Constitutions count. What does tech do?

Constitutions count.  In a democratic society ruled by law, they distribute power among institutions and determine how it is gained and how it is lost.  The process of preparing one after civil war or dictatorship is particularly fraught, as we are seeing in the recent Arab Spring revolutions.  Society is divided, who truly represents “the people” is unclear, how those who draft the constitution are chosen is problematic, and power still grows out of the barrel of a gun.  How does a constitution avoid capture by armed elites and gain popular legitimacy in these difficult situations?  What role can and should the public play?  How can technology best contribute?

A group of experts on constitution-making and on technology met last week in DC to discuss these issues at a roundtable co-hosted by Johns Hopkins School of Advanced International Studies and Google Ideas.  Some conclusions on constitution-making were clear:  the process should be seen to be transparent, it has to fit the particular context in which it is occurring, and it has to create or demonstrate a broad, inclusive consensus around main issues.  The ways in which technology can contribute are still the subject of experimentation.  It can facilitate public participation by enabling substantive citizen inputs to the text of a constitution, improving transparency, enhancing civic education and expanding inclusiveness. The drafting of a constitution can also benefit from technology that makes the body of all past constitutions discoverable and searchable.

The constitution-making experts see the process as a complex one that includes not only public participation but also judicial engagement and external assistance in deliberating, drafting, adopting, promulgating and implementing a new constitutional order.  The South African process is often viewed as the best example and imitated elsewhere, because public participation ensured the post-apartheid constitution’s legitimacy, even though there was little apparent impact on the constitutional text, which remained virtually unchanged.  Even where public participation has had an impact on the text, it is rarely extensive.  Historically, relatively few provisions have attracted intense public scrutiny.

Legitimacy also depends to an important extent on the transparency of the constitution-making process as well as public understanding of the outcome.  A good constitutional process lays the foundation for good implementation and the creation of a culture of constitutionalism.   This is particularly difficult to achieve if the constitution is the product of an international intervention, as in post-war Bosnia, Kosovo and Iraq.  There international officials actually wrote the initial constitutions, with little consultation with local citizens.  What the internationals consider “universal” principles do not necessarily translate well.  It might have been better to adopt a transitional or provisional constitution, (as in Tunisia and Libya) that can be used until the local population is in a position to conduct its own constitution-making process.

When the time comes for a locally prepared constitution, the process needs to be transparent but still allow for elite deal-making and technical drafting behind closed doors.  Not everything can be done in public, as some compromises will embarrass participants with their own constituencies.  Expectations need to be managed.  The public should not be led to believe it will have an impact on the drafting if in fact it will not, which happened in Iraq.  Over-promising in post-conflict situations creates big difficulties.  So too does drafting that is piecemeal or uncoordinated.  The pieces of a constitution need to fit together, without leaving gaps and overlaps that will create problems later.  It is also important to provide a suitable mechanism and threshold for amendments, which are difficult decisions in post-war situations.

Technology-based experiments conducted so far in connection with public participation in constitution-making processes include those in Iceland, Tunisia, Egypt and Somalia.

The recent Icelandic constitution-making process included weekly publication of drafts and an extensive dialogue on Facebook, Twitter and Youtube conducted by members of the drafting committee.  This enabled direct interaction with interested members of the public, who were able to comment on a website as the draft evolved.  Out of a national population of 300,000, there were 40,000 visitors to the site, 12,000 views on the YouTube channel and 3,600 comments.

In Egypt and Tunisia, Google supported the creation of web platforms that provided YouTube videos for voter education and enabled the general public to comment on all the individual articles of the constitutions. On the Egyptian site, articles could be sorted by how happy users were with them and how hotly debated they were (using Face book ‘likes’ and ‘comments’, respectively).  This gave the drafters clear input and enabled the public to verify that their views were taken into account, but it allowed for little nuance.  Egyptians have made upwards of 150,000 “inputs” to the constitutional process.

In Somalia, Voice of America (VOA) and Google Ideas partnered in a telephone survey conducted by professional Somali journalists skilled in asking questions and getting answers. Each survey’s results were discussed on daily political talk radio, with call-in listeners and even directly on-air with the Somali Prime Minister. This allowed people living in a precarious security environment to give their opinions while remaining anonymous.   The polling reached over 3,000 people.

None of these experiments is definitive but some have already been transplanted from one context to another.  All illustrate the potential of technology to open the constitution-making process and build legitimacy and trust in the public eye.  But they tend to favor the technology-enabled part of the society, which may amplify the influence of some parts of society at the expense of others.  They also favor individual contributions and may disadvantage some technology-poor civil society organizations.  Direct democracy is not necessarily good democracy.  Especially in post-conflict societies, there is the real possibility of illiberal results.  We need to be careful not to harm the democratic process.  Technology should enable constitution-making, not drive it.

There is also an important role for technology in supporting the drafting process.  More than anything else, drafters want examples of how to deal with their problems. They often turn to the constitutions of countries that share their geography, culture or language, to find possible models and appropriate solutions, even sometimes copying typographical errors.  No easily retrievable central repository of these documents currently exists. The Constitution Explorer project, run out of Stanford University and the University of Texas, aims to change that, by collecting and coding the world’s constitutions for the past two hundred years. This kind of toolbox is what those charged with drafting most need to avoid pitfalls and improve their own product.

This applies more broadly as well.  There is no definitive solution to the problem of how technology can contribute to public participation in constitution-making.  There is a growing variety of tools that may be appropriate—or not—in particular contexts.  Where they work well, they can improve not only substantive input but also transparency, accountability and civic education, leading eventually to a democratic and constitutional culture.