On Dec. 6th #CitizensRoute initiated its second e-tribune “Constitution and/or democratisation ?“. Our guest speakers, Jens Baganz -We are Europe, David Carayol -Newropeans2009, Erik Edman -DiEM25, Yves Gernigon -PFE, and Adrian Taylor -iCAN, were invited to share and assert their position on this issue by answering namely two sub-questions among following ones :
- 1- What do you mean by “constitution” ?
- 2- Constitution or democratisation first? Or both and how?
- 3- How understandable is the drafting of a constitution for the general public?
- 4- Is a constitution compatible with 21st century principles of flexibility? What else?
Adrian Taylor, representative of iCAN and co-founder of the #CitizensRoute, argued on the issue on sub-questions:
- 2. Constitution or democratisation first? Or both and how?
- 3. How understandable is the drafting of a constitution for the general public?
Read his arguments:
#CITIZENSROUTE E-TRIBUNES 06.12.2017: Constitution and/or democratisation ?
∴ Which should come first: Democratisation or a Constitution?
In my book, democratisation comes first.
Firstly, it is very important to understand that constitutions (and indeed the EU treaties) are living documents that are politically interpreted, and hence evolve over time. If we look at history, it was not foreseen in the US constitution that the President should be elected (even indirectly) by the citizens. Washington himself warned against “an excess of Democracy”. Instead, the electoral college members were to be nominated by the states and “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” But very quickly some individual states decided that the best way for them to appoint their electors, was by having them popularly elected. This led to a public demand in other states for their electors to be voted on as well… and gradually the system was forced to change, and indeed the role of the electoral college was then also adjusted with the 12th Amendment – but after, not before – the democratisation on the ground had changed the facts.
Hence secondly, learning the lesson from history, there is no reason why the EU cannot follow the same path of change bottom-up, Member State by Member State. And here, there is good news. Already three Member States – France, Italy and Belgium – have declared they are in favour of trans-European lists. At present, they then add (with a sigh!) that sadly they cannot implement this at the other 24 MS (I already count the UK as expelled) will not join in, and anyway, getting a treaty reform before 2019 is impossible. Of course, they are right. But they miss the point. There is absolutely nothing to stop these three countries creating a trans-national list for a small portion of their own seats (say 10%) for which they change their national law on European elections (and it is national laws that govern the EP elections, which is why electoral systems are still different for this “common election” in each MS) and they can insist that trans-national lists with candidates from all three participating countries be voted on as part of the 2019 elections. Time still exists for that to be done, as no EU authority is required to sanction it! And who knows, if they start doing this, the demand will get louder and louder elsewhere for the same to be done in other MS too.
And thirdly, as we cannot expect that governments alone will carry the burden, civil society must work bottom-up, generating trans-European political debates, pushing for political parties to be genuinely trans-European, and creating a European political space…
∴ And how understandable is a constitutional process to a normal citizen?
The short answer is, not at all, but perhaps that is not the right question.
First, the bad news. The European method for treaty change (and which prepared the so-called constitution over a decade ago) is a combination of wise-men groups (and usually it was men and not women!) followed by an Inter-Governmental Conference, where line-by-line treaty amendments were hammered out. The result, an (for most people) incomprehensible list of articles complete with exceptions and opt-outs. But if we are honest, most national constitutions are also not exactly page-turners for bed-time reading. I suspect that if most national constitutions were put to a public vote, they would also be not understood, and in some cases, found to be wanting.
So perhaps the question is wrong, as we cannot turn all citizens into constitutional experts – and should not wish to. Instead, we can look at the experiments run in various places for including citizens in different ways. Iceland is a case in point, where, after the 2008 crash, a group of civil society activists brought together a 1000-citizens in a carefully moderated process to identify what they thought the common values of the country should be. This was so successful that politicians were felt obliged to turn up – but were not allowed to speak, instead they had to just listen. And because it was a carefully planned and moderated process (not a sham consultation as most hearings seem to be), there were concrete results identifying the values and their implications. In a second phase, it was then decided to develop a constitution by drawing on a group of citizens, chosen at random, and who came from all different demographics in the country. Certain “experts” claimed that such citizens could never write a constitution, but they did. And they called upon experts in the process – but did not let them dominate. However, thereby also hangs a tale: by the time the constitution was produced, the political forces in the country had again shifted, and those then in power did not want to hear anything about a new constitution.
For the EU, the lesson is clear: we need real consultation processes, that are thought through, moderated, and accompanied by experts – but not dominated by them. Moreover, we would then need a political relay that could carry forward the work done by the citizens without letting the governments interfere again, and ram in all their exceptions. This will not be possible in a “normal” time, but could work by convoking an “Assises” of national parliaments (as often called for by the most excellent Virgilio Dastoli) and especially if done at a time of crisis.
Adrian Taylor, 07.12.2017