PARTICIPATORY CONSTITUTIONAL REFORM

Legal Memorandum

April 2012

PARTICIPATORY CONSTITUTIONAL REFORM

Executive Summary The purpose of this memorandum is to outline the mechanisms adopted by states to facilitate public participation in recent constitutional drafting and reform processes. Public engagement can increase the accountability, transparency, and legitimacy of these processes.

Constitutional processes vary in the type and number of mechanisms for public participation. These mechanisms include: (1) opportunities for the public to consult or comment during the formulation of constitutional reforms; (2) measures that educate the public about constitutional issues; and (3) ultimate authority to accept or reject constitutional change. Government and civil society often cooperate to develop, implement and oversee participatory mechanisms.

This memorandum explores a range of approaches to public participation

taken by countries at various stages of democratic and constitutional development. In Iceland, for instance, groups of ordinary citizens played a pivotal role in initiating and planning for a new constitution. Albania and South Africa both created institutions to coordinate public awareness and consultation, and submitted the final draft constitution to a popular referendum. Poland allowed very large groups to submit draft constitutions for consideration by the Constitutional Committee, which wrote the final draft and subjected it to a referendum. In Belgium, a preliminary parliamentary vote on constitutional reform automatically triggered elections. Citizens used these elections as a referendum on the constitutional reform, removing or retaining politicians based on their votes.

Participatory mechanisms often correlate to the state’s particular challenges.

Relatively new democracies, such as Albania and South Africa, found it useful to provide highly elaborate, state-driven participation mechanisms. Entrenched democracies like Belgium and Iceland could rely more on civil society and the established democratic process. In nearly all states, particularly those with oppressive histories, skeptics criticized, opposed, or even attempted to subvert participatory mechanisms. State practice demonstrates that it is often important to publicly address the legitimate concerns of skeptics in order to legitimize the constitution.

TABLE OF CONTENTS Statement of Purpose 1 Introduction 1 Iceland 2 Public Consultation 2 Public Education 3 Public Consent 4 Future Reforms 4 South Africa 4 Public Consultation 5 Public Education 6 Public Consent 7 Future Reforms 8 Albania 9 Public Consultation 9 Public Education 10 Public Consent 11 Future Reforms 12 Poland 12 Public Consultation 13 Public Education 14 Public Consent 15 Future Reforms 15 Belgium 16 Public Consultation 17 Public Education 17 Public Consent 18 Future Reforms 18 Conclusion 18

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PARTICIPATORY CONSTITUTION REFORM Statement of Purpose The purpose of this memorandum is to outline the mechanisms adopted by selected states to facilitate public participation in recent constitutional drafting and reform processes. Introduction

States undertake constitutional reform processes for a variety of reasons. Some long-established states reform their constitutions to create more effective government, while new and emerging states seek to transition beyond a period of authoritarian rule toward a system of democratic governance.1 Some states seek to reform the constitution to reduce ethnic or regional tensions,2 while others merely seek to adjust an inflexible constitution to changing circumstances.3 The participation of citizens in constitutional reform increases the popular legitimacy of reform efforts, reestablishes public trust in the government, and empowers citizens with a sense of ownership over their constitution.4

This memorandum explores the wide range of approaches to public

participation taken by Iceland, South Africa, Albania, Poland and Belgium. Each state’s unique circumstances and participatory mechanisms are presented, as well as any provisions for future constitutional reform. States generally employ three types of participatory mechanisms. First, public consultation mechanisms are opportunities for members of the public to provide input or criticism during the constitutional drafting and reform process. Second, public education mechanisms are ways to increase public awareness and understanding of both substantive and procedural constitutional reform issues. Third, public consent mechanisms are opportunities for the public to definitively accept or reject constitutional proposals, such as referendums. Effective public participation mechanisms often require

1 Mark P. Jones, Assessing the Public’s Understanding of Constitutional Reform: Evidence from Argentina, 18 POLITICAL BEHAVIOR 25, 25 (1996), available at http://www.jstor.org.proxyau.wrlc.org/stable/586510. 2 James M. Buchanan, Federalism As An Ideal Political Order and an Objective for Constitutional Reform, 25 PUBLIUS 19, 23 (1995), available at http://publius.oxfordjournals.org/content/25/2/19.abstract; see also Robert Mnookin and Alain Verbeke, Persistent Nonviolent Conflict with No Reconciliation: The Flemish and Walloons in Belgium, 72 LAW & CONTEMPORARY PROBLEMS 151, 175 (2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1750752. 3 James L. Sundquist, CONSTITUTIONAL REFORM AND EFFECTIVE GOVERNMENT, 2 (1992). 4 Björn Dressel, Strengthening Governance Through Constitutional Reform, ASIAN DEVELOPMENT BANK, 2 (2005), available at http://www.adb.org/documents/periodicals/gb/GovernanceBrief13.pdf.

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government collaboration and buy-in. Often, the state and civil society operate in tandem to maximize public participation. Iceland Iceland’s constitution drafting process was initiated and largely driven by the citizenry, which enjoyed the direct support of Iceland’s prime minister. Iceland began to draft a new constitution in response to the 2008 economic collapse, which magnified public discontent with government management.5 Icelanders had long regarded their constitution as somewhat provisional, because it was adopted solely to render Iceland autonomous from Denmark in the emergency circumstance of World War II.6 The constitution essentially duplicated the Danish constitution from that period, and did not reflect Icelandic priorities or values.7 Prominent political and intellectual figures, including Prime Minister Johanna Sigurdardottir, had been advocating for constitutional change for years.8 After the economic crisis, Iceland created a highly participatory constitution drafting process, in which arbitrarily selected panels of citizens generated themes and ideas. The small and densely concentrated population used public gatherings and social media to give input, exchange information, and provide feedback during the drafting process. This approach provided a high level of transparency and accessibility.

