Constitutional Crowdsourcing: Democratizing Original and Derived Constituent Power in the Network Society by Antoni Abat Ninet, a Book Review – Part II
[Editor’s note: this is the second of two posts featuring the book Constitutional Crowdsourcing by Antony Abat Ninet, (Edward Elgar Monographs in Constitutional and Administrative Law, 2021)]
One of the main arguments that the book focused on is the constants for “Rights and Freedoms” and the “State and Society” provisions are positive and statistically substantial for the former, showing that draft articles related to these two subjects were more likely to change based on public response. In contrast, the coefficient for “Independent Bodies” is negative and statistically momentous, signifying that provisions related to this topic were less likely to change based on public demand. Thus, the outcomes suggest that it’s crucial for the constitution to address common demands, such as rights-related text. Public concerns that are raised frequently and vocally are more likely to be included in the constitution. Also, both control variables for contentiousness of each article have positive links with the likelihood of change, but this connection is momentous only for state-owned media coverage. This is imperative because contentiousness of provisions can be a perplexing variable that disturbs both the likelihood of almaslahal‘amah (public interest) in the issue and the likelihood of change. The media tends to cover provocative provisions more often and this increases the probability that online participants took an interest in various articles through votes and commentaries and the prospect that numerous iterations of an article were needed before pact could be reached. Although public news coverage has an important connection with the chance of change, its association with public observations and votes is close to zero, demonstrating that contentiousness of provisions is not a momentous cause of the result. In fact, the important correlation between State News Coverage and the prospect of change in the draft could be due to the fact that when provisions change more often, they would result in more reports by the public media platforms. In other words, the cross-level contact term has a positive sign, meaning the effect of the rights and freedoms provisions on the relation between the online vote and constitutional change is optimistic and therefore the chance of change rises if draft provisions are related to rights and freedoms. Not only the difference between rights and freedoms and other articles is expressively higher for positive online votes, but also the estimation is more precise. Yet, this, should not cast doubt on the implication of the findings on the role of online votes in prompting different constitutional provisions or texts.
Mexico as a Case Study – The book notes, that the enactment of the first local Constitution in Mexico is to be seen theoretically as another landmark towards democratization. But a multifaceted local political scenario and a national distrust in government raised some inquiries about the real utility of a new constitution for Mexico. In January 2016, both chambers of Congress approved a constitutional amendment, that would grant Mexico City more autonomy regarding federal authorities (not sovereignty), through its first Constitution. This accomplishment was the result of a dubious negotiation process among political parties with almost no civic participation that threatened a lack of legitimacy of the Constitutional Assembly, and in general, in the whole constitutional process. The book argued that the initial perspective to generate social participation in the drafting process is to advance a collaborative editing tool where members of the Drafting Group would post essays on themes with comments and feedback generated by citizens and experts (a mechanism that would channel views, notions, and suggestions generated by the people about the Constitution). The result was a digital platform used to design both an informative resource on the constitutional process and to serve as a tool that would endorse civic participation and integrate all citizen contributions to the constitution.
Within the drafting process numerous questions on sensitive topics (e.g., distrust in government; corruption; transitional justice; human rights violations, etc.…) could be considered as intricate as constitutional matters prove to be unappealing to a general public. Thus, to generate a comprehensive and rich call for proposals, it is significant to explore alternative participation channels in addition to the classical collaborative editing trend to crowdsource. So, this case study showed robustly, that the collective reflection process – always – envisioned to start in a platform emerged in many articles of a constitutional itinerary. It’s a pioneering collaborative editing tool and it may become a stage that would funnel different types of citizen input towards the co-creation of a constitutional plan. This platform should be active, so that even if participatory channels are open, individuals won’t occupy them unless they’re given diverse instruments to express their opinions – mechanisms that match their levels of public engagement – and interest in public affairs. A strong believer in open government, sometimes realize that the lack of extensive interest in the joint editing tool came as unsatisfactory but rather unsurprising news. When talking about the future of co-creation apparatuses and processes in public affairs, and maybe the future of open government per se, it’s important to think whom these tools and processes are intended for. If not, the gap between the complexity of the tools and the real common (public) interest they generate to citizens will just keep getting greater, and the open government plan might burst to dissatisfaction in times of democratic fizziness, just when it is desired.
