Constitutional Crowdsourcing: Democratizing Original and Derived Constituent Power in the Network Society by Antoni Abat Ninet, a Book Review – Part II

June 25, 2024

[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 almaslah al‘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 ante ijma‘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:

1. 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.
2. Publicly Justify/Debate Procedural 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.
3. 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.
4. 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.
5. 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.