Public Consultation

Citizens drove the constitutional reform process almost entirely. In 2009, a grassroots effort called the Anthill movement organized a National Assembly to discuss and identify the key themes and values to incorporate into the new constitution.9 The Anthill movement randomly selected 1,200 participants from the Icelandic census to participate along with 300 representatives of political

5 Paul Blokker, Grassroots Constitutional Politics in Iceland, 4 (January 16, 2012), available at http://ssrn.com/abstract=1990463. 6 Paul Blokker, Grassroots Constitutional Politics in Iceland, 4 (January 16, 2012), available at http://ssrn.com/abstract=1990463. 7 Paul Blokker, Grassroots Constitutional Politics in Iceland, 4 (January 16, 2012), available at http://ssrn.com/abstract=1990463. 8 Paul Blokker, Grassroots Constitutional Politics in Iceland, 5 (January 16, 2012), available at http://ssrn.com/abstract=1990463. 9 Paul Blokker, Grassroots Constitutional Politics in Iceland, 4 (January 16, 2012), available at http://ssrn.com/abstract=1990463.

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groups.10 The National Assembly consisted of small group meetings and a plenary session where participants voted on central themes and values.11

In 2010, the Icelandic parliament adopted the Act on the Constitutional Assembly (ACA), which provided for a “Constitutional Gathering” followed by a popular election of seven “Constitutional Council” members who would draft the new constitution.12 The ACA described the Constitutional Gathering as a one-day participatory event that would “call for the principal viewpoints and points of emphasis of the public concerning the organization of the country’s government and its constitution.”13 Civil society organizations played a large role in coordinating the event, which convened 950 randomly selected citizens to participate in 128 roundtable discussions. In the end, the participants identified eight themes for the new constitution, which largely echoed the National Assembly list of themes.14 The following day, 37% of the electorate chose 25 of 522 self-nominated candidates for the Constitutional Council.15 The election rules forbade politicians from participating and limited campaign spending to EU12.5.16 Skeptics publicly decried the voting procedures and low turnout, leading parliament to repeal the ACA and install a parliament-appointed Constitutional Council.17

Public Education Civil society groups and individual activists made extensive use of social media, such as Facebook, to raise awareness about the constitutional reform

10 Paul Blokker, Grassroots Constitutional Politics in Iceland, 5 (January 16, 2012), available at http://ssrn.com/abstract=1990463. 11 The nine elected themes are (1) education, (2) economy, (3) equal rights, (4) family, (5) environment, (6) public administration, (7) welfare, (8) sustainability, and (9) opportunities. The four elected core values are (1) integrity, (2) equal rights, (3) justice, and (4) respect. 12 Paul Blokker, Grassroots Constitutional Politics in Iceland, 6 (January 16, 2012), available at http://ssrn.com/abstract=1990463. 13 Paul Blokker, Grassroots Constitutional Politics in Iceland, 6 (January 16, 2012), available at http://ssrn.com/abstract=1990463. 14 The eight chosen themes are (1) country, (2) morality, (3) human rights, (4) justice and equality, (5) the “nature of Iceland”, (6) conservation, (7) democracy, and (8) division of power, responsibility and transparency, and peace and international cooperation. 15 Paul Blokker, Grassroots Constitutional Politics in Iceland, 7 (January 16, 2012), available at http://ssrn.com/abstract=1990463. 16 Paul Blokker, Grassroots Constitutional Politics in Iceland, 7 (January 16, 2012), available at http://ssrn.com/abstract=1990463. 17 Paul Blokker, Grassroots Constitutional Politics in Iceland, 7 (January 16, 2012), available at http://ssrn.com/abstract=1990463.

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process.18 Prominent advocates of reform included well-known musicians and digital entrepreneurs, who could easily generate publicity and interest.19 The size and concentration of the population probably contributed to widespread awareness.

Public Consent While the current constitution does not require a referendum to adopt a new constitution, the Constitutional Council recommended that the public vote on the draft constitution. The Icelandic parliament must approve the draft, which will trigger a parliamentary election. The newly elected parliament must then approve the constitution in order for it to take effect. Parliament will probably debate and vote on the draft in late 2012.20

Future Reforms The draft constitution emphasizes public participation in future reforms, requiring all constitutional amendments to be submitted to a popular referendum.21

Iceland undertook a highly innovative and participatory constitutional drafting process. At nearly every stage, randomly chosen representatives of the general population participated in shaping the constitution’s substance. Although the Constitutional Council was ultimately appointed rather than elected, Icelandic citizens successfully used social media and public forums to shape the content of their governing document. South Africa

The South African constitutional drafting process engaged the public in many innovative ways. South Africa’s constitution developed over an eight-year period as the country transitioned from apartheid to multiethnic democracy.22 An

18 Elizabeth Flock, Iceland Crowdsources its Next Constitution, THE WASHINGTON POST, June 10, 2011, available at http://www.washingtonpost.com/blogs/blogpost/post/iceland-crowdsources-its-next-constitution/2011/06/10/AGiBplOH_blog.html. 19 Paul Blokker, Grassroots Constitutional Politics in Iceland, 4 (January 16, 2012), available at http://ssrn.com/abstract=1990463. 20 Paul Blokker, Grassroots Constitutional Politics in Iceland, 9 (January 16, 2012), available at http://ssrn.com/abstract=1990463. 21 Paul Blokker, Grassroots Constitutional Politics in Iceland, 8 (January 16, 2012), available at http://ssrn.com/abstract=1990463. 22 Zyad Motala, Constitution Making in Divided Societies and Legitimacy: Lessons from the South African Experience, 15 TEMPLE POLITICAL AND CIVIL RIGHTS LAW REVIEW 147, 147-48 (2005), available at http://heinonline.org/HOL/Page?handle=hein.journals/tempcr15&div=11&g_sent=1&collection=journals.

