The second theme of the Forum focused on unpacking issues around how concepts around represenation connect back to issues around inclusion and participation.
The device of representation is used in various ways and at different stages in constitution-building. Representation is essential to both inclusion and participation, but raises a host of questions about the credentials of representatives, their relations with those they are supposed to represent and the ways in which these relationships work in a constitution-building setting.
Any inclusive constitution-building process uses the technique of representation at some points, in some ways. Sometimes representation is formal as when, for example, particular people or groups are elected to a Constituent Assembly or other constitution-making body. Sometimes it is less formal as when, for example, political or other leaders are involved in negotiations over disputed questions of principle or process or when members of civil society take part in constitutional discussions as proxies for the public at large.
Use of representation as a mechanism for inclusion presents particular challenges in constitution-building. If representation is to enhance inclusion in a way that achieves its purposes, representatives need to be able to speak for their communities, to interact with their communities and to commit their communities to the decisions that are taken. These considerations make the selection of representatives important. In this context, while competitive elections were a traditionally preferred method for selecting such representatives, more recent experience suggests that electoral outcomes may need to be moderated to promote inclusion in other ways. Options include the use of quotas, to ensure that marginalised or other important groups are not left out. Mechanisms of this kind, however, have the potential to create problems of their own for the character and effectiveness of representation.
A different set of issues relates to the freedom of action of representatives participating in a constitution-building process. On the one hand, representatives need some kind of mandate from the constituency they represent, in order to legitimately reflect their views and interests. On the other, and importantly in a constitution-building process, they need flexibility to negotiate and find bases on which to compromise. In such situations the value of transparency in constitution-building exists in tension with the need for confidentiality in political negotiations.
There were four case studies for this theme, from Nepal, Philippines (Bangsamoro), Papua New Guinea, Indonesia. The case studies explored the following questions :
- Who was represented and by whom?
- How were the representatives chosen? What, if any, issues arose?
- Were steps taken to ensure the inclusion of generally underrepresented and/or historically marginalized groups? If so, how were these representatives chosen? What issues, if any, arose?
- How did the representatives relate to those they were representing? Or how legitimate were the representatives in the eyes of the represented?
- What freedom of action did representatives have or assume, as the carried out their roles in the constitution-building process? Was freedom of action in any way related to level of legitimacy?