Constitutional processes in the world

By Ismael Peña-López
ICTlogy (ISSN 1886-5208). Issue #165, June 2017

 

Notes from the conclusions of the conference cycle Constitutional processes in the world, organized by the Catalan Government, and held in Barcelona, Spain, on 15 June 2017.

Chairs: Raül Romeva, ministry of global affairs, institutional relationships and transparency, Government of Catalonia

Jaume López, Univesitat Pompeu Fabra

Jefferson said that the values of the past should align with the projects of the future: every generation should write their own constitution.

Representative democracy, deliberative/participatory democracy and direct democracy as three methodologies that complement each other. Democracy is about choosing the best tools to make decisions, but also to overcome the most dangerous hazards. Best results usually rely on best designs. That’s why the importance of the democratic design. Participation is a good tool to open constitutional processes to the citizenry.

What is to be expected in a constitutional process?

  • A constitutional text of the maximum quality, representing an actual understanding of democracy, acknowledged by most.
  • An exercise of citizen of empowerment and emancipation, that legitimates the new political system, combining the virtues of direct, deliberative and representative democracy. Deliberation has to be of the most quality and widely participated by everyone.

The probability of success depends on the acknowledged need for a change and the coincidence in the methodology to perform that change.

There is a global trend that democracy is becoming more direct and participated. And there hardly is a chance for turning back to strictly representative politics. The results, though, vary: participation does not necessarily lead to quality. Design matters.

Six examples in the world: Iceland, Ireland, Scotland, Ecuador, Bolivia, Chile.

Ireland

Ireland used a mixed commission on constitutional reforms: citizens chosen at random and some politicians.

The process of deliberation delivered great outputs. It smoothed the opposing points of view and contributed to the creation of a consensus on complicated issues. The combination of proposals of constitutional reforms plus a confirming referendum proved to be a good design.

Bolivia

There was a constitutional assembly but, before that, there was a pre-constitutional referendum that was binding for the constitutional assembly plus a post-constitutional referendum. The latter was on purpose so that the issue at stake did not block the rest of the reforms, arguably easier to debate and vote.

The assembly had to decide not only content, but also methodology, and it ended up being blocked. It would have been a good idea that the methodology had already been set for the assembly to use it for deliberation on content.

Of course, the existence of the assembly and the parliament presented a major problem of legitimacy.

The need that both chambers of the parliament had to approve the final text implied negotiations between the party in office and the opposition, and somewhat denaturalized the whole “citizen” process, which became much less participated.

Ecuador

A little bit more than 1% of the total population contributed with proposals to the constitutional reform. And this happened without a precise participatory methodology, which made it difficult to advance in the process. This fact was used by the presidency to have a major role in the whole process, again denaturalizing the constitutional participatory process.

Iceland

There was a national citizen forum, chosen by lot, and there was a reporting commission chosen at the elections. But if only citizens, as individuals, write the constitutions, the resulting text is weak and lacks legitimacy. Now the text is seen as a reference document, but cannot be directly put into practice and has thus been set aside.

Chile

The government appointed a Monitoring Citizen Council. The Self-Scheduled Local Meetings were a decentralitzed way to contribute to the constitutional process, to which 1% of the population participated with their deliberations and debates in up to 8,000 meetings.

The resulting proposals were sent to the presidency as the Citizen Basis for the New Constitution.

The participative process still has no clear definition on the later stages. So, the process has been initiated without knowing how it will end.

Scotland

Most of the deliberation went around democracy itself.

There was no constitutional process, because it was due after the referendum of independence and in case Scotland were to leave the United Kingdom. But there was a document written by the Scottish government defining a constitutional convention with a participatory and inclusive citizen process.

Conclusions

It is good that a constitutional process has different stages and each one has different designs/logic. Each stage underlines a specific aspect of democracy.

The connection between stages is very important. The outputs of a given stage have to feed the following one. There cannot be steps backward in terms of rights or of things learned or even in decisions made.

Initial participation somehow sets the pace and scope of the whole process. It will be different to begin with a small set of “experts” rather that with a massive grassroots participation.

Choosing members of commissions at random is generally a good thing for the sake of plurality.

Commissions can be mixed (citizens and politicians) or not (only citizens, only politicians). In any case, plurality within the commission is a must. Among other things, it contributes to establish links between stages.

There is no need to begin with the draft of a constitution. It can be done thus, but there is no need. Supporting documents (reports, etc.) can be handy.

Not even constitutional elections themselves are needed. There is not even the need to stop all legislative activity during the constitutional process. But the final text of the constitution is usually written at the parliament, in an official commission/assembly (although it can be made up by citizens too or even only citizens).

Discussion

Jordi Rich: can citizens not only participate, but lead the constitutional process? Can citizens have a say in what topics are to be debated in constitutional processes? How to guarantee that the results are binding?

Teresa Forcades: how can constitutional processes be initiated when the momentum for change is unclear? What happens when there is no consensus on the need for a constitutional reform?

This post has been translated into Basque language as Processos constituents al món eztabaida ziklo saioan izan gara. Mila esker, Idoia

If you need to cite this article in a formal way (i.e. for bibliographical purposes) I dare suggest:

Peña-López, I. (2017) “Constitutional processes in the world” In ICTlogy, #165, June 2017. Barcelona: ICTlogy.
Retrieved month dd, yyyy from http://ictlogy.net/review/?p=4532

ICTlogy Review

  • ISSN 1886-5208

Issues:

About Me

    I am Ismael Peña-López.

    I am professor at the School of Law and Political Science of the Open University of Catalonia, and researcher at the Internet Interdisciplinary Institute and the eLearn Center of that university. I am also the director of the Open Innovation project at Fundació Jaume Bofill.