In conclusion, Ninet’s book shows that online public participation in various countries globally is effective and public deliberation affected the prospect of constitutional change. Also, the consequences point to the conditions that make participation effective: popular demands are accounted for as long as they are made more frequently, and more significantly, as long as the political parties honor their ex ante agreements. When the public agrees on the most critical matters and makes reliable demands on constitution drafters, there remains little room for ignoring those demands. Hence, the questions of most concern to the public that are most commonly and loudly needed are more likely to find their path into the constitution. Most important is a prior promise (consensus) among elites over the proposal of the constitution and the political institutions. It is generally well-known that, any constitutional crisis and the political clash that arose came as a result of the failure of the two major opposition groups (e.g., Democrats v. Republicans; Islamists v. non–Islamists) to reach a compact consensus.
The book concludes that without a solid deal and a road map for transition, each group will fight to ensure its political stability and future survival. Accordingly, rather than attempting to rescue the transition process towards democracy and constitutional legitimacy via bargaining with the opposition, each group sets out to grasp power from the other by resorting to any means or ways possible even if it meant bringing back dictatorship into politics (e.g., Brasil). The political antagonism between different/opposing groups will lead in the end, a specific group to alienate others and to write a constitution that reflected the former’s ideology. It should be noted that the boycott is a turning point in the constitutional process that prompted an all-out political clash. The constitutional design means the initial plan for the constitutional process and that is responsive to public demands, and always indicates that online public input is effective as long as the initial agreement is honored. Public input is constantly rendered unsuccessful when all channels of communication and compromise between the two opposing parties fail and end up in public unrest. Most case studies cited in the book demonstrates that, given these conditions, public deliberation can affect the drafting of the constitution. Yet, consulting citizens is less about what goes into the constitution and rather how the public is involved in the process. Public contribution is a democratic practice per se, which is very vital in transitional societies with long histories of totalitarianism and tyranny. Such participatory processes permit for democratization of popular sovereignty, and citizens can participate in a democratic experience where they have a fundamental role in the writing [and the enactment] of their constitution.
Throughout the 160 pages of the book, it is emphasized that the Constitution making after the Third Wave of democracy has changed to echo the normative alarms related to “crisis of representation” related to delegative and competitive concepts of democracy. The “Third Wave of Democracy” refers to a global surge in democratization that occurred predominantly from the mid-1970s to the early 2000s. During this period, many authoritarian regimes transitioned to democratic forms of government across Latin America, Eastern Europe, Asia, and parts of Africa and the Middle East. Key factors contributing to this wave include the fall of dictatorships, pressure for democratic reforms, and the spread of ideas facilitated by globalization and advancements in communication technology. While the Third Wave brought about significant democratic gains, it also faced challenges and setbacks. Some countries experienced democratic reversals, where initial democratic reforms were rolled back, or transitions to democracy were incomplete, leading to hybrid regimes or authoritarian relapses. Hence, the Third Wave of Democracy represents a period of profound global transformation, where democratic ideals spread and took root in societies across the world, reshaping political landscapes and inspiring movements for political change.
Participatory constitution making, as such, is an evolving practice and progressive countries use some modes of common engagement when drafting a new constitution. It concludes that crowdsourcing during the deliberation stage of the constitution drafting and shows that online public feedback expressively affects the prospect of constitutional changes. This result may be specific to particular countries and cannot be generalized unless an inclusive cross-national test of citizen input and constitutional changes is achieved. Popular preferences would be reflected in the constitution if citizens approve on the most striking issues and convey them more recurrently, and as long as there is an ex anteijma‘a among constitution drafters on the overall design of the constitution. This outcome speaks to the democratic theory by presenting evidence that public constitutional deliberation can affect the constitutional drafting.
After decades of autocracy, the constitutional process in various nations around the world allowed citizens to contribute to the authorship of their constitution and to convey their desires and hopes to the Constituent Assemblies. The statistical results presented – in many examples – prove that as the online public approval over draft articles amplified, the anticipated provisions were less likely to change and if the online public censure increased, draft articles were more likely to change. Further, the results propose that comments/feedbacks on articles concerning individual and civil rights were more likely to be positively merged in the constitution compared with those about political institutions. In case of political congestion or stagnation among political boycott, online public responses were less likely to impact the content of constitution. The failure of drafters to reach a solid pact over the constitutional design destabilized their efforts in engaging the public in a democratic constitutional process and paving the ground for transition to democracy.