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interim constitution established the Government of National Unity and tasked a Constitutional Assembly with drafting and approving a permanent constitution.23 South Africa’s major constitutional drafting challenge was to engage the majority population, who were new to the democratic process, while addressing the legitimate concerns of the minority.24 The Constitutional Assembly also stated the unification of the South African people as a goal of the process.25

Public Consultation

The Constitutional Assembly that took power after the 1994 elections instituted a public participation program at the outset, based on the principles of inclusivity, accessibility, and transparency.26

The Constitutional Assembly held thousands of local, interactive meetings

that allowed the public to provide input and voice concerns.27 Most of these meetings took place in rural areas and disadvantaged communities with limited access to media.28 In these forums, local residents and representatives from major political parties interacted peacefully despite their history of conflict. Previously disenfranchised South Africans heard their questions and suggestions about the future of the country discussed by political leaders.29 Though attendance rates were low, the initiative nonetheless reinforced the notion that the constitution concerns society’s basic values and should be understood by all citizens, especially the least educated.30

After the distribution of a revised draft of the constitution, South Africa had a three-month period of public debate during which members of the public were invited to submit proposals.31 Skeptical commentators dismissed the exercise as a

23 United States Department of State, Background Note: South Africa, (June 2, 2011), available at http://www.state.gov/r/pa/ei/bgn/2898.htm. 24 Hassan Ebrahim, THE SOUL OF A NATION 241 (1998). 25 Hassan Ebrahim, THE SOUL OF A NATION 241 (1998). 26 Catherfine Barnes and Eldred De Klerk, South Africa’s Multi-Party Constitutional Negotiation Process, CONCILIATION RESOURCES (2002), available at http://www.c-r.org/our-work/accord/public-participation/southafrica-multiparty-process.php. 27 Catherine Barnes and Eldred De Klerk, South Africa’s Multi-Party Constitutional Negotiation Process, CONCILIATION RESOURCES (2002), available at http://www.c-r.org/our-work/accord/public-participation/southafrica-multiparty-process.php.; Gregory F. Houston and Ian Liebenberg, PUBLIC PARTICIPATION IN DEMOCRATIC GOVERNANCE IN SOUTH AFRICA 8 (2001) (stating that thousands of such meetings were held). 28 Hassan Ebrahim, THE SOUL OF A NATION 244 (1998). 29 Hassan Ebrahim, THE SOUL OF A NATION 245 (1998). 30 Hassan Ebrahim, THE SOUL OF A NATION 245 (1998). 31 Hassan Ebrahim, THE SOUL OF A NATION 247 (1998).

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public relations stunt or even an elaborate hoax.32 They observed that the enormous volume of submissions made them impractical to review, and that many submissions were vague or addressed issues beyond the scope of the constitution.33 Despite this skepticism, 250,000 additional submissions and petitions were received during the debate period.34 To quell concerns that it was disregarding public submissions, the Constitutional Assembly published a draft constitution with references to public comments.35

Public Education

Extensive media outreach stimulated public interest in the constitutional development process.36 The Constitutional Assembly established an advertising campaign, which included the use of radio, television, local newspapers, billboards and the sides of buses.37 The primary objective of the campaign was to instill the message that the constitution would affect every South African’s life, including future generations, and to legitimize the process by stressing the Constitutional Assembly’s desire to involve the public.38 One of its main slogans was “you’ve made your mark, now have you say,” referring to both the preceding 1994 elections and the upcoming drafting of the constitution.39

Television and radio programs featured representatives of civil society and the Constitutional Assembly discussing the constitutional drafting process.40 Every week, radio broadcasts in eight languages reached 10 million South Africans, in both urban and rural areas.41 The Constitutional Assembly’s official bi-weekly

32 Christina Murray, A Constitutional Beginning: Making South Africa’s Final Constitution, 23 University of Arkansas Little Rock Law Review 809, 822 (2001). 33 Christina Murray, A Constitutional Beginning: Making South Africa’s Final Constitution, 23 University of Arkansas Little Rock Law Review 809, 822 (2001). 34 Hassan Ebrahim, THE SOUL OF A NATION 247-48 (1998). 35 Jeremy Sarkin, The Drafting of South Africa’s Final Constitution from a Human-Rights Perspective, 47 THE AMERICAN JOURNAL OF COMPARATIVE LAW 67, 72 (1999). 36 Catherine Barnes and Eldred De Klerk, South Africa’s Multi-Party Constitutional Negotiation Process, CONCILIATION RESOURCES (2002), available at http://www.c-r.org/our-work/accord/public-participation/southafrica-multiparty-process.php. 37 Hassan Ebrahim, THE SOUL OF A NATION 242-43 (1998). 38 Catherine Barnes and Eldred De Klerk, South Africa’s Multi-Party Constitutional Negotiation Process, CONCILIATION RESOURCES (2002), available at http://www.c-r.org/our-work/accord/public-participation/southafrica-multiparty-process.php. 39 Saras Jagwanth, Democracy, Civil Society and the South African Constitution: Some Challenges, MOST PROGRAMME, UNITED NATIONS EDUCATIONAL, SCIENTIFIC AND CULTURAL ORGANIZATION, 9 (2003), available at unesdoc.unesco.org/images/0012/001295/129557e.pdf. 40 Hassan Ebrahim, THE SOUL OF A NATION 246 (1998). 41 Saras Jagwanth, Democracy, Civil Society and the South African Constitution: Some Challenges, MOST PROGRAMME, UNITED NATIONS EDUCATIONAL, SCIENTIFIC AND CULTURAL ORGANIZATION, 10 (2003).

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newsletter developed a circulation of 160,000 people.42 The Assembly also established a constitutional phone line that enabled callers to leave messages to request information or make suggestions, or simply listen to an up-to-date briefing on the constitutional process.43 Finally, the Assembly’s drafting process was one of the first to make wide use of the Internet, setting up a website which contained a broad database of information, including minutes, drafts, opinions and submissions of the Constitutional Assembly.44

Retrospective studies of these campaigns reveal mixed results of these efforts, in particular at reaching rural, elderly, and less educated citizens.45 These studies also revealed pervasive skepticism about the Constitutional Assembly’s willingness to genuinely involve the public.46 Nonetheless, the awareness campaign was able to reach 65% of all adult South Africans and nearly 1.7 million petitions and submissions were received with ideas and suggestions for the new constitution.47

In the final stage of the program, a strategy was developed to ensure that all South Africans would be able to access and comprehend the new constitution, especially the historically disadvantaged sectors of society. In the month after its entry into force, the Constitutional Assembly distributed seven million copies of the constitution in all eleven official languages.48 The strategy included distributing copies to schools, post offices, the police, the military, prisons, and various civil organizations.49

