Our colleague Vivien Hart, a pioneer in thinking about how the process of making constitutions relates to the consolidation of democracy and human rights, recently passed away.
A professor of American studies at the University of Sussex since 1996 and director of the University's Cunliffe Centre for the Study of Constitutionalism and National Identity since 1991, Hart focused her research on the potential for constitutions to facilitate dialogue and to transform conflict in divided societies. Hart is the author of Bound by Our Constitution: Women, Workers, and the Minimum Wage; Writing a National Identity: Political, Economic, and Cultural Perspectives on the Written Constitution (edited with Shannon C. Stimson); and Distrust and Democracy: Political Distrust in Britain and America. Her USIP Special Report, Democratic Constitution Making, can be found at http://www.usip.org/pubs/specialreports/sr107.html
Vivien's examination of modern constitution making led her to conclude:
"Today's framers seek to build new practices. Recent constitution-making processes have been accompanied by massive efforts to involve the public before, during, and after the text is finalized. Examples of new practice include: prior agreement on broad principles as a first phase of constitution making; an interim constitution to create space for longer term democratic deliberation; civic education and media campaigns; the creation and guarantee of channels of communication, right down to local discussion forums; elections for constitution-making assemblies; open drafting committees aspiring to transparency of decision making; and approval by various combinations of representative legislatures, courts, and referendums"
These innovations have suffused new constitution making processesaas part of a larger trend of democratization around the world. The impact of these changes, however, remains far from certain. There are problems of implementation - many of the public consultation efforts appear to be more for show than for meaningful public input. But even where there is a genuine effort, this opening of a once elite sphere for public contest has also brought its own complications, as Vivien noted:
"There is no simple transition to a new constitutionalism. Control of the process and of the ultimate distribution of power is at stake and participatory constitution making remains highly controversial. Constitution making has not been made easier, and by no means all of these innovations, nor of the constitutions that result, have been successful. But the process does move incrementally closer to the needs of the present day."
Although Hart wrote about an "emerging right" under international law to participation, ultimately the heart of her argument about participation was utilitarian, arguing that a lack of public participation in an era of democratic expectations would undermine consensus and constitutional stability:
"It is in such an environment of conversational constitutionalism that the issue (startling to some traditionalists) of a right to participate in making a constitution has arisen. The idea is hotly contested by those who argue that only elites in modern societies possess the moderation, technical expertise, negotiating skills, ability to maintain confidentiality, and above all rational incentives to compromise so as to maintain power that make for effective constitution making. But it is hard to argue against democracy. The elite-made constitution, according to the new paradigm, will lack the crucial cultural element of legitimacy. It will do so because the process, not just the final text, is seen as flawed."
Hart drew seven lessons from her review of recent experiments in constitution making:
- Multiple circumstances—economic, social, cultural, and the level of violence—affect the possibility of participatory constitution making.
- If it comes to a crunch, power still trumps participation (very obviously in Zimbabwe but also in societies making a fresh start, where the playing field might seem more even, as in East Timor).
- Elites still set the agenda for constitution making.
- The constitutions that result from high levels of participation still look very familiar, as the traditional genre with its categories of bills of rights and institutional architecture still predominates.
- The constitution-making process has been opened up to expectations of participation that derive from international law and from political practice.
- Participation makes a difference, especially insofar as it creates a better educated public.
- A committed elite such as that in South Africa may guide an educational process in ways that raise the standard of participatory democracy.