Dimensions and Dilemmas: Public Participation in Constitution-Making in Post-War Settings

Abstract

Even though the practice of public participation gives rise to questions about impact, design and risk, public participation remains an essential ingredient in contemporary constitution-making processes, in some form. In states emerging from conflict, constitution-making and some kind of public participation in that exercise is often understood to be central to strengthening constitutional governance. In this paper, I am concerned with the implications of these assumptions in states that can be categorised, broadly, as post-war. That is to say, countries in which armed conflict has ceased, but have not yet reached a political solution. In looking at the experiences of some of these jurisdictions, I ask the following questions. How should the emerging norm of public participation in constitution-making be understood and applied? What approaches are most useful in dealing with the dimensions of public-participation in constitution-making? I focus specifically on Nepal, Myanmar and Sri Lanka in exploring this question. Theorising from the Global South, I argue that the dilemmas that arise in public participation throw into sharp relief its several dimensions. These dimensions are 1) conflict resolution and state formation, 2) democratisation, 3) transparency and accountability, 4) the transnational dynamic, 5) constitutional literacy and 6) constraints of resources and time. I claim that understanding public participation as comprising of these dimensions clarifies its nature and scope. This view allows a more honest but also modest approach. In other words it allows for public participation in constitution-making to be taken more seriously.