Constitutional Review Body Must Prioritise Inclusivity

By Michele Brandt

OPINION: The Taoiseach has announced that Ireland is going to have a “constitutional convention”, which will examine the options for reform on a range of issues: review of the electoral system; reducing the presidential term to five years and aligning it with local and European elections; giving citizens abroad the vote in presidential elections; same-sex marriage; amending the clause on women in the home and encouraging their greater participation in public life and politics; removing blasphemy from the Constitution; and reducing the voting age to 17.

Drawing on comparative experience, Ireland’s “constitutional moment” is an ideal opportunity to promote public participation in the process, renew a commitment to democratic engagement by citizens, as well as a national conversation on the kind of Ireland citizens want to live in.

International comparative experience indicates that there is no blueprint for making or reforming a constitution.

But, there is much to be learned from over two decades of experience of other states. From Afghanistan to South Africa, Iceland to Kenya, a study of the underlying principles used to guide reform processes provides insights into the aspirations, accommodations and expectations involved. Insights that can help to guide decision-makers around pitfalls to be avoided when designing their own processes.

International analysts as well as constitution-makers and the UN have argued that the process of making the constitution is as important as the content of the reforms, and have identified several important principles underlying meaningful constitutional reform. They include the need to promote greater public participation, meaningful representation and inclusion, particularly among vulnerable people on the margins of society, to construct an open and transparent process and to foster a sense of national ownership in the project as a whole.

A truly inclusive approach draws all key stakeholders in. Efforts must be made to engage meaningfully with more marginalised sectors of society including women, young people, people with disabilities, ethnic and religious minorities, disadvantaged groups, migrants and non-citizen actors.

Over the last two decades, the forms of participation in constitution-making processes have gone beyond the traditional methods of voting for representatives or in a referendum. Official participation opportunities now include civic education and public information campaigns; widespread public consultation, which can occur at several stages of the process; the serious consideration of the views of the public; the promotion of national dialogue; and implementation efforts post-adoption of the constitution.

With regard to representation, some recent constitutional processes have undertaken special measures for minorities or other groups – some legal frameworks ensured that women were represented by at least 25 per cent in constitutional bodies, while Afghanistan’s constitutional Loya Jirga even set aside three seats for Sikhs.

Transparency is key to the process – a significant contrast with the making of constitutions behind closed doors by elite elements that was common even into the 1970s and 1980s. A transparent process enables the public and civil society to participate by establishing a clear legal framework for the process and a roadmap for how it will operate. In such a scenario, the public is informed about how the process will be conducted, the modes of appointment and election of their representatives, the adoption process and their role in the process.

Transparency may also involve media access to various parts of the process and codes of conduct for constitution-makers.

Building trust and confidence in a constitutional reform process takes time and the political will to provide civic education, promote widespread engagement and actively facilitate the marginalised to participate in the process. Politicians and decision-makers have to foster dialogue, encourage diverse views and meet face to face with the people to ensure they hear their voices first hand.

The depth and creativity of South Africa’s participatory process in 1996 has inspired many other constitution-makers to commit to highly participatory processes over the last two decades.

The globalisation of ideas and experiences has also led to growing awareness in many countries of this trend toward direct participation in constitution-making.

Today, if a government does not commit to meaningful public participation in the process and partner with civil society to achieve this, it may expect public discontent to grow.

Comparative experiences of many countries suggests this can manifest itself in the establishment of “shadow” or rival consultation processes; public disengagement; boycott; and ultimately rejection of proposals for reform. The result can be disconnect and ultimately disaffection among stakeholders, including among those most immediately engaged in the process at the outset.

Efforts to build consensus must therefore begin with the adoption of a strong and coherent set of guiding principles to inform the framework for deliberations and to reaching out to civil society to discuss how to achieve these principles.

International experience is that national ownership of a constitutional reform process is key. Those designing the Irish process should seize this constitutional moment to promote genuine public engagement and consider how civil society and the public can participate to create a more legitimate outcome. Members of the convention should meet the public face to face, these views should be carefully analysed, the public should receive feedback about how their views were considered and they should be consulted on the draft reforms before they are put to a referendum.

This will ensure that the public meaningfully participates, and will give life to the programme for government’s call for a renewed relationship between citizens and government.

Michele Brandt, a US-based lawyer, expert on constitutional reform and co-author of Constitution Making and Reform: Options for the Process, gave the keynote address at the Irish Council for Civil Liberties’ symposium on Ireland’s constitutional convention.

The Irish Council for Civil Liberties is an Atlantic grantee.