Abstract
Participatory constitution-building is a trend that appears to be here to stay; particularly when new constitutions are drafted in the aftermath of war or during transitions from authoritarian to democratic rule. Anticipations as to what the involvement of the public will achieve are several, and scholars are only recently starting to systematically investigate whether or not these expectations find empirical support. Previous research has shown that public participation in the making of the constitution can have certain positive effects at an individual level of analysis, but that the actions of political elites during constitutional negotiations might affect outcomes at a macro level of analysis more than what has hitherto be acknowledged in this strand of research. Nepal is one of the most recent cases of participatory constitution-building, and the country carried out not only one, but two, such processes within a time period of only seven years. The first resulted in failure as a draft constitution was never finalized; the other in success with the adoption of a constitution in 2015. This article takes an interest in exploring and comparing these two separate processes as regards the extent of public participation vis-à-vis political elite negotiations and bargaining behind closed doors. The article finds that what primarily sets the two processes apart, is how broad based public participation and secluded elite negotiations were sequenced. In light of other empirical examples, the article also discusses if elite bargains ought to be struck before the general public are invited to participate.
Highlights
Constitution-building, to considerably alter or to re-write the founding laws in their entirety, has become an integral part of many transitional processes around the world; especially when the transition in question is from war to peace or from authoritarian to democratic rule (Widner, 2008; Elster, 1995: 370-371)
It is important that scholars analyze past empirical cases of participatory constitution-building processes; that we attempt to relate different process related choices during these to specific outcomes, and that we attempt to learn valuable lessons that can be useful for future cases that set out to carry out participatory constitution-building processes of their own, following war or authoritarian rule
As far as these ambitions are concerned, the two Nepalese constitution-building processes that have been the focus of attention in this article provide insights that build on, and verify, previous research
Summary
Constitution-building, to considerably alter or to re-write the founding laws in their entirety, has become an integral part of many transitional processes around the world; especially when the transition in question is from war to peace or from authoritarian to democratic rule (Widner, 2008; Elster, 1995: 370-371). Participatory constitution-building has become a new norm in post-conflict contexts and in contexts of transitions from authoritarianism (Saati, 2017a; Hart, 2010) Scholars in this field of research, and peacebuilding practitioners alike, have placed high hopes on what public participation in constitution-building processes is to achieve. This article is organized in the following way: I discuss what is meant by public participation in constitution-building processes and how we can go about assessing how participatory the two separate Nepalese constitution-building processes really were This is followed by a theoretical section that focuses on analyzing the role of political elites in constitution-building processes during times of transitions, from war to peace, or from authoritarian to democratic rule.
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