The third theme of the Forum engaged participants to identify insights for the design of direct public participation.
Public participation in constitution-building risks being formal or symbolic, rather than substantive in effect unless it is carefully designed to feed into negotiation and decision-making processes. Going beyond symbolic public participation is a resource intensive exercise, in terms of human and financial resources. Depending on the purposes to be served, effective participation is likely to require genuine public engagement with issues relevant to the Constitution throughout the constitution-building process or, more usually, at particular points in the process. Mere consultation may not be sufficient, if that is understood to involve no more than information about the constitutional changes that are proposed in a largely top-down process or a managed process of consultation with no likelihood of affecting the outcome.
Active public participation is complicated, however, by the often-abstract nature of constitutional issues and, typically, a lack of knowledge and understanding of constitutional matters amongst the population at large. Active participation therefore may require a range of strategies: presenting constitutional issues in an accessible way; translating practical concerns raised by the public into constitutional form; organising public meetings in a way that encourages an active exchange of views; and using different forms of media, as appropriate, including social media. Active public participation may need to be accompanied or preceded by a program of public information and education, in trustworthy and accessible form. Active public engagement and a sense of ownership of the process and of the Constitution that it produces may be assisted by provision for feedback; explaining how public views were taken into account and justifying the decision when they are not.
Four case studies were presented in support of this session's theme, from Tuvalu, Mongolia, Australia and Taiwan. The case studies explored the following questions:
- At what stage(s) in the constitution building process did public participation occur? For example, at the outset when the ‘agenda’ is set; during the deliberation and drafting process; at the ratification stage; subsequently?
- How was participation extended to the public? Who is involved, in consequence? How diverse were the groups?
- Was participation interactive, or largely top-down?
- Was there a public education and information program? How was this run? Did it make a difference?
- Was social media and information technology used? If so, how? With what results?
- Did the programme include any strategies for minimising the risk of public participation leading to polarization? Were there instances in which public opinion expressed through consultation was contrary to consensus among the political elite?
- Was a deliberative process used, such as a Citizens’ Assembly? What role did this play in achieving the goals of public participation?
- Was a referendum or a plebiscite used? At what point(s) in the process? What role did this play in achieving the goals of public participation?
- To what extent, if at all, was public participation in the constitution-building process anticipated or protected in a road-map for the process as a whole?