Chapter 2: Participation in constitutional design: Asian exceptionalism
Ours is an era of constitution-making. Approximately one-quarter of the world's written constitutions have been promulgated since the third wave of democracy began around 1974 (Comparative Constitutions Project 2009). The trend over this period has been toward increasing public participation in the constitutional design process - either in the design, drafting or approval of the constitutional text. To cite but one example, more than 40 percent of constitutions currently in force that describe their own promulgation procedure required public ratification via referendum. The comparable figure for 1950 was approximately 5 percent (Ginsburg, Elkins and Blount 2009). The new constitutionalism that has emerged over this period places as much emphasis on process as it does on outcomes (Hart 2001). In light of this, the formal provision of democratic institutions is no longer sufficient to establish the democratic bona fides of a constitution. Because a constitution is the highest level of lawmaking and provides the ultimate rule of recognition for lawmaking processes (Kelsen 1945; Hart 1961), it requires the greatest possible level of legitimation in democratic theory. This need for legitimation dictates that a democratic constitution must be fashioned by democratic means in acknowledgment of the moral claim of a people to the right to participate in the creation of the rules under which they will be governed (Hart 2001, 2003; Samuels 2005). The 2012 struggle over the constitution of Egypt provides a tragic illustration of the consequences of constraining participation: the Muslim Brotherhood rammed through a document without involvement of other groups in the constituent assembly, generating a backlash of bloody protests.
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