Eventually, any fragile promise broke down and ruined the participatory constitution-making process, however, long negotiations between different political parties allow for less political disharmony and a more operative participatory process. If all parties are suspicious of each other from the beginning, input did make a difference when all sides are eager to play by the rules of the transition process and keep engaging with the general public. But some cases, show how a risky balance among elites can smash and leave the citizenry excluded from the process. Five lessons seem mainly prominent for any nation intent on trying this at home:
Plan Carefully: this does not go without saying, because, although the crowdsourcing moment could have led to a worthy purposeful and deliberative feedback loop between the crowd and the constitutional powers (councils/assemblies), the latter did not always seem to have the time, tools, or training needed to process carefully the crowd’s contribution, explain its use of it, let alone return reliable feedback to the public.
Publicly Justify/DebateProcedural Design Options: a constitutional process purposes to be integral (or thorough), inclusive and transparent, so must the reasoning behind crucial design choices. It might truly have been a good clue to make a discussion of the process part of a national forum or use crowdsourcing at that early stage too.
Be Aware of The Requirements for Change: circumstances for constitutional change are themselves normally not up for discussion (dictated by the current constitution), it might have been wiser to go for the less ambitious goal of reviewing a few vital articles than rewriting the whole charter. This will be different for a state writing a constitution for the first time.
Do Not Try to Evade Entirely Other Prevailing Representative Institutions: constitutional authorities saw themselves as strangers to the system fighting deep-rooted elites. That attitude may have played out well just after disasters, but on the long run it damaged their legitimacy and jeopardized their task. The success of any constitutional process is basically dependent on uniting key political actors and upholding legality all over.
Use Experts Intelligently: the role of expert consultants in the process should be illuminated and a practical division of work worked out with (mainly constitutional assemblies’ members). Including attorneys/legal scholars in the wording of the constitutional proposal is perhaps a good idea (to ensure language/interpretation accuracy and compatibility with universal norms). Sometimes, it ends up twisting the drafters’ intent (a violation of popular sovereignty), but they accurately deteriorated the quality of the proposal.
Some experiments have unquestionably confronted the interpretation that a constitutional process must be exclusionary and mysterious, creating a precedent for a more democratic design. Let us hope – as the book concluded – it will inspire more tryouts of the kind in the near future.
Constitutional Crowdsourcing: Democratizing Original and Derived Constituent Power in the Network Society by Antoni Abat Ninet, a Book Review – Part I
[Editor’s note: this is the first of two posts featuring the book Constitutional Crowdsourcing by Antony Abat Ninet, (Edward Elgar Monographs in Constitutional and Administrative Law, 2021)]
Constitutional Crowdsourcing: Democratizing Original and Derived Constituent Power in the Network Society by Antoni Abat Ninet, provides empirical evidence from online citizen feedback within various constitution(s). The book demonstrates that despite the normative skepticism about implications of participatory constitution making, citizen participation matters. The book argues that using data of online votes and comments on the constitution, make the draft provisions with higher public approval less likely to change and those with lower approval more likely to change. It argues that the provisions related to rights and freedoms are more likely to change based on online public input. These arguments highlight the conditions under which participatory constitution making becomes more operative. First, ijma‘a (consensus) among citizens over the most prominent matters increases the prospect that those questions would be positively incorporated in the constitution. Second, without ex ante elite agreement over the constitutional design, it becomes problematic to account for citizen proposals amid political clash between elites. Ninet argues that the essence of any constitution is to capture a set of fundamental principles and rules that will outline public life and interactions within a society for any given moment in time. Drafting constitution requires a collective reflection on who “We the People” are, and what we imagine for our nation’s future.
In the past few decades, constitution-making processes have been changed to give “We the People” a literal meaning. The manuscript argued that various new constitutions promulgated recently, and many of them have incorporated at least one form of citizen participation, ranging from the election of constitution drafters to direct citizen input and public deliberation over the content of constitutions. These participatory processes legitimize the constitution by giving the people a role in the writing of their constitution. This book also emphasized that an emerging perspective is to open the deliberation phase of constitutional design processes to the public and to permit citizens to debate the text, propose provisions, and(or) add amendments to prevailing drafts. Several nations, including Iceland, Mexico, Egypt, and Tunisia, have boarded on cutting-edge, online actions to crowdsource public input on the content of the constitution. The book presents a precise response(s) to queries like, do these new initiatives authentically channel citizen preferences? Does “the nation write its own constitution”, as suggested by many Constituent Assemblies around the globe? Using a dataset of constitutional drafts and online public votes and suggestions, it tests whether online public debate – especially for countries during transition towards democracy – in the constitution-making process had any impact on the likelihood of constitutional draft changes. Several cases are instructive for constitutional reform around the world through a participatory process (e.g., Egypt is the first in the Middle East after the 2011 Arab Spring uprisings). Understanding whether participation was operative/effective or under which circumstances it can be activated can provide insight into the causes of its failure and how its ill fate could have been prohibited.
