This chapter aims to provide initial answers to the basic question of whether and how participation in constitution-making delivers for women. The chapter proceeds by first outlining the contours of the debate surrounding popular participation in constitution-making, identifying the benefits and potential pitfalls such participation may yield. The chapter then looks at three instances of popular involvement in constitutional change: the 2014 Scottish independence referendum, the 2012-14 Irish Constitutional Convention and the 2011-14 Tunisian constitution-making experience, analysing the level and nature of women’s participation in all these processes. Subsequently, the chapter evaluates the successes and failures of participatory mechanisms such as referendums, constitutional conventions and public consultations in empowering women as equal participants, and their ability to ensure gender-sensitive deliberations. The chapter also raises questions as to whether participation is to be resorted to in all cases of constitutional reform and the propensity for it to be an obstacle to, rather than a vehicle for, gender equality.
This paper looks at citizen assembly-style constitutional conventions as a path towards revitalising representative democratic institutions. Such conventions were notoriously set up in British Columbia, The Netherlands, Ontario, Iceland and Ireland; the Scottish Government promised one for an independent Scotland, and calls for a United Kingdom-wide convention remain strong following the Scottish referendum. The assumption behind such calls has been that direct citizen engagement in constitutional revision processes will supplement or even replace traditional political institutions and thereby invigorate democracy. Involving the people in constitution-drafting, the argument goes, actualises the hitherto mythical ‘people’ and turns self-government into an empirical reality.
This paper seeks to test this assumption. While acknowledging the numerous potential benefits of citizen assemblies in constitution-making, it is suggested that more thought is necessary before advocating them as a one-size-fits-all solution to the woes of representative democracy. To begin with, they need to be seen as legitimate themselves. This will involve complex decisions over inclusiveness, allocated resources and how to define their success. For example, would a highly participatory process suffice even if the resulting proposals are not adopted? Furthermore, the democratic potential of constitutional conventions may be frustrated in the likely event of certain options being a priori taken off the table. For instance, would a United Kingdom-wide constitutional convention have been worthy of its name working under a mandate as limited as that of the Smith Commission?
Finally, one must remember that the costs of popular constitution-making, including in terms of political will and citizen interest, will unavoidably render constitutional conventions exceptional. The majority of constitutional reforms are bound to come about via more traditional channels. Thus, focusing solely on popular involvement in times of crisis may be short-sighted and ultimately detrimental. If democracy is a work in progress, it is still representative democracy that we are working towards improving, including via boosts of participatory activity.