Melbourne Forum 2017 - Final Report

In 2017, the Second Melbourne Forum on Constitution Building in Asia and the Pacific brought together scholars and practitioners from across the region to discuss issues raised by decisions about the relative magnitude of constitutional change.

Colloquially titled From Big Bang to Incrementalism, the Forum canvassed questions about the magnitude of change in terms of both process and substance.

• Process involved questions about whether change is effected through a new Constitution, with or without legal rupture; by alteration of an existing Constitution; or by avoiding, limiting or postponing formal constitutional change altogether in ways loosely characterised as deferral.
• Substance involved major institutional change, with particular reference to changes to the form of government or the form of the state.

Focusing on selected regional case studies, the Forum sought to throw light on why particular decisions about magnitude are made; at what point in a Constitution building process; and with what consequences. In each case, attention was paid also to sources of comparative experience and international influence.

The Melbourne Forum is jointly organised by International IDEA and the Constitution Transformation Network at the University of Melbourne (ConTransNet). The purpose of the Forum is to explore the contribution to global Constitution building experience of the richly diverse Asia-Pacific region. The Forum also fosters a network of informed and knowledgeable people across the region who can derive benefit from contact with each other and on whose expertise both International IDEA and ConTransNet can draw.

Each Forum is built around a theme of global significance for Constitution building. The questions of process and substance canvassed by the 2017 Forum are also important elsewhere in the world, and the inclusion of Chile and Argentina provided comparative insights from the Latin American region. The Forum was held in Manila, where these issues are particularly pertinent. The Philippines is currently considering options for major change to the Constitution of 1987, with a possible view to adopting both federalism and a more parliamentary form of government. The Forum was hosted by the Political Science Department at the University of the Philippines, Diliman, in collaboration with International IDEA and ConTransNet.

The Melbourne Forum relies on dialogue between participants. To structure the dialogue, the principal questions for each session are clearly identified, in a way that supports the overall aims of the Forum itself. Each session begins with an examination of 3-4 case studies relevant to the questions asked. The panellists prepare written answers to the questions in advance, on the basis of which discussion can occur.

In 2017, the Forum was structured around 5 substantive sessions, followed by one concluding session, to draw key issues together from different perspectives.

A series of policy papers will be published in due course, drawing on the deliberations of the Forum. The purpose of this Report is to make the case studies and some of the key insights publicly available as quickly as possible. The Report is organised by reference to the Forum sessions and comprises the responses of each of the participants to the questions asked. Some of the responses are still being finalised for publication in this form. They will be added progressively as soon as they are available.

The interim conclusions from the Forum are canvassed at the end of the Report, in the account of the final session. One general set of conclusions may be stated here, however. All constitutional change is significant, however it occurs and whatever it involves. Choices about relative magnitude are likely to be driven by a range of factors, many of which depend on local context but some of which may be externally driven as well. All such decisions have consequences that need to be anticipated and understood, to the extent to which that is possible.

At the same time, however, the significance of the distinction between the various options for change should not be overstated. A new Constitution may incorporate familiar institutions from the past; an amended Constitution may make radical change. The process followed to make a new Constitution may be prescribed by the old one; the processes for amendment of an existing Constitution may be augmented to enhance the legitimacy of the changes that are made. There are gradations of unitary and federal systems that shade into each other, and the same is true of the distinction between presidential and parliamentary systems. Big bang to incrementalism is by no means a binary choice: rather it identifies a spectrum of experiences along which constitution building occurs.

The success of the Forum was due to the knowledge, skills and commitment of all the panellists, chairs and support staff from all three institutions. Thanks are due to them all.

Panellists whose work appears, or will appear, in this Report are: Zaid Al-Ali (Iraq); Jimly Asshidique (Indonesia); Sadaf Aziz (Pakistan); Benny Bacani (Philippines); Gautam Bhatia (India); Sumit Bisarya (International IDEA); Gunbileg Boldbaatar (Mongolia); Uwanno Borwornsak (Thailand); Wen-Chen Chang (Taiwan); Miriam Coronel Ferrer (Philippines); Javier Couso (Chile); Rohan Edrisinha (UN); Chaihark Hahm (South Korea); Dipendra Jha (Nepal); Eric Kwa (Papua New Guinea); Vijay Naidu (Fiji); Keanneth Nanei (Bougainville); Gabriel Negretto (Argentina); Warren Paia (Solomon Islands); Paikiasothy Saravanamuttu (Sri Lanka); Cheryl Saunders (ConTransNet); Saniia Toktogazieva (Kyrgyzstan); Min Zaw Oo (Myanmar); and Mariyam Zulfa (Maldives).

