Participatory Constitutional Reform

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 states 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 Education 6
Public Consent 7
Future Reforms 8

Albania 9
Public Education 10
Public Consent 11
Future Reforms 12

Poland 12
Public Education 14
Public Consent 15
Future Reforms 15

Belgium 16
Public Education 17
Public Consent 18
Future Reforms 18

Conclusion 18

1
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
states 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 Publics 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
Bjrn Dressel, Strengthening Governance Through Constitutional Reform, ASIAN DEVELOPMENT BANK, 2 (2005),
available at http://www.adb.org/documents/periodicals/gb/GovernanceBrief13.pdf.
2
government collaboration and buy-in. Often, the state and civil society operate in
tandem to maximize public participation.

Iceland

Icelands constitution drafting process was initiated and largely driven by
the citizenry, which enjoyed the direct support of Icelands 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
7
8
9
3
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 countrys 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
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
13
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
16
17
4
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 constitutions 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 Africas 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
20
21
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.
5
interim constitution established the Government of National Unity and tasked a
Constitutional Assembly with drafting and approving a permanent constitution.
23

South Africas 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 societys 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
26
Catherfine Barnes and Eldred De Klerk, South Africas 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 Africas Multi-Party Constitutional Negotiation Process,
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
29
30
31
6
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 Africans life, including
future generations, and to legitimize the process by stressing the Constitutional
Assemblys desire to involve the public.
38
One of its main slogans was youve
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 Assemblys official bi-weekly

32
Christina Murray, A Constitutional Beginning: Making South Africas Final Constitution, 23 University of
Arkansas Little Rock Law Review 809, 822 (2001).
33
Christina Murray, A Constitutional Beginning: Making South Africas 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 Africas Final Constitution from a Human-Rights Perspective, 47 THE
AMERICAN JOURNAL OF COMPARATIVE LAW 67, 72 (1999).
36
37
38
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
41
PROGRAMME, UNITED NATIONS EDUCATIONAL, SCIENTIFIC AND CULTURAL ORGANIZATION, 10 (2003).
7
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 Assemblys 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 Assemblys
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 Africas 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
PROGRAMME, UNITED NATIONS EDUCATIONAL, SCIENTIFIC AND CULTURAL ORGANIZATION, 10 (2003).
43
44
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%2
Fwww.dastuur.org%2Findex.php%3Foption%3Dcom_docman%26task%3Ddoc_download%26gid%3D76%26Itemi
d%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
49
8
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 states 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 Africas 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 Africas Multi-Party Constitutional Negotiation Process, 13
ACCORD 26, 31 (2002), available at http://www.c-r.org/accord-article/south-africas-multi-party-constitutional-
negotiation-process.
51
Catherine Barnes and Eldred De Klerk, South Africas Multi-Party Constitutional Negotiation Process, 13
ACCORD 26, 31 (2002), available at http://www.c-r.org/accord-article/south-africas-multi-party-constitutional-
negotiation-process.
52
United States Department of State, Background Note: South Africa, (June 2, 2011), available at
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).
9
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
58
United States Department of State, Background Note: Albania, (Aug. 30, 2011), available at
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
63
Scott N. Carlson, The Drafting Process for the 1998 Albanian Constitution, 9-10, available at
10
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 publics 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 constitutions 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
PROTECTION OF HUMAN RIGHTS 19 (2007), available at
www.ohchr.org/Documents/Publications/GoodGovernance.pdf.
65
(http://www.constitutionnet.org/files/Albania%20The%20Drafting%20Process%20for%20the%201998%20Albania
n%20Constitution,%20Scott%20Carlson.pdf).
66
67
68
69
Scott N. Carlson, The Drafting Process for the 1998 Albanian Constitution, 12-13, available at
70
71
11
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 constitutions 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
73
74
75
76
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.
12
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
84
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 Pop!awska, Constitution-Making in Poland: Some Reflections on Popular Involvement, 45 JOURNAL OF THE
SPLIT FACULTY OF LAW 279, 280 (2008).
13
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
89
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
ed., 2001).
92
CONSOLIDATION IN EASTERN EUROPE VOLUME 1: INSTITUTIONAL ENGINEERING, 431, 453 (Jan Zielonka, ed., 1st ed.,
2001).
93
94
95
14
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
98
ed., 2001).
99
The 1997 population of Poland was approximately 38,660,000. Janusz Witkowski, Case Study: Poland, in
EUROPES 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%2
C659&f=false.
100
ed., 2001).
101
ed., 2001).
102
ed., 2001).
103
15
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 Polands lower legislative
body and an absolute majority of Senators.
112
However, if a proposed amendment

104
Daniel H. Cole, Polands 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, Polands 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
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
2001).
110
POLAND CONST. art. 235 (1997), available at
http://www.poland.pl/info/information_about_poland/constitution.htm.
111
112
16
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 publics 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, Polands constitutional
process focused on facilitating the participation of experts and political leaders.
This approach may have impacted the constitutions 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 countrys
linguistic and cultural divisions.
115
Since the Roman Empire, Belgiums 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
114
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).
17
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, Belgiums
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
120
121
Mark P. Jones, Assessing the Publics 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.
18
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 states population. Nevertheless,
these mechanisms may be vital to constitutional legitimacy by enhancing
transparency, public input, and public awareness.

Participatory Constitutional Reform

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