Public Consent Under the adopted negotiation process, South Africa’s draft constitution had

to be (1) approved by two-thirds of the Constitutional Assembly, or (2) approved by a majority of the Constitutional Assembly and 60% of voters in a national 42 Saras Jagwanth, Democracy, Civil Society and the South African Constitution: Some Challenges, MOST PROGRAMME, UNITED NATIONS EDUCATIONAL, SCIENTIFIC AND CULTURAL ORGANIZATION, 10 (2003). 43 Hassan Ebrahim, THE SOUL OF A NATION 246 (1998). 44 Hassan Ebrahim, THE SOUL OF A NATION 246-47 (1998). 45 Hassan Ebrahim, Constitution-Making in South Africa: A Case Study, THE INDEPENDENT FEDERAL CONSTITUTION COMMISSION OF SOMALIA 24 (1999), available at http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCEQFjAA&url=http%3A%2F%2Fwww.dastuur.org%2Findex.php%3Foption%3Dcom_docman%26task%3Ddoc_download%26gid%3D76%26Itemid%3D159&ei=vz7BTq-SFsbl0QHGhYVL&usg=AFQjCNHDqmKa6LNiDIVZnNaBqdQuhClU9A. 46 Hassan Ebrahim, Constitution-Making in South Africa: A Case Study, THE INDEPENDENT FEDERAL CONSTITUTION COMMISSION OF SOMALIA 13 (1999). 47 Vijayashri Sripati, Constitutionalism in India and South Africa: A Comparative Study from a Human Rights Perspective, 16 TULANE JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW 49, 85 (2007). 48 Hassan Ebrahim, THE SOUL OF A NATION 249 (1998). 49 Hassan Ebrahim, THE SOUL OF A NATION 249 (1998).

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referendum.50 The referendum thus served as a default mechanism in the event that negotiations failed to achieve broad consensus. However, the Constitutional Assembly succeeded in achieving an accord, and the referendum did not become necessary.51 Rather, the constitution was first approved by the Constitutional Assembly, then certified by the Constitutional Court, and ultimately signed into law by newly elected President Nelson Mandela in February of 1997.52

Future Reforms

Future reforms to the South African constitution do not require a popular referendum, but the support of democratically elected representatives.53 The level of necessary support depends on the nature of the constitutional revision. Amendments to section 1, which establishes the state’s sovereignty, democracy, and founding values, require the support of three-quarters of the National Assembly and six of the nine provinces.54 Amendments that affect the Bill of Rights or provincial powers or boundaries must have the support of two-thirds of the National Assembly and six provinces.55 All other amendments require the support of two-thirds of National Assembly. To date, South Africa adopted a total of sixteen amendments, including several that repealed previous amendments.56

South Africa’s constitutional drafting process employed a range of

participation and access initiatives to ensure a peaceful democratic transition and national reconciliation after a lengthy and divisive conflict. The program appears to have played a significant role in this successful transition, as its broad and continuous engagement of the public provided South Africans of all backgrounds with a sense of ownership of the new constitution.

50 Catherine Barnes and Eldred De Klerk, South Africa’s Multi-Party Constitutional Negotiation Process, 13 ACCORD 26, 31 (2002), available at http://www.c-r.org/accord-article/south-africa’s-multi-party-constitutional-negotiation-process. 51 Catherine Barnes and Eldred De Klerk, South Africa’s Multi-Party Constitutional Negotiation Process, 13 ACCORD 26, 31 (2002), available at http://www.c-r.org/accord-article/south-africa’s-multi-party-constitutional-negotiation-process. 52 United States Department of State, Background Note: South Africa, (June 2, 2011), available at http://www.state.gov/r/pa/ei/bgn/2898.htm. 53 SOUTH AFRICA CONST. art. 74 (1997). 54 SOUTH AFRICA CONST. art. 74(1) (1997). 55 SOUTH AFRICA CONST. art. 74(2)-(3) (1997). 56 SOUTH AFRICA CONST. amend. 1-16 (1997).

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Albania The Albanian constitutional drafting process provided for public consultation and education, as well as some measure of public consent. Albania began drafting a constitution in 1997 as part of its transition from communism to multi-party democracy.57 The process occurred amid an economic collapse, widespread civil unrest, political polarization, and an attempted military coup.58 In the face of these challenges, the new governing coalition used constitutional development as a way to reestablish civic participation and public confidence in government.59

Public Consultation

The parliamentary decision that launched the Constitutional Commission

recognized public participation as a top priority.60 This participation had two dimensions: (1) collecting public input before drafting the constitution, and (2) soliciting comments from the public on drafted provisions.61

To facilitate public participation, Parliament established the Administrative

Center for the Coordination of Assistance and Public Participation (ACCAPP), and tasked it with collecting public input, creating forums for public discussion, and liaising with NGOs.62 Although the ACCAPP enjoyed the cooperation and support of the government, it operated independently.63 The ACCAPP and NGOs organized over a dozen forums and symposia, collecting opinions on which issues were most important to the public, and organizing regional discussion groups

57 United States Department of State, Background Note: Albania, (Aug. 30, 2011), available at http://www.state.gov/r/pa/ei/bgn/3235.htm. 58 United States Department of State, Background Note: Albania, (Aug. 30, 2011), available at http://www.state.gov/r/pa/ei/bgn/3235.htm. 59 Scott N. Carlson, The Drafting Process for the 1998 Albanian Constitution, 8, available at http://www.constitutionnet.org/files/Albania%20The%20Drafting%20Process%20for%20the%201998%20Albanian%20Constitution,%20Scott%20Carlson.pdf. 60 Scott N. Carlson, The Drafting Process for the 1998 Albanian Constitution, 8. 61 United Nations Office of the High Commissioner for Human Rights, GOOD GOVERNANCE PRACTICES FOR THE PROTECTION OF HUMAN RIGHTS 18 (2007). 62 Scott N. Carlson, The Drafting Process for the 1998 Albanian Constitution, 10, available at http://www.constitutionnet.org/files/Albania%20The%20Drafting%20Process%20for%20the%201998%20Albanian%20Constitution,%20Scott%20Carlson.pdf. 63 Scott N. Carlson, The Drafting Process for the 1998 Albanian Constitution, 9-10, available at http://www.constitutionnet.org/files/Albania%20The%20Drafting%20Process%20for%20the%201998%20Albanian%20Constitution,%20Scott%20Carlson.pdf.