Constitution building in any state with an existing Constitution involves a decision whether to amend that Constitution (or, sometimes, an older one) or to make a new Constitution.

Obviously this is not a choice that needs to be made where no Constitution existed before as, for example, in Timor Leste. In other circumstances a new Constitution may effectively be necessary because, for example, the previous one has lapsed and cannot practically be reinstated; or is considered illegitimate as foundation for transition (arguably, the Philippines in 1987); or is necessitated by terms of a peace agreement. In other cases, however, the decision may be more open and the choice may be governed by a wide range of legal, political, symbolic, or pragmatic factors.

Whether the choice to make a new Constitution is deliberate or not, it is relevant to the questions of how and why particular Constitution making procedures were used and how the expectations and tensions generated by a major constitutional moment were managed. Depending on the circumstances, a decision to make a new constitution may also have implications for the perceived legitimacy of the Constitution and the challenges of constitutional implementation. Potentially, in these circumstances, all existing institutions are subject to renegotiation and change. The process also may be time consuming, raising questions about how the country is governed in the interim.

The case studies explored issues relating to:

• The factors that influenced the decision to make a new Constitution rather than amend an existing or former Constitution;
• The point in the process at which it was decided to make a new Constitution, and how this decision was made;
• The process for making the new Constitution and how it was managed;
• Ways in which legal continuity was or was not maintained;
• How much, if any of the old Constitution was retained in the new Constitution;
• The sources of comparative experience and other international influences brought to bear on constitution making; and
• What might have been done differently in hindsight and insights for other countries dealing with similar issues.

This session explored the experiences of states that choose to amend an existing Constitution rather than make a new one.

In some cases a decision to amend rather than replace is effectively dictated by circumstances, ranging from the scope of the changes envisaged to the politics of constitutional change. In other cases, the decision is more open, although there always will be factors that influence the choice that is made. In a few cases, of which the Philippines is an example, the existing Constitution provides for choice between amending procedures, raising further questions about a preference for one or another. And in some cases, there may be an option for returning to and amending an earlier Constitution, rather than the one that is presently in place.

Whatever the motivation, the decision to proceed by way of amending an existing or previous Constitution has consequences, for the processes that are followed and, perhaps, the outcomes achieved. On balance, constitutional amendment is more likely to retain the pre-existing legal and institutional framework than formal constitutional replacement. And in some constitutional systems, constitutional amendments also are subject to review by a court.

The case studies explored issues relating to:

• The factors that influenced the decision to amend the existing Constitution rather than make a new Constitution;
• The point in the process at which it was decided to amend the Constitution and how this decision was made;
• Ways in which legal continuity was or was not maintained;
• The choice of formal procedures for constitutional amendment and other supplementary procedures;
• The effect of the possibility of judicial review on the scope of the amendments;
• The sources of comparative experience and other international influences brought to bear on constitution making; and
• What might have been done differently in hindsight and insights for other countries dealing with similar issues.

Case studies:

Indonesia – Jimly Asshidique
Pakistan – Sadaf Aziz
Taiwan – Wen-Chen Chang
Argentina – Gabriel Negretto

Alteration of the form of government is an example of one kind of major substantive shift sometimes undertaken in the course of Constitution building. The magnitude of change is greatest with a move between the extremes of a parliamentary and a presidential system. There are variations in between, however, which can involve significant change as well.

Variations between parliamentary government on the one hand and presidential systems on the other typically involve arrangements in which there is both a leader of the government (Prime Minister) chosen by reference to the composition of the Parliament, and a President with significant power who normally is directly elected. Depending on the respective powers assigned to the Prime Minister and the President, arrangements of this kind may be ranged at different places along the parliamentary/presidential spectrum of possibilities.

Not all aspects of the form of government are set out in the text of the Constitution and much important detail inevitably is left to legislation or political practice, typically during the implementation stage. A change of this kind is so central to the system of government, however, that a framework for it, at least, is always constitutionally provided.

A decision to change the form of government in a substantial way may be influenced by a variety of considerations including dissatisfaction with current arrangements and a perception that restructuring could lead to improvement in stability, effectiveness or representation. Any such change requires care in design and implementation, however, and may have consequences for the structure and operation of politics that are difficult to predict. Where a change of this kind is combined with devolution, as sometimes is the case, it is necessary to consider how the two intermesh as well, in terms of both practice and design.

The case studies explored issues relating to:

• The factors that influenced the decision to make a significant change to the form of government;
• The reasons why it was decided to make a substantive change to the form of government rather than reform the existing presidential or parliamentary system;
• The most difficult questions that arose when designing the changes;
• Challenges for implementation;
• The sources of comparative models and other international influences brought to bear; and
• What might have been done differently in hindsight and insights for other countries dealing with similar issues.

