that the engagement of a political institution should be in addition to a public dialogue about the content of the constitution. There are two reasons why public engagement is important:
1. Legitimacy: In the age of social media and individual empowerment, a constitution cannot be written by a small group of elites and be assumed to be acceptable to the citizens at large. The engagement of citizens will ensure they have had some input into the document and, in turn, are more likely to see the approved constitution as legitimate.
2. Expertise: There are many aspects to a constitution and many citizens, CSOs, jurists and academics will have some expertise in the various parts of the document. It makes sense to seek their input into the draft constitution to make it a better document.
With regard to a constitution there are many forms and methods of consultation. The follow is a small list of potential forms of consultation:
• Social Media: The use of online tools to seek feedback and encourage debate. This may also include the use of SMS and text messaging where internet access may be more limited.
• Written Submissions: Requests can be made for citizens to write in their comments and opinions about various aspects of the draft constitution.
• Information Sessions: Where a summary of the draft document is explained to citizens in small groups.
• Town Hall: The decision-makers meet with citizens in small groups at the local level to hear their concerns and opinions.
• Public Hearings: A formal process for seeking input, usually conducted by a constituent assembly or parliamentary committee.
• Focus Groups: This involves identifying small groups of designated and marginalized citizens (i.re. – women, indigenous people, youth) and seeking their perspectives.
• Surveys: Using quantitative data based on a few short questions allows for a large number of inputs.
• Conferences: National and sub-national conferences can be held with invited experts from academia, CSOs and other key groups to discuss and debate the components of the constitution.
No matter the tools and methods used to consult, the key is to ensure as broad a cross-section of the citizenry is consulted as possible. The process should reflect a variety of political, sectoral and geographic interests.
In the end, the consultations are not binding on the decision-makers, whether that is a parliament or the citizens in general (through a referendum). But the feedback should be used to ensure the draft that is submitted for approval reflects the common interests and values of the vast majority of citizens.