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throughout the state.64 While the ACCAPP worked with a wide variety of NGOs, the Society for Democratic Culture and certain other organizations assumed leadership roles.65 Through the efforts of the ACCAPP, the Constitutional Commission developed an extensive understanding of the public’s vision for a new constitution.66

After the Constitutional Commission produced a draft constitution, the

ACCAPP organized a series of public hearings where citizens offered hundreds of suggestions and criticisms.67 The ACCAPP indexed suggestions according to subject matter and the Commission ultimately accepted fifty. Their incorporation required revision of 25% of the constitution’s draft articles.68 Having gauged public opinion, the Commission revised the document and then put it forth it for a final layer of review by the public and by foreign constitutional experts.69

Public Education

From the outset of the reform process, Parliament tasked the ACCAPP with disseminating information and providing education about constitutional reform.70 In order to promote public understanding of the reform process, the ACCAPP worked with NGOs to produce television broadcasts, radio programs, and newsletters on constitutional topics.71 The ACCAPP also developed and

64 United Nations Office of the High Commissioner for Human Rights, GOOD GOVERNANCE PRACTICES FOR THE PROTECTION OF HUMAN RIGHTS 19 (2007), available at www.ohchr.org/Documents/Publications/GoodGovernance.pdf. 65 Scott N. Carlson, The Drafting Process for the 1998 Albanian Constitution, 15, available at (http://www.constitutionnet.org/files/Albania%20The%20Drafting%20Process%20for%20the%201998%20Albanian%20Constitution,%20Scott%20Carlson.pdf). 66 United Nations Office of the High Commissioner for Human Rights, GOOD GOVERNANCE PRACTICES FOR THE PROTECTION OF HUMAN RIGHTS 18 (2007), available at www.ohchr.org/Documents/Publications/GoodGovernance.pdf. 67 United Nations Office of the High Commissioner for Human Rights, GOOD GOVERNANCE PRACTICES FOR THE PROTECTION OF HUMAN RIGHTS 18 (2007), available at www.ohchr.org/Documents/Publications/GoodGovernance.pdf. 68 Scott N. Carlson, The Drafting Process for the 1998 Albanian Constitution, 14, available at (http://www.constitutionnet.org/files/Albania%20The%20Drafting%20Process%20for%20the%201998%20Albanian%20Constitution,%20Scott%20Carlson.pdf). 69 Scott N. Carlson, The Drafting Process for the 1998 Albanian Constitution, 12-13, available at (http://www.constitutionnet.org/files/Albania%20The%20Drafting%20Process%20for%20the%201998%20Albanian%20Constitution,%20Scott%20Carlson.pdf). 70 Scott N. Carlson, The Drafting Process for the 1998 Albanian Constitution, 10, available at http://www.constitutionnet.org/files/Albania%20The%20Drafting%20Process%20for%20the%201998%20Albanian%20Constitution,%20Scott%20Carlson.pdf. 71 United Nations Office of the High Commissioner for Human Rights, GOOD GOVERNANCE PRACTICES FOR THE PROTECTION OF HUMAN RIGHTS 19 (2007), available at www.ohchr.org/Documents/Publications/GoodGovernance.pdf.

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distributed brief “concept papers” that explained complex constitutional issues in simple terms.72

As the referendum approached, the ACCAPP also countered misinformation campaigns orchestrated by the constitution’s opponents by continuing to disseminate credible information to citizens of all political affiliations.73 The transparency of the process and accessibility of information weakened the attempts of opponents to provoke discord and political violence.74

Public Consent

In 1998, the Assembly approved the new constitution, based heavily on proposals from the public,75 and the government conducted a popular referendum to seek public approval for the document.76 Because the law required 50% turnout for a valid referendum, the opposition parties advocated a boycott in order to derail the process. To prevent an invalid referendum, the parliament repealed the minimum turnout requirement.77 The leading opposition party nonetheless continued to call for a boycott, and the official turnout was recorded at 50.57%.78 Over 93% of these voters approved the constitution, which was ratified six days later. 79 Although the boycott likely distorted the referendum result, Albania

72 United Nations Office of the High Commissioner for Human Rights, GOOD GOVERNANCE PRACTICES FOR THE PROTECTION OF HUMAN RIGHTS 19 (2007), available at www.ohchr.org/Documents/Publications/GoodGovernance.pdf. 73 United Nations Office of the High Commissioner for Human Rights, GOOD GOVERNANCE PRACTICES FOR THE PROTECTION OF HUMAN RIGHTS 19 (2007), available at www.ohchr.org/Documents/Publications/GoodGovernance.pdf. 74 United Nations Office of the High Commissioner for Human Rights, GOOD GOVERNANCE PRACTICES FOR THE PROTECTION OF HUMAN RIGHTS 20 (2007), available at www.ohchr.org/Documents/Publications/GoodGovernance.pdf. 75 Scott N. Carlson, The Drafting Process for the 1998 Albanian Constitution, 15, available at (http://www.constitutionnet.org/files/Albania%20The%20Drafting%20Process%20for%20the%201998%20Albanian%20Constitution,%20Scott%20Carlson.pdf). 76 Scott N. Carlson, The Drafting Process for the 1998 Albanian Constitution, 21, available at http://www.constitutionnet.org/files/Albania%20The%20Drafting%20Process%20for%20the%201998%20Albanian%20Constitution,%20Scott%20Carlson.pdf. 77 Organization for Security and Co-operation in Europe, Observation Mission: Joint Preliminary Statement Issued on 23 November 1998, 2-3 (Nov. 23, 1998), available at http://www.osce.org/odihr/elections/albania/13835. 78 Council of Europe Parliamentary Assembly, Addendum III to the Information Report on the Referendum in Albania, para. 55, Doc. 8292 (Jan. 26, 1999), available at http://assembly.coe.int/Main.asp?link=http://assembly.coe.int/Documents/WorkingDocs/doc99/edoc8292_add3.htm#P11_99. 79 Council of Europe Parliamentary Assembly, Addendum III to the Information Report on the Referendum in Albania, para. 55, Doc. 8292 (Jan. 26, 1999), available at http://assembly.coe.int/Main.asp?link=http://assembly.coe.int/Documents/WorkingDocs/doc99/edoc8292_add3.htm#P11_99.