Case studies:

Kyrgyzstan – Saniia Toktogazieva
Mongolia - Gunbileg Boldbaatar
South Korea – Chaihark Hahm
Sri Lanka - Paikiasothy Saravanamuttu

Devolution of some kind often is undertaken in the course of Constitution building. There are degrees of devolution, however, which can be ranged along a spectrum from forms of decentralisation at one end to arrangements that offer more substantial local autonomy at the other. The latter include federalism or provision for special autonomy for particular parts of the state.

Federalism affects the character of the state, in the sense that it is no longer unitary (if it was before). Special autonomy can be achieved within a framework that otherwise is unitary (although tensions may arise, between competing principles or competing practices). The two also may be combined, in a federation that is asymmetric, in the sense that some parts of the state enjoy deeper federal autonomy.

Movement from a unitary system to create either special autonomy or, more particularly, federalism, involves major, substantive constitutional change, although the extent of the change depends on the detail of the arrangements planned or adopted. These decisions may be influenced by a variety of considerations. Some form of devolution often is suggested by considerations of efficiency or the need for local responsiveness. Deeper forms of devolution may be pursued in response to regional inequality, to accommodate diversity, as a form of check and balance or as part of a package of measure to resolve conflict, or to provide a means for peaceful co-existence.

The purpose of this session was to examine why and how deeper forms of devolution are undertaken through constitution building and the challenges that result, both during the making of the Constitution and in its implementation.

The case studies explored issues relating to:

• The factors that prompted the decision to make significant changes to the form of the state through devolution or federalism;
• The approach taken by constitution makers to negotiating and designing a new federal or devolved system;
• The kinds of issues that arose negotiating and designing a new federal or devolved system and how they were resolved;
• Challenges for implementation;
• The sources of comparative models and other international influences brought to bear; and
• What might have been done differently in hindsight and insights for other countries dealing with similar issues.

One technique that can be employed in managing significant constitutional change is to defer or postpone certain decisions. In a sense, all Constitution building exercises defer some decisions by selecting matters to be included in a written Constitution while leaving others to be handled by legislation, judicial interpretation or political practice. Some constitutional traditions leave far more to later implementation than others. Deferral has potential, however, for decisions that are controversial and threaten the sustainability of peace or the Constitution building process itself. In especially fraught conditions, deferral might involve postponing Constitution making altogether, to a more propitious time, making do in the short term with legislative change or interim arrangements.

This session concentrated on more specific examples of deferral, in which particularly difficult issues are taken out of the immediate Constitution building process with a view to dealing with them at some later stage through constitutional change, organic or ordinary law, judicial interpretation or in some other way. This will not be an option for issues that, for one reason or another, need to be dealt with from the outset. There may also be a risk that an issue that has been postponed may never be revisited at all.

Deferral may be reflected in the constitutional text in different ways. Where a particularly difficult issue is not resolved in the course of constitution making, deferral may be accompanied by a facilitating provision in the Constitution to assist resolution in the future when the opportunity arises. A relatively uncontroversial position may be preserved in the Constitution, but with mechanisms to enable reconsideration and change, such as low thresholds for constitutional amendment (as was the case with state boundaries in India); provision for a periodic review of the provision or indeed the entire constitution; a sunset clause which provides that the provision expires after a certain period of time; or simply a power to vary the constitutional provision by legislation. In some cases, a provision might be drafted in terms that are deliberately vague, leaving future resolution to judicial decision or political practice. In the unusual case of Bougainville, postponement of a referendum on independence for a fixed period of years was based on a peace agreement between the parties, witnessed by representatives of neighbouring countries and the United Nations.

The case studies explored issues relating to:

• The kinds of issues that were deferred and why;
• The drafting or other techniques used to defer the issues;
• How the decision to defer was made, and by whom;
• The ways in which deferral assisted the general peace making or Constitution building process; and
• The insights that can be from past experience with deferral, in relation to the kinds of issues that can effectively be deferred and the conditions in which deferral occurs.

Case studies:

India – Gautam Bhatia
Fiji – Vijay Naidu
Iraq – Zaid Al-Ali
Bougainville – Kearnneth Nanei

The final session drew together the range of insights into choices about the magnitude of constitutional change from the case studies, for Constitution building generally and with particular reference to the Philippines where significant change is currently under consideration. It also provided an opportunity to reflect on the international assistance to in constitution building, as an overarching issue across all of the sessions.

• Insights from the perspective of international institutions – Rohan Edrisinha
• Insights from the Philippines – Miriam Coronel Ferrer
• Insights on key questions – Cheryl Saunders
• Closing remarks - Sumit Bisarya