External Advice and the Participation Imperative

Abstract

The proliferation of organizations tendering advice in constitutional processes requires an assessment of the advice that is typically given. External advisors are commonly not fully familiar with the countries in which they work. They usually provide standard operating procedures and standard constitutional provisions for consideration by inexperienced constitution makers. Among the process prescriptions that are nearly-universally advocated is advice to conduct a program aimed an involving the public extensively in the constitutional process, through a regimen of education about constitutions and solicitation of feedback and proposals from the public. Extensive public participation is asserted to confer legitimacy on a constitutional process and to improve prospects for democracy after the constitution is adopted. This chapter tests these assertions and highlights some of the high costs for deliberation and other goals of the constitutional process that are associated with these prescriptions. It proffers instead some alternative ideas for public involvement.