Constitution-building is one of the most salient aspects of transitional processes, from war to peace or from authoritarian rule, in terms of establishing and strengthening democracy. This paper is part of a research project that aims to identify the circumstances under which constitution-building can strengthen democracy after violent conflict and during transitions from authoritarian rule. Previous research has indicated that the actions and relations of political elites from opposing political parties when making the constitution has bearing on the state of democracy post promulgation, but that the careful sequencing of public participation in the process can be of relevance as well. This paper conducts a systematic analysis of seven empirical cases and focuses the investigation to the type of constitution-building body that has been employed and to during what stage of the process the general public have been invited to participate. It concludes that popularly elected constitution-building bodies tend to include a broad range of political parties and that they, additionally, tend to have rules of procedure that encourage compromise and negotiation, whereas appointed bodies are dominated by one single party or one single person and do not have rules of procedure that necessitate compromise. The paper also discusses the potential need for political elites to have negotiated a number of baseline constitutional principles prior to inviting the general public to get involved in the constitution-building process, and concludes that this is an area of research in need of further in-depth empirical case-studies.
It could be argued that since the dawn of the peace-building era in the early 1990s, public participation in constitution-making processes has developed into a transnational legal norm. International organizations, NGOs, CSOs, scholars and think tanks around the globe repeatedly stress the value of including ordinary citizens in the making of their founding laws. As a consequence, the practice of participatory constitution-making has also increased. Though this is a seemingly established transnational legal norm, it is still a norm that has been more or less successfully adopted in different contexts. This article takes an interest in exploring why this is so. How is it that this norm is institutionalized in some contexts, internalized in others, institutionalized and internalized in yet other contexts, and simply rejected in still other contexts?
Participatory constitution-building is a trend that appears to be here to stay; particularly when new constitutions are drafted in the aftermath of war or during transitions from authoritarian to democratic rule. Anticipations as to what the involvement of the public will achieve are several, and scholars are only recently starting to systematically investigate whether or not these expectations find empirical support. Previous research has shown that public participation in the making of the constitution can have certain positive effects at an individual level of analysis, but that the actions of political elites during constitutional negotiations might affect outcomes at a macro level of analysis more than what has hitherto be acknowledged in this strand of research. Nepal is one of the most recent cases of participatory constitution-building, and the country carried out not only one, but two, such processes within a time period of only seven years. The first resulted in failure as a draft constitution was never finalized; the other in success with the adoption of a constitution in 2015. This article takes an interest in exploring and comparing these two separate processes as regards the extent of public participation vis-à-vis political elite negotiations and bargaining behind closed doors. The article finds that what primarily sets the two processes apart, is how broad based public participation and secluded elite negotiations were sequenced. In light of other empirical examples, the article also discusses if elite bargains ought to be struck before the general public are invited to participate.
Participatory constitution-building during times of transition from war to peace or from authoritarian to democratic rule is quickly becoming an established norm. This article analyzes and compares two Fijian participatory processes; the 1993–1997 process and the 2012–2013 process. The purpose of doing so is to understand the extent to which these processes were genuinely participatory in terms of extending the Fijians’ possibility of influencing the content of the constitution. The article concludes that these processes were merely symbolic in terms of public participation; that there is not much that public participation can achieve in and by itself; and that the sequencing of public participation and secluded political elite negotiations in the context of constitution-building during times of transition is a field of research that is in dire need of further systematic analysis, particularly as an increasing amount of post-conflict and post-authoritarian states endeavor participatory constitution-building.
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