by Dr Anna Dziedzic
Alexander Hudson’s book The Veil of Participation: Citizens and Political Parties in Constitution-Making Processes inspires a great deal of self-reflection by those of us who study public participation in our scholarship and advise on constitution-making processes in practice. The book makes a compelling case that public participation during a constitution making process has only a limited impact on the content of the final constitution. Hudson identifies the role of political parties as a factor, and shows that the impact of public participation is likely to be lessened where there are strong political parties engaged in the process. As he explains, this is not necessarily a bad thing. In some circumstances, political parties are ideally placed to gather and aggregate the views of the people and translate them into constitutional terms. But this is not true in all contexts: political parties may be weak or corrupt, they may be distrusted, or they may not be willing actors in the process of constitutional change.
In these circumstances, more may be asked of the public through direct participation in the constitution-making process. Although increasingly commonplace in constitution making processes, the evidence on the effectiveness of public participation is mixed. Hudson’s book makes an important contribution to this evidence base, sounding notes of caution against over-promising on the impact that public feedback has on the final constitutional text.
The literature also raises concerns about how best to design a process for public participation, taking account of a diverse range of contextual issues such as the public’s level of constitutional literacy, the accessibility of the process so that it is inclusive of all groups and not just self-selected elites, and the risk of political manipulation.
In the final chapter, the book presents points of guidance for constitution makers. Of these, the most compelling, in my view, is the call for constitution makers to be clear about the purpose of public participation. The book provides evidence that commonly-used processes for public participation do not really work to generate substantive input on the text of the constitution. What might be done differently, if the goal of public participation is to enable the public to have a say about the content of the constitution? Public participation is very often framed as consultation, a one-way form of communication in which the public provide information to constitution makers who then do what they want with it. It might be contrasted to deliberation, in which constitution makers and the public (or representatives of the public) work together to solve a particular constitutional issue. Deliberative forms of public participation look very different to consultation – the mechanisms are different, as is the degree of control over the process, its transparency and accountability.
The purpose of public participation may be something different altogether. One common claim is that public participation has a legitimating effect, because it generates a sense of national ownership of the constitution. Again, do common processes for public participation achieve this? This question was outside the scope of The Veil of Participation. However, Hudson’s analysis of the case studies raises concerns here too, including about the ways in which public participation may not be inclusive, because it privileges those with the time, resources and expertise to make submissions or provide feedback in other ways. Despite their own shortcomings, perhaps a referendum of all people rather than consultation with a self-selected few might meet the requirements of legitimacy better.
Finally, in thinking about the implications of the book’s findings for the practical task of constitution making, it is important to acknowledge the diversity of actors involved in constitution making, within the country engaged in constitutional change (from the formal constitution making body, to the political parties and NGOs that mediate between it and the public) as well as external advisers and donors. In some countries, external actors have played a central role to help domestic institutions to fund and administer processes for public participation in constitution making. For this reason, the practical implications of this book are as applicable to external actors as they are to governments, and local political parties and elites managing the constitution-making process.
Dr Anna Dziedzic is Programme Officer, Constitution Building Processes in International IDEA’s regional office for Asia and the Pacific. The views expressed here are my own and do not necessarily represent the views of International IDEA.