In response to the consequential frustration and power imbalances/inequalities, the book argued that platform users created external tools for communication and platform monitoring, as grassroots alternatives to an improved platform design. Analogous solutions emerged in most paid crowdsourcing platforms, regardless of top down controls. This attitude of asymmetric governance destabilizes the expected future of paid crowdsourcing. In contrast to the top-down governance structures that paid crowdsourcing platforms presently use, the author explored a bottom-up approach: open source governance (online or physical) communities. He describes a crowdsourcing stand where constituents have full access to governing documents and participate in drafting/writing legislation through an iterative community process akin to how open source software is developed. Ninet highlights throughout the pages of the book, that crowdsourced democratic deliberation offers an actual bridging of these approaches into a mechanism driven by participant stakeholders. He argues that, a governance document intended to generate a formal process for paid crowdsourcing marketplaces that permits and manages operational changes, driven by its users’ preferences will be needed to meet future democratic transitions. This document (the constitution) provides a set of legal norms governing the community and a mechanism for those laws to evolve through an amendment process. The constitution frees the platform owners to make any design changes or improvements, as long as they do not violate the constitution or its amendments.
It should be noted that open source governance structures exist in political governance societies. Nevertheless, collective efforts in crowdsourcing marketplaces have focused their efforts outside of the marketplaces per se, as many efforts have been distributed and maximize individual independence rather than collective effectiveness. Asymmetric trust and power in crowdsourcing constitutions challenge the process of governance by changing the design of the platform (mediating issues). The manuscript argues that constitutional design underscores the crucial challenges of governance in crowdsourcing marketplaces: balancing power between the stakeholder groups, and providing an official, platform extensive conduit for debate. To accomplish this, it is essential to develop mechanisms for making decisions about changes influencing the stakeholder groups and for dealing with conflicts. Additionally, it is critical to set the tone of governance by providing initial all-embracing community values. One of the most significant arguments proposed by the author is that in order to attain a democratic transition, it’s very important to ratify an initial constitution that formally specifies a process for decision making, conflict resolution, and a protocol for its own evolution through amendments. The constitution is setup with initial community standards which are designed to evolve/mature.
In terms of the principle of Separation of Powers, the book argues that crowdsourcing platforms are normally interested in making design decisions permitting them to endure developing and improving the platform to remain competitive. Ninet argued that the constitution aims to support democratic deliberation among its users, while also affording adequate technical freedom for the platform to develop quickly. As a result, the active individuals are the voting constituency, submitting ideas/notions, developing amendments, and voting on which ones to add to the constitution. On the other hand, the platform team is tasked with operationalizing the modern version of the constitution through technical deviations. It should be noted that the constitution evolves via an amendment process – as amendments develop over time, and entail a practicability check – but they are eventually submitted for a vote from the community. New philosophies can be added incognito by anyone to a public idea listing, then the listing supports discussion and empowers platform stakeholders to designate interest by upvoting. After reaching an upvote edge, the idea evolves into a possible amendment, and an intended task force sets out to draft changes to the constitution formalizing the notion and also to ensure it adheres to the updated constitution.
In the last few decades, practitioners and public law scholars alike have endorsed the general public’s direct participation in articulating and debating constitutions, claiming that the nature of the constitution-making process has serious consequences for constitutional outcomes. This emphasis on the process is deep-rooted in theories of participatory and deliberative democracy that underscore citizen participation and deliberation as circumstances for democratically legitimate political processes. The book argues that participatory and deliberative schemes are principally established in response to the rising criticisms of traditional democratic institutions and to fix the disconnect between citizens and decision makers. While participatory and deliberative concepts of democracy (e.g., debate/deliberation, voting and amendment processes are conducted on a forum with some minor modifications to enable specific voting features) both target democratic lawfulness and policy efficiency, they diverge on the means for achieving these objectives. Theories of participatory democracy emphasize the status of inclusion and political equality for policy efficacy and legitimacy. Participatory democrats underscore the fundamental value of participation as an educative and progressive process. Participation allows citizens to gain a “practice of democratic skills and procedures.” Although the educative feature of participation remains vital, legal scholars and political scientists have progressively stressed its influential value as a means against arbitrary power. As such – and as the author argued – democratic innovations in citizen participation redraw the classical forms of decision making found in representative systems by permitting citizens to have more impact in the political decision-making process by offering their own expertise.