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succeeded in conducting a peaceful constitutional referendum in an atmosphere of civic unrest and political polarization.80

Future Reforms

The Albanian constitution outlines the processes by which a future constitutional amendment is introduced and adopted.81 An initiative for revision may be submitted with the support of one-fifth of the members of the Assembly.82 The Assembly then has two paths to approve the amendment: (1) the Assembly may approve the amendment with a two-thirds vote of all members, or (2) the Assembly may decide by a two-thirds vote of all members to submit the proposed revision to a popular referendum.83 If the Assembly approves the amendment directly, a subsequent vote by one-fifth of all members may require the amendment to be submitted to a popular referendum.84 While the reform process provides for the possibility of a referendum, the Assembly has thus far approved constitutional amendments without using the referendum process.85 Albania took many steps to make the constitution drafting process accessible and transparent to the public. Due to extensive consultation and education campaigns, the state considered public priorities and preferences throughout the drafting process. These participatory mechanisms helped to legitimize the constitutional drafting process in an atmosphere of severe political turbulence, mistrust and polarization. Poland

The Polish constitutional reform process heavily involved “experts” from civil society and political parties, but had less engagement with ordinary citizens. Poland undertook constitutional reform in 1989, when the state began its transition from communist rule to multi-party democracy.86 An interim constitution came into effect in 1992, and the reform process lasted until 1997, when the current 80 Organization for Security and Co-operation in Europe, Observation Mission: Joint Preliminary Statement Issued on 23 November 1998, 1-2 (Nov. 23, 1998), available at http://www.osce.org/odihr/elections/albania/13835. 81 ALBANIA CONST. art. 177 (1998), available at http://www.president.al/english/pub/kushtetuta.asp. 82 ALBANIA CONST. art. 177 (1998). 83 ALBANIA CONST. art. 177 (1998). 84 ALBANIA CONST. art. 177 (1998). 85 Venice Commission, European Commission for Democracy Through Law, Amicus Curiae Brief for the Constitutional Court of Albania on the Admissibility of a Referendum to Abrogate Constitutional Amendments, 1 (March 13, 2009), available at http://www.venice.coe.int/docs/2009/CDL-AD(2009)007-e.pdf. 86 Ewa Popławska, Constitution-Making in Poland: Some Reflections on Popular Involvement, 45 JOURNAL OF THE SPLIT FACULTY OF LAW 279, 280 (2008).

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Polish constitution entered into force.87 Constitutionalism had centuries of history in Poland, but the communist regime had tarnished this by exploiting a superficially participatory constitution drafting process to claim a popular mandate.88 This background, as well as the history of falsified referenda to legitimize unpopular politicians during the Cold War, decreased public trust in constitutional processes.89 Moreover, mutual distrust between reformers and parties composed of former communists created an antagonistic political climate.90 While Parliament sought to legitimize the constitutional reform process by allowing large, organized groups to submit drafts, this primarily engaged political elites and experts rather than the broader public.91 Due to low turnout, a popular referendum also did little to confer legitimacy on the document.92

Public Consultation

A constitutional committee, comprised of members of the lower legislative

chamber, convened in 1990.93 The National Assembly established three subcommittees to address institution building, human rights and economics, and appointed experts to advise and support each subcommittee.94 While these experts had diverse backgrounds in human rights organizations, business, law faculties, and the Catholic Church, they did not represent the public in any systematic way.95 Particular concern arose among some reformers about the heavy involvement of

87 Polska: Official Promotional Website of the Republic of Poland, The Constitution, (2008), available at http://en.poland.gov.pl/The,Constitution,384.html. 88 Ewa Popławska, Constitution-Making in Poland: Some Reflections on Popular Involvement, 45 JOURNAL OF THE SPLIT FACULTY OF LAW 279, 284 (2008). 89 Ewa Popławska, Constitution-Making in Poland: Some Reflections on Popular Involvement, 45 JOURNAL OF THE SPLIT FACULTY OF LAW 279, 284 (2008). 90 Miroslaw Wyrzykowski, Legitimacy: The Price of a Delayed Constitution in Poland, in DEMOCRATIC CONSOLIDATION IN EASTERN EUROPE VOLUME 1: INSTITUTIONAL ENGINEERING, 431, 445-46 (Jan Zielonka, ed., 1st ed., 2001). 91 Miroslaw Wyrzykowski, Legitimacy: The Price of a Delayed Constitution in Poland, in DEMOCRATIC CONSOLIDATION IN EASTERN EUROPE VOLUME 1: INSTITUTIONAL ENGINEERING, 431, 446-47 (Jan Zielonka, ed., 1st ed., 2001). 92 Miroslaw Wyrzykowski, Legitimacy: The Price of a Delayed Constitution in Poland, in DEMOCRATIC CONSOLIDATION IN EASTERN EUROPE VOLUME 1: INSTITUTIONAL ENGINEERING, 431, 453 (Jan Zielonka, ed., 1st ed., 2001). 93 Ewa Popławska, Constitution-Making in Poland: Some Reflections on Popular Involvement, 45 JOURNAL OF THE SPLIT FACULTY OF LAW 279, 282 (2008). 94 Ewa Popławska, Constitution-Making in Poland: Some Reflections on Popular Involvement, 45 JOURNAL OF THE SPLIT FACULTY OF LAW 279, 282 (2008). 95 Ewa Popławska, Constitution-Making in Poland: Some Reflections on Popular Involvement, 45 JOURNAL OF THE SPLIT FACULTY OF LAW 279, 282 (2008).

