In an article for the Constitutional Law Group, Katie Boyle has raised a number of important issues (1). Here we want to take up the question of how “We The People”, many of us, and from a broad spectrum of society, can become genuinely involved in making and finally deciding upon the new constitution of our state and country.
The prospect of making a new constitution of state is seen by some as important and perhaps exciting but by many as mystifying or remote. The experts and politicians (not all are expert) bear responsibility to inform the people about the process and to ensure that it can be readily understood.
How can real participation in the process of constitution building be enabled and promoted?
Boyle asks what shall be the role of direct democracy in making and (if necessary) revising our constitution. She wisely notes that, “a great deal of consideration would require to be given to creating a deliberative framework that engenders legitimacy in the eventual outcome of the Constitutional Convention process through mechanisms ensuring substantive inclusion and participation.” Further she writes, “The Scottish Parliament, and latterly the Convention itself, would also need to consider whether there should be some form of framework from which the constitution-making process should begin – through for example embedding fundamental constitutional rights ….”
In an essay about democracy and constitution-making, we asked, “A crucial question, … namely, how can we make ourselves a modern constitution when the “constitution” and related tradition which we appear to possess provide no suitable tools for the job? Given the essential and fundamental role played and to be played by electorates in making and changing modern constitution …., it appears most urgent that we should give ourselves the instruments of citizen-led democracy in order, as a people, to make, re-write and modernise our state constitution.” (2). These instruments, as fundamental constitutional rights, should be activated as soon as possible, so that they may be applied to forthcoming, vital constitutional and legislative tasks.
We endorse Boyle’s suggestions to create “a deliberative framework that engenders legitimacy” and that there should be “substantive inclusion and participation” of the people. Parliament, the Government and the Constitutional Convention, especially after a “Yes” vote, must respect and not “forget” that ultimate political power in the state is held by the people. The practical expression of citizens’ sovereignty is in “political rights” (compare the Swiss constitution, “politische Rechte”). These political rights must be practicable and applicable or sovereignty will remain no more than a slogan. In the draft constitution, our political rights are formulated as follows, “The sovereign will of the people is expressed in the constitution and, in accordance with the constitution and laws made under it, through the people’s elected representatives, at referendums and by other means provided by law.” (3). This statement, which resembles the Universal Declaration of Human Rights (Article 21) (4) and the Swiss constitution (5), implies that governance shall be both direct (with ballots on public issues) and indirect (electing politicians as deputies or representatives). We call on Scotland’s Parliament and Government, as soon as possible, to make a public declaration which clarifies how these our direct and indirect political rights may in future be exercised. The people, not politicians must be in charge. In addition to the statement about referendums and elections (3) this new declaration, which deserves a status such as “CHARTER OF POLITICAL RIGHTS” should follow the Swiss (written) constitution by sealing and clearly defining our right to use the instruments of direct democracy, tools for citizen law-making such as the citizens’ initiative (proposition), the citizen-instigated legally binding referendum, the veto referendum, in short the rights to make and change any law including constitution. These tools of direct democracy do not replace, but enhance, parliament and government. This mirrors the constitution of Switzerland (5) which contains a guarantee similar to the international declaration mentioned above (4) and IN ADDITION spells out the methods of democracy which can be used without further acts or interference by politicians. These are fundamental rights which can be changed only by the PEOPLE themselves in a referendum. The Swiss section about citizens’ POLITICAL RIGHTS reads as follows:
Article 136 Political Rights
2 Citizens using direct democracy can both instigate and endorse (sign) citizens’ initiatives — law or policy proposals — and legally binding referendum ballots. Citizens can take part in elections of Members of Parliament.
Chapter: Initiative and Referendum
Article 138 Citizens’ Initiative for change to constitution
A hundred thousand citizens can instigate a binding referendum by endorsing an initiative-proposal within 18 months of its publication.
Article 141 Veto Referendum
Fifty thousand citizens (within a defined time period) can demand that a government law or proposal must be put before the whole electorate for decision in a ballot.
These principles and rights to have operable democracy, whether as part of a new charter or in other form, could well be later adopted by the Convention, with a strong view to their inclusion in the final constitutional draft.
1. Katie Boyle: Scotland in Transition: the Scottish Government’s Proposed Interim Constitution and the Scottish Independence Bill
Constitutional Law Group, June 21 2014 · 9:49 AM Seen 21 July 2014 http://ukconstitutionallaw.org/2014/06/21/katie-boyle-scotland-in-transition-the-scottish-governments-proposed-interim-constitution-and-the-scottish-independence-bill/
2. Citizen-led democracy is essential for sustainable constitutional reform http://www.iniref.org/latest.html
3. The Scottish Independence Bill: a consultation on an interim constitution for Scotland
The Scottish Government, Edinburgh 2014 ISBN: 978-1-78412-545-5
Extract concerning sovereignty and democracy
Sovereignty of the people
In Scotland, the people are sovereign.
The nature of the people’s sovereignty
(3) The sovereign will of the people is expressed in the constitution and, in accordance with the constitution and laws made under it, through the people’s elected representatives, at referendums and by other means provided by law.”
4. The Universal Declaration of Human Rights, adopted by the UN General Assembly on 10 December 1948 http://www.un.org/en/documents/udhr/
5. Swiss Constitution. Bundesverfassung der Schweizerischen Eidgenossenschaftvom 18. April 1999 (Stand am 9. Februar 2014) http://www.admin.ch/opc/de/classified-compilation/19995395/index.html
Campaign for direct democracy in Britain
Citizens’ Initiative and Referendum I&R ~ GB
http://www.iniref.org/ Link to site index