Ninet argues that despite skepticism about the democratic implications of participatory constitution-making processes, the design of constitution-making processes can affect both the content and the legitimacy of the final document. He suggests that constitutions produced through more democratic processes tend to be more democratic. The conclusions on the effect of citizen participation on content of constitutions are not decisive, but several case studies point to the influence of participation on the constitutional content. For example, a comparative case study on many constitutional processes (e.g., Tunisia, Kenya, South Africa, Colombia) highlights that more participatory processes tend to create constitutions with more democratic framework including more provisions related to fundamental human rights defenses. Moreover, that participatory processes resulted in constitutions with provisions on social and economic justice and corruption that were needed by citizens, and also show that processes including referenda normally produce constitutions that are more likely to have numerous rights provisions. Hence, the book argues – successfully – that the more the role of citizens in constitution making upsurges, the more the quantity and quality of rights afforded by the constitution increase, advance and improve.
Bringing the Constitution Online: United States, Europe and Beyond – Several European countries along with few in the Middle East (Tunisia, Egypt) were among the first(?) countries in the world to use online means for constitution making. One of the most significant chapters is entitled “Crowdsourcing and Constitution-making.” In this chapter, Ninet argues that, in an effort to make constitutional processes as participatory as possible, crowdsourcing creativities have become a platform for public participation in the constitution-making process. After the Icelandic Constitutional Council pioneered crowdsourcing in 2011, other nations such as Egypt and Tunisia – after the failure of the 2011 Arab Spring – have used comparable attitudes to engage their citizens in the deliberation phase of constitutional processes. In this context, crowdsourcing could be defined as “that the constitution as the process of posting the draft constitution [or parts of it] online on official websites and[or] social media [p]latforms/webpages where citizens can propose/suggest recommendations to the draft and[or] vote on it.”
In this chapter, the author argues that generally, there is a prevalent optimism concerning the participatory potential of the internet. Although crowdsourcing cannot resolve the low levels of participation and the self-selection prejudice/bias intrinsic in participatory processes or “participation distortion,” online deliberation can eradicate geographical obstacles and bring a great variety of groups into the national deliberation. Moreover, no matter the numbers, participatory processes are significant because they give all citizens equal opportunity and right to participate and influence the final outcome. This chapter is critical from a comparative perspective. For instance, in Egypt, people participated in the crowdsourcing initiative, and made several contributions in the form of comments and/or voting “Like” or “Dislike” on proposed drafts for public review and feedback (e.g., collect and separate public feedback based on the means through which suggestions were submitted; documenting suggestions members of the public made during the deputies’ personal and those received via phone calls, fax, mail, e-mail, or written suggestions handed directly). The Egyptian case is unique because each draft article (provision) was posted online and changed several times following citizen’s feedback, as opposed to other cases where citizens could comment on only one draft (e.g., Tunisia). Thus, the Egyptian model, presents an extraordinary feedback loop of online public input and constitutional changes.
The “Crowdsourcing in Constitutional Interpretation and Control,” is another significant chapter in that book. It deals with numerous transitional countries with an authoritarian heritage, precisely when there is power imbalance between opposing groups. Accordingly, agreement among citizens over the most prominent issues can increase the prospect that those matters would be reflected in the constitution. The legacy of fascism and the abuse of citizens’ rights and freedoms in various places around the world, including the Middle East (and Ukraine at the moment) led to public concerns about provisions relating to citizen rights and freedoms and the wider bond between the state and society, as opposed to provisions regarding independent and regulatory bodies or public authorities. In these cases, the public obviously conveyed their concerns about these provisions, and their recommendations pushed change in articles affecting to rights. Also, citizen participation should follow ex ante elite consensus, as this shows the importance of agreement, and elite agreement in particular, for successful constitution making.
This chapter argued that the consensus among elites is even important for an effective participatory process. When conflict emerged among drafters, citizens lost their leverage. If there is no prior agreement on the broader design of the constitution, it becomes more problematic to integrate public proposals amid dispute or contention. In moments of transition, building a robust political will and trust among various political groups is one of the crucial initial steps for democratization, and whether a consensus occurs from the onset or it is preserved through the process has grave consequences for this trust building. In many nations, liberals and conservatives (e.g., Islamists and non-Islamists in Egypt) failed to sustain the risky agreement they reached early on in the process (e.g., 2012 ex post facto Constitution!). The absence of agreement, harmony and trust only made these opposing groups more doubtful of the other, ensuing in gradual restoration of undemocratic rules and loss of receptiveness and accountability to the public/citizens.