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the Catholic Church.96 In practice, the committee largely delegated the drafting of the constitution to these experts.97

After a left-wing coalition won an overwhelming victory in the 1993

elections, defeated parties questioned the legitimacy of the new National Assembly in reforming the constitution, and argued for the inclusion of opposition parties in the reform process.98 In response, the National Assembly amended the law to allow a group of at least 500,000 eligible voters (approximately 1.3% of the population)99 to present a draft constitution for consideration by the Constitutional Committee.100 Solidarity, for example, submitted a draft with the support of over 900,000 citizens.101 Some observers have asserted that this process was effective in encouraging compromises in the constitution.102 Critics have claimed that, in practice, this policy only extended participation to additional political elites and experts, rather than the general public.103

Public Education The Polish government took few formal steps to educate the public about the constitutional reform process. However, national figures such as Lech Walesa, the Catholic Church, and interested citizens contributed to discourse about the process

96 Wojciech Sadurski, Constitutional Courts in the Process of Articulating Constitutional Rights in the Post-Communist States of Central & Eastern Europe, Part II, 13-14 (February, 2003), available at http://www.peacepalacelibrary.nl/ebooks/files/law03-1.pdf. 97 Ewa Popławska, Constitution-Making in Poland: Some Reflections on Popular Involvement, 45 JOURNAL OF THE SPLIT FACULTY OF LAW 279, 282 (2008). 98 Miroslaw Wyrzykowski, Legitimacy: The Price of a Delayed Constitution in Poland, in DEMOCRATIC CONSOLIDATION IN EASTERN EUROPE VOLUME 1: INSTITUTIONAL ENGINEERING, 431, 446-47 (Jan Zielonka, ed., 1st ed., 2001). 99 The 1997 population of Poland was approximately 38,660,000. Janusz Witkowski, Case Study: Poland, in EUROPE’S POPULATION AND LABOUR MARKET BEYOND 2000 VOLUME 2: COUNTRY CASE STUDIES 99, 102 (Aidan Punch and David L. Pearce, eds., English ed., 2000), available at http://books.google.com/books?ei=wYlsT_TFNOzq0QGNn8nnBg&sqi=2&id=B5NrqEgNTf0C&dq=europe%27s+population+and+labour+market+beyond+2000+volume+2&ots=LXEz84jQn_&q=38%2C659#v=onepage&q=38%2C659&f=false. 100 Miroslaw Wyrzykowski, Legitimacy: The Price of a Delayed Constitution in Poland, in DEMOCRATIC CONSOLIDATION IN EASTERN EUROPE VOLUME 1: INSTITUTIONAL ENGINEERING, 431, 446-47 (Jan Zielonka, ed., 1st ed., 2001). 101 Miroslaw Wyrzykowski, Legitimacy: The Price of a Delayed Constitution in Poland, in DEMOCRATIC CONSOLIDATION IN EASTERN EUROPE VOLUME 1: INSTITUTIONAL ENGINEERING, 431, 446-47 (Jan Zielonka, ed., 1st ed., 2001). 102 Miroslaw Wyrzykowski, Legitimacy: The Price of a Delayed Constitution in Poland, in DEMOCRATIC CONSOLIDATION IN EASTERN EUROPE VOLUME 1: INSTITUTIONAL ENGINEERING, 431, 448-49 (Jan Zielonka, ed., 1st ed., 2001). 103 Ewa Popławska, Constitution-Making in Poland: Some Reflections on Popular Involvement, 45 JOURNAL OF THE SPLIT FACULTY OF LAW 279, 282 (2008).

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that was disseminated through the media.104 In the polarized political climate, much of this coverage consisted of political figures vilifying the process and outcome as contrary to Polish tradition and religion.105

Public Consent

The referendum garnered a 43% voter turnout, of which a bare majority (52%) supported the constitution.106 Prior to the vote, the parliament had rejected requests by Solidarity to (1) require 50% turnout for a valid referendum, and (2) include the Solidarity-written constitution as a choice on the ballot.107 After the referendum, opponents contested the validity of the constitution in the media and in court on the grounds that less than one quarter of the electorate actually approved the supreme law of the land.108 Although the Supreme Court rejected the opposition claim as lacking any basis in law, the low turnout and marginal victory prevented the referendum conferring legitimacy on the reformed constitution.109

Future Reforms

According to the Polish constitution, future reforms do not necessarily require a popular referendum.110 Only the legislative houses and President may submit proposed amendments for consideration.111 Generally, an amendment requires the support of two-thirds of the members of Poland’s lower legislative body and an absolute majority of Senators.112 However, if a proposed amendment

104 Daniel H. Cole, Poland’s 1997 Constitution in Its Historical Context, 2 (Sept. 22, 1998), available at http://indylaw.indiana.edu/instructors/cole/web%20page/polconst.pdf. 105 Daniel H. Cole, Poland’s 1997 Constitution in Its Historical Context, 4 (Sept. 22, 1998), available at http://indylaw.indiana.edu/instructors/cole/web%20page/polconst.pdf. 106 George Sanford, DEMOCRATIC GOVERNMENT IN POLAND: CONSTITUTIONAL POLITICS SINCE 1989 90 (2002), available at http://books.google.com/books?id=tOaXi0hX1RAC&lpg=PA90&ots=kO4U4hxXuU&dq=Poland%20constitution%20referendum%2052.7&pg=PA90#v=onepage&q=Poland%20constitution%20referendum%2052.7&f=false. 107 Miroslaw Wyrzykowski, Legitimacy: The Price of a Delayed Constitution in Poland, in DEMOCRATIC CONSOLIDATION IN EASTERN EUROPE VOLUME 1: INSTITUTIONAL ENGINEERING, 431, 451 (Jan Zielonka, ed., 1st ed., 2001). 108 Polish News Bulletin, KPN Files Referendum Protest (May 28, 1997), available at http://www.pnb.pl/clientarea/polish-news-bulletin-daily/35272-kpn_files_referendum_protest.html 109 Miroslaw Wyrzykowski, Legitimacy: The Price of a Delayed Constitution in Poland, in DEMOCRATIC CONSOLIDATION IN EASTERN EUROPE VOLUME 1: INSTITUTIONAL ENGINEERING, 431, 453 (Jan Zielonka, ed., 1st ed., 2001). 110 POLAND CONST. art. 235 (1997), available at http://www.poland.pl/info/information_about_poland/constitution.htm. 111 POLAND CONST. art. 235 (1997), available at http://www.poland.pl/info/information_about_poland/constitution.htm. 112 POLAND CONST. art. 235 (1997), available at http://www.poland.pl/info/information_about_poland/constitution.htm.

