Public debate a vital part of constitutional reform process

Constitutional reform is a valuable opportunity for public debate on the sort of society and values citizens aspire to. By Peader Kirby and Mary P. Murphy.

The March 2011 Programme for Government promised a constitutional convention “to consider comprehensive constitutional reform” and to report within 12 months. Yet the virtual silence on the idea in the intervening period sends signals that rewriting our Constitution is seen as being of little importance to government and opposition alike.

A recent announcement that the Government would consult with opposition parties about the convention at last promises some action. Debate is therefore urgently needed to ensure wide input into the process and that the lessons from elsewhere are fully considered.

Recent examples from other countries show that the process of how constitutions were rewritten has proven to be a valuable opportunity for widespread public debate on the sort of values and society citizens aspire to and want reflected in their constitution. A key lesson therefore is that the process helps determine what sort of constitution emerges.

All we have to go on so far are the proposals of the two Government parties at the last general election. Fine Gael favoured a national constitution day where a series of constitutional amendments would be put to the electorate. Labour, on the other hand, committed to establishing “an open and participative Constitutional Convention, drawing on the best international experiences, to bring together our society’s skills to…let the Irish people design the Republic they want.”

Although it is not made clear how they would be selected, it proposes a convention of 90 members, one-third of which would be members of the Oireachtas, one-third experts and civil society representatives, and one-third citizens randomly selected from the electoral register.

We have been given no idea which of these approaches may win favour with the Government. A recent initiative entitled We the Citizens, led by a group of political scientists and funded by Atlantic Philanthropies, promoted the approach of a citizens’ assembly randomly chosen from the electoral register.

A campaign group called Second Republic argued that such an assembly, with the assistance of expert input, would be asked to bring forward proposals for constitutional reform within 12 months. Government would then be obliged within six months to put these proposals to a binding referendum.

Yet, as the final report of We the Citizens stated, citizens’ assemblies are most effective when tasked with single-issue projects such as electoral reform. Asking a citizens’ assembly made up of randomly chosen citizens to undertake a wider review of the Constitution raises grounds for concern.

It is possible to have successful citizens’ assemblies but failed referendum debates. A citizens’ assembly proposal for electoral reform in British Columbia in 2004 won 57% of public support but failed to get the required 60% threshold in a referendum. In Ontario, a citizens’ assembly proposal on the same topic won only 37% support in a 2007 referendum. Citizens were not sufficiently aware of the proposals and parties failed to play a campaigning role.

By contrast, over the past decade new constitutions have been written in Venezuela, Bolivia and Ecuador that were decisively approved in referendums. Instead of randomly selected citizens’ assemblies, these proposals were drawn up by constituent assemblies which themselves were popularly elected.

In these cases, governing parties all dominated the constituent assemblies, but some attempts were made to include representatives of various civil society organisations among the candidates or participants of the ruling parties.

In Ecuador, for example, ecologists, representatives of the women’s movement, progressive church people, and experienced social activists were elected to the constitutional convention under the banner of the newly constituted Allianza País party of recently elected President Rafael Correa.

Furthermore, the constituent assemblies facilitated the participation of a range of social movements. In the Venezuelan case, women’s organisations proposed articles on reproductive and sexual rights, while human rights activists helped ensure that a broad conception of human rights was included in the new constitution.

In Bolivia and Ecuador especially, indigenous groups ensured that it was not only their own territorial and legal rights that were recognised but innovative rights such as conferring rights on nature itself.

Iceland, on the other hand, decided to elect a constituent assembly that bypassed the political parties because of strong popular hostility to those parties following the financial crash in 2008.

Instead a complex process allowed citizens to be nominated for election with the support of between 30 and 50 sponsors. The fact that 522 candidates presented themselves surprised observers, though only 36.8% of the electorate voted (compared to the 85.1% that had voted in the 2009 general election).

The process resulted in an assembly more representative of civil society than of the country’s political parties. A one-day National Forum of 950 citizens chosen randomly from the electoral register gave detailed inputs to its deliberations. Citizens could also follow the assembly’s deliberations online and make recommendations on specific points, while a mechanism was put in place to ensure that such recommendations received active consideration.

All these processes involved extensive public consultation. In each of them, the constitution that resulted was broadly progressive, guaranteeing a range of not just civil but also social and cultural rights, as well as introducing innovative environmental rights in the cases of Bolivia and Ecuador.

In the case of Venezuela, the new constitution has become a popular document, sold at street kiosks and carried around in paperback format by citizens who refer to it to claim rights from the state. Each of the Latin American cases has also introduced a range of democratic mechanisms to enhance greater accountability by public officials, including the possibility of revocatory elections, while in Iceland provision has been made for referendums if requested by 10% of voters.

Our Government therefore has much to consider. Active public debate about how we want to go about rewriting our Constitution is an essential part of the process.

Peadar Kirby is Professor of International Politics and Public Policy in the University of Limerick and Mary P. Murphy is a lecturer in politics in NUI Maynooth. They are co-authors of the recently published Towards a Second Republic: Irish Politics after the Celtic Tiger (Pluto Ireland).