2 Constitution Making and the Right to Take Part in a Public Affair Vivien Hart onstitution making is a contest over hand seem more just, but on the other be less the distribution, redistribution, and controlled. limitation of power. The making or The International Covenant on Civil Cremaking of a constitution is of particular and Political Rights (ICCPR), which came significance in divided and conflicted socie- into force in 1976, declared a right to take ties, where the process frequently is part of part in public affairs. If this general right to peacemaking and nation-building endeav- democratic governance is taken to extend to ors. Traditionally, negotiating a constitution constitution making, then the only issue for © Copyrightwas the province of political by leaders the who Endowmentdiscussion—no small issue—is how of best to held power or claimed it. Drafting the con- implement the right through practices that thestitutional United text was expert States work. The public Instituteare fair, efficient, andof effective. Peace This chapter was, at most, drawn in only to give consent explains that the first part of this proposi- to the final version. In a significant change, tion, that participation is a requirement of it is now widely assumed that whatever the a constitution-making process, has only re- axes of conflict, the constitutional outcome cently gained recognition in international will be more sustainable if those who experi- law, and that the law remains in need of fur- enced past injustices are involved in creating ther clarification and development in impor- new solutions. The widening and deepening tant respects. Legal justifications matter, not of public participation characteristic of many least as a resource for disadvantaged mem- recent processes have involved power sharing bers of the polity, and it is therefore worth- with a general public that extends to groups while to substantiate the case for a legal right that were previously excluded: women, mi- to participation, as this chapter aims to do. norities, the poor, and the otherwise margin- But constitution making is an inherently po- alized. The resulting process may on the one litical as well as legal process. It is not sur- 20 Framing the State in Times of Transition 21 prising, then, that the emergence of a legal stitution making, however, is still widely as- right to participation has been paralleled by sumed to be a prior condition for, rather than the emergence of normative political criteria a part of, governance, and so may remain be- for participation, along with considerable ex- yond the reach of the right to participate in perimentation with participatory practices. governance. Political practice has reinforced and even In parallel with such developments in run ahead of the development of the law. international law, a philosophical argument The discussion that follows gives attention to has developed favoring a right to participate the legal, normative, and practical aspects of in constitution making. This has asserted the democratic constitution making, all of which importance of democratic constitutions in a are involved in the realization of the high as- world of multiple and intersecting nations, pirations of the right to participate. cultures, and conflicts. James Tully, a leading exponent of this view, asks why the consti- tution is seemingly the “one area of mod- A Continuing Debate ern politics that has not been democratised Once the ICCPR came into force, and as over the last three hundred years.”4 From legal thinking about the right to democracy his perspective, a dominant tradition defin- developed, constitution making was at first ing constitutional matters as outside of and ignored in favor of traditional assumptions above normal politics, the province of an ex- about its distinctive nature as a process stand- pert elite, is the fairy-tale emperor with no ing above and apart from the everyday busi- clothes. Constitution making is the founda- ness of governance. The right to democracy tion of democratic governance. Why should acquired a strong interpretation, but only in the people not share in making the constitu- relation to the day-to-day activities of vot- tions that govern them, and have their moral ing and office holding. In 1992, in his clas- claim to participate bolstered by a legal right sic article “The emerging right to democratic that all are bound to respect? governance,” Thomas M. Franck identified a In the recent unprecedented era of consti- change in the concept of democracy found in tution making, political actors also have taken international law, from aspiration to entitle- up the issue of participation. Constitution- © Copyrightment, political vision to “normative by therule of Endowmentmaking processes involving experiments of in the international system.”1 As a result of this public participation have multiplied.5 The 2 thearticle, United much effort has beenStates devoted to de- Institutemillion public submissions of toPeace South Africa’s fining an applicable standard for what con- constitutional assembly have set a standard stitutes a democracy. The focus has continued for constitution makers, unmatched as yet in to be on procedure—on, for example: free other nations.6 Even the 2004 Transitional and fair elections; the rights of candidates, Administrative Law for Iraq, itself written political parties, and other organizations to without public participation, mandated in- engage in the political sphere; and activities formed public debate in the constitutional that allow for codes, remedies, and enforce- process.7 ment as befits a rule of the international sys- No amount of intellectual or practical tem.2 Progress has allowed Franck, revisiting innovation necessarily creates a “normative the topic in this volume with coauthor Arun rule of the international system,” a right in K. Thiruvengadam, to find the right now es- international law to take part in the making tablished as a clear “general requirement of of constitutions. But Franck and Thiruveng- public participation in governance.”3 Con- adam now determine that there is “a growing 22 Vivien Hart convergence around universal principles of tion making does not diminish the signifi- legitimate governance and these are tending cance of holding a legal right, and not just a to be applicable also to the process of consti- political desire, to participate in constitution tution drafting.”8 This chapter suggests that making. Rights are aspirations and resources evidence of various kinds allows us to go fur- as well as entitlements.12 Aspirations will no ther than this cautious conclusion. In legal doubt be pursued by every political means, developments, the right granted in Article but political means are mightily reinforced 25 of the ICCPR “to take part in the con- when a defined and potentially enforceable duct of public affairs” has been interpreted entitlement exists alongside. Thus, this chap- as extending to the making of constitutions.9 ter argues for a dual perspective, lawyerly re- International, regional, and national charters finement alongside political development as of rights have embodied increasingly expan- essential counterparts. To clarify the present sive guarantees of access to every aspect of state of both law and practice, I first review democratic governance, leading, by impli- both international and national textual pro- cation or deliberate design, toward includ- visions and judicial rulings that clarify both ing constitution making as governance. The the scope and limits of the ICCPR’s promise. Canadian Supreme Court ruling of 1998 on Next, the recent practice of participation is the Reference re Secession of Quebec, influen- discussed. Finally, I conclude that in princi- tial beyond its borders, has made dialogue ple, in law, and in practice, a right indeed ex- over constitutional matters an obligation of ists. The public has a right to take part in the the state and citizens.10 In parallel, political foundational affair of constitution making, theory and action provide both trenchant ar- and the powerful interests that will always be guments and a body of practice that support involved in the process must recognize and public involvement as a requisite of demo- respect that right. cratic constitution making. Yet both the authority and the merits of Textual Promises the right to participate in constitution mak- ing remain contested, unsurprisingly, when International Instruments the exercise of power and its legitimacy are The right to participate in public life was first ©at stake. Copyright How might the issue best by be taken the articulated Endowment in UN documents. Article 21of of forward to contribute constructively to the the declaratory UN Declaration of Human practice of constitution making? If the legal Rights of 1948 and especially Article 25 of regimethe is all,United then a more firmly States established the Institute enforceable ICCPR, adopted of inPeace 1966 and legal entitlement can serve advocates of par- entered into force in 1976, establish rights ticipation. Political scientist Tony Evans has to participate in public affairs, vote, and have argued critically that such a legal approach so access to public service.13 Article 25 declares dominates the human rights field that inad- the rights: equacies are naturally taken to require only (a) To take part in the conduct of public af- more lawyerly “refining, polishing, and elabo- fairs, directly or through freely chosen rating accepted norms and standards, in an representatives; attempt to make the regime more elegant, so- (b) To vote and to be elected at genuine peri- phisticated, imposing, and magisterial.”11 But odic elections which shall be by universal establishing a firm legal basis would also be a suffrage and shall be held by secret ballot, guaranteeing the free expression of the will politically significant move, fortifying a moral of the electors; claim with an applicable right. The present (c) To have access, on general terms of equality, (relative) legal reticence regarding constitu- to public service in his country.