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alters the basic structure of the Republic of Poland, affects the rights and freedoms of Polish citizens, or alters the constitutional amendment process itself, the Polish government may, but is not required to, hold a confirmatory referendum.113 If a majority of the voters approve, the amended measure is submitted to the President for signature.114

Although Polish citizens ultimately had the power to approve or reject the 1997 constitution, the reform process primarily engaged experts. Due to a vilification campaign by opponents and the public’s lack of ownership over the process, less than one quarter of the eligible electorate voted to adopt the constitution. As in South Africa and Albania, the Polish government recognized that the constitution needed legitimacy among the public and held a popular referendum. However, while South Africa and Albania established elaborate programs to consult and educate the general population, Poland’s constitutional process focused on facilitating the participation of experts and political leaders. This approach may have impacted the constitution’s legitimacy among the broader public. Belgium

The Belgian constitutional reform process occurs through representative rather than direct democracy: the population cannot vote directly on constitutional revisions, but elects the parliamentarians who vote. Belgium has revised its constitution five times since 1970, mostly in order to better manage the country’s linguistic and cultural divisions.115 Since the Roman Empire, Belgium’s dense population has primarily consisted of French-speaking Walloon and Dutch-speaking Flemish residents.116 Constitutional amendments generally have devolved powers from the central government to the Walloon and Flemish populations, which have gained considerable political autonomy and, in some areas, exclusive decision-making authority.117 Today, the complex structure of government in Belgium both reflects and further solidifies divisions on the basis of language and culture. 113 POLAND CONST. art. 235 (1997), available at http://www.poland.pl/info/information_about_poland/constitution.htm. 114 POLAND CONST. art. 235 (1997), available at http://www.poland.pl/info/information_about_poland/constitution.htm. 115 Robert Mnookin and Alain Verbeke, Persistent Nonviolent Conflict with No Reconciliation: The Flemish and Walloons in Belgium, 72 LAW & CONTEMP. PROBS. 151, 161 (2009). 116 BBC, Rich Flanders Seeks More Autonomy, (Sep. 30, 2008), available at http://news.bbc.co.uk/2/mobile/europe/7640176.stm. 117 Robert Mnookin and Alain Verbeke, Persistent Nonviolent Conflict with No Reconciliation: The Flemish and Walloons in Belgium, 72 LAW & CONTEMP. PROBS. 151, 161 (2009).

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Public Consultation

Belgium has no mechanisms for direct public participation in the constitutional reform process. Rather, citizens influence the process by voting in elections that are automatically triggered once representatives have declared positions in a preliminary vote.118

The amendment process, unchanged since 1831, does not provide for direct public consultation on the proposed change. Rather, both houses of parliament as well as the government must approve a Declaration of Revision of the Constitution, which identifies the amendment. Both houses of parliament are then dissolved and a national election is held.119 Only once a new government is formed may Parliament pass an amendment, subject to a two-thirds majority in both houses with at least two-thirds of the members in each chamber present.120

The timing of the parliamentary elections enables voters to retain or remove their representatives based on the representatives’ positions on the proposed constitutional revision.121 Voting is compulsory in Belgium, guaranteeing an outcome that reflects popular will.122

Public Education There are no formal provisions for promoting public awareness of the constitutional reform process. However, Belgian parliamentarians may raise the profile of proposed reforms as they campaign prior to the automatically triggered election. While contestants may not purchase airtime in the media, Belgium’s public broadcasters allot two to three minutes of free airtime to each party in the weeks prior to elections.123 However, because no parliamentary party or media organization is active throughout the state, campaigns and media coverage are targeted only at Flemish, French or German speakers.124 This regional nature of 118 BELGIUM CONST. art. 195 (1994). 119 BELGIUM CONST. art. 195 (1994). 120 BELGIUM CONST. art. 195 (1994). 121 Mark P. Jones, Assessing the Public’s Understanding of Constitutional Reform: Evidence from Argentina, 18 POLITICAL BEHAVIOR 25, 26 (1996), available at http://www.jstor.org.proxyau.wrlc.org/stable/586510. 122 Jacqui Briggs and Karen Celis, For and Against: Compulsory Voting in Britain and Belgium, 4 SOCIAL AND PUBLIC POLICY REVIEW 1, 2 (2010). 123 Office for Democratic Institutions and Human Rights, Federal Elections 2007: Kingdom of Belgium OSCE/ODIHR Needs Assessment Mission Report, 10 (June 10, 2007), available at http://www.osce.org/odihr/elections/belgium/25333. 124 Office for Democratic Institutions and Human Rights, Federal Elections 2007: Kingdom of Belgium OSCE/ODIHR Needs Assessment Mission Report, 4 (June 10, 2007), available at http://www.osce.org/odihr/elections/belgium/25333.

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politics and media in Belgium may hinder awareness of the full range of viewpoints.

Public Consent While the public does not have an opportunity to directly vote on

constitutional reforms, the scheduling of parliamentary elections before revisions become final gives citizens control over the fate of proposed reforms.

Future Reforms The Belgian process to reform the constitution remains the same as

described above. Belgium has no formal provisions for public consultation, public education,

or direct public consent regarding proposed constitutional reforms. Civil society, the media and political parties work independently to ensure public awareness. Although public participation is limited to the election of politicians, the timing of elections and the requirement that all citizens vote in elections provides public feedback on constitutional reforms. Although Belgium has few official mechanisms for public participation until the end of the constitutional reform process, an established democratic system helps to legitimize the constitutional reform process. Conclusion

These constitution drafting and reform experiences demonstrate the diversity of approaches to public participation. This diversity results in part from the fact that states undertake constitutional change with different motivations and challenges. Approaches range from soliciting extensive public input and feedback, as in Albania and South Africa, to simply seeking public approval of the constitution through a referendum, as in Poland. While Belgium permits participation only through citizens’ ability to elect and influence their representatives, Iceland innovated methods of involving large numbers of ordinary citizens directly. Despite the wide range of approaches, the methods of engaging public participation in constitution drafting and reform nearly always draw skepticism and dissent among some segment of a state’s population. Nevertheless, these mechanisms may be vital to constitutional legitimacy by enhancing transparency, public input, and public awareness.