Constitutional review body must prioritise inclusivity

OPINION:THE TAOISEACH has announced that Ireland is going to have a “constitutional convention”, which will examine the options for reform on a range of issues: review of the electoral system; reducing the presidential term to five years and aligning it with local and European elections; giving citizens abroad the vote in presidential elections; same-sex marriage; amending the clause on women in the home and encouraging their greater participation in public life and politics; removing blasphemy from the Constitution; and reducing the voting age to 17.

Drawing on comparative experience, Ireland’s “constitutional moment” is an ideal opportunity to promote public participation in the process, renew a commitment to democratic engagement by citizens, as well as a national conversation on the kind of Ireland citizens want to live in.

International comparative experience indicates that there is no blueprint for making or reforming a constitution.

But, there is much to be learned from over two decades of experience of other states. From Afghanistan to South Africa, Iceland to Kenya, a study of the underlying principles used to guide reform processes provides insights into the aspirations, accommodations and expectations involved. Insights that can help to guide decision-makers around pitfalls to be avoided when designing their own processes.

International analysts as well as constitution-makers and the UN have argued that the process of making the constitution is as important as the content of the reforms, and have identified several important principles underlying meaningful constitutional reform. They include the need to promote greater public participation, meaningful representation and inclusion, particularly among vulnerable people on the margins of society, to construct an open and transparent process and to foster a sense of national ownership in the project as a whole.

A truly inclusive approach draws all key stakeholders in. Efforts must be made to engage meaningfully with more marginalised sectors of society including women, young people, people with disabilities, ethnic and religious minorities, disadvantaged groups, migrants and non-citizen actors.

Over the last two decades, the forms of participation in constitution-making processes have gone beyond the traditional methods of voting for representatives or in a referendum. Official participation opportunities now include civic education and public information campaigns; widespread public consultation, which can occur at several stages of the process; the serious consideration of the views of the public; the promotion of national dialogue; and implementation efforts post-adoption of the constitution.

With regard to representation, some recent constitutional processes have undertaken special measures for minorities or other groups – some legal frameworks ensured that women were represented by at least 25 per cent in constitutional bodies, while Afghanistan’s constitutional Loya Jirga even set aside three seats for Sikhs.

Transparency is key to the process – a significant contrast with the making of constitutions behind closed doors by elite elements that was common even into the 1970s and 1980s. A transparent process enables the public and civil society to participate by establishing a clear legal framework for the process and a roadmap for how it will operate. In such a scenario, the public is informed about how the process will be conducted, the modes of appointment and election of their representatives, the adoption process and their role in the process.