O processo constituinte inclusivo: fundamentos teóricos, evidências empíricas e dinâmicas governantes

Abstract

It addresses the importance of an inclusive constitution making in drafting a national constitution. It highlights the profile of current constitutions, through empirical studies by lawyers, political scientists and economists. It offers theoretical foundations that justify the need for a constitution making that is not only participative but inclusive as well. It exposes possible benefits and dangers arising from a widely participatory constitution making. It considers the importance of 'pre-constituent arrangements' for the implementation of a constituent process, as well as its consequences for inclusion in that process. It makes recommendations on what should be the political arrangements for a constitution making and what would be the best sequencing for inclusion. It argues that the constituent process must be seen as an enterprise with five distinct stages: pre-constituent arrangements, preparation, convening, debate and approval. Discusses the key issues involved in each of these stages. It makes recommendations on what would be the best practices and choices possible at these stages for a constitution making process to be more inclusive. It analyzes three constituent processes considered by the literature as widely participatory. Quantitative and qualitative empirical evidence as well as theoretical foundations and recent constituent experiences are offered. It was noted that it is impossible to prescribe in detail a single design for constitution making process, given the importance of the contexts in which it takes place. It concludes that it is possible, however, to identify and discuss a number of common issues that can be considered as fundamental or necessary throughout the constitution making that is inclusive.