Silvia Suteu, Women and Participatory Constitution-Making (May 30, 2017). Forthcoming, Helen Irving (ed.), Constitutions and Gender, Research Handbooks in Comparative Constitutional Law series, Edward Elgar Publishing, 2017. Available at SSRN: https://ssrn.com/abstract=2977228
Popular participation has become a hot topic in constitution-making, taking the form of referendums, popular consultations, civic education, and citizen assemblies, among others. Underlying this rise ofmechanisms of popular involvement in constitution-making are normative justifications for the direct participation of the people in such processes, including higher legitimacy and more inclusive and sustainable constitutions. Generally missing from these accounts, however, has been an investigation into the capacity ofparticipatory mechanisms to incorporate and respond to the views of women. While appeals to the people have been justified on the grounds of their increased overall legitimacy, less attention has been paid to who, precisely, participates when these mechanisms are set up and whether women are adequately represented and listened to.
This chapter seeks to begin filling this gap. It provides initial answers to the basic question of whether and how participation in constitution-making delivers for women. The chapter outlines the contours of the debate surrounding popular participation in constitution-making, then looks at three instances of popular involvement in constitutional change: the 2014 Scottish independence referendum, the 2012-14 Irish Constitutional Convention, and the 2011-14 Tunisian constitution-making experience, analysing the level and nature of women’s participation in all these processes. Subsequently, the chapter evaluates the successes and failures of participatory mechanisms such as referendums, constitutional conventions, and public consultations in empowering women as equal participants and the ability of these tools to ensure gender-sensitive deliberations. The chapter also raises questions as to whether participation is to be resorted to in all cases of constitutional reform and the propensity for it to be an obstacle to rather than a vehicle for gender equality.