CTN Blog: "Reflections on the last decade of constitution-building"

By Prof Cheryl Saunders

The decade that is about to end has been a fast-paced time for constitutional transformation. The Arab spring came, went and shows signs of revival. Around 20 states made new constitutions, some more than once. Many more states changed existing constitutions in significant ways. An impression of the rate of activity cannot be gleaned from formal change alone, however. Some processes for change began but were abandoned (Chile) or remain in limbo (Libya). Other changes occurred without altering formal constitutional text through legislation (Bangsamoro Organic Law) or judicial decisions (arguably, the UK, as the pressures of Brexit threw up unusual litigation). The turn to authoritarianism through political action within existing constitutional frameworks may fall within this category as well, if it proves to be lasting.

Halfway through the decade, ConTransNet was formed, not only to monitor individual instances of constitutional change but to examine their collective, systemic implications. Three themes that characterised constitution-building in the 2010s are discussed below, all of which are the subject of ongoing work by ConTransNet.

The first concerns the link between peace-making and constitutional change. Many constitutional movements over the past decade have been prompted by conflict, to which constitutional change is seen as a partial solution. Inevitably, in these circumstances, there is some interdependence between the peace process and constitution making, the nature and extent of which varies with context. Inevitably, too, conflict, even technically intrastate conflict, attracts the attention of international actors. It is tempting in these circumstances to treat the constitution as part of the peace agreement, providing a convenient answer to the old problem of the enforceability of peace agreements with intrastate effect. This solves one problem at the expense of others, however, including the need for a constitution, whatever its roots, to work effectively over time. Better, it might be argued, to simply acknowledge that these processes are interlinked in the context of intrastate conflict, with all the complications that entails. The constitutional steps taken to implement the Bougainville Peace Agreement, at both the national and sub-national levels, is a case in point, on which ConTransNet has carried out two projects relating to Bougainville in recent years, one looking at constitutional implementation for sustainable peace and one specifically looking at the practical implications of the two options considered at the Bougainville referendum.

A second insight from the decade is the importance and difficulty of implementing new constitutional arrangements. This observation is by no means new, but has been reinforced by experiences across the decade, from Tunisia, to Kenya, to Nepal, to the Bangsamoro. The greater the change, the greater the challenge. ConTransNet has explored these issues in successive Melbourne Forums on Constitution Building in Asia and the Pacific in recent years, in partnership with International IDEA. The challenge of implementation may be exacerbated by the involvement of international actors, with ideas for change that are unfamiliar and with mandates that end once a constitution is in place. The ubiquitous notion of national ownership presumably forms part of the answer, although there is more to be done to understand exactly what this involves and how it can best be given effect.

A third group of collective, systemic insights concerns the role of people in constitutional change. In a sense, at least since the advent of the ‘modern’ constitution, the people have always been central in constitution-making, as the source of symbolic authority, if in no other way. Since at least the early 1990s, however, it has become expected that constitution making will involve the people actually as well as virtually, complementing symbolism with actual public participation. The jury remains out as to how and when this can best occur, so as to contribute to a constructive outcome; issues that were explored by the 2019 Melbourne Forum. More recently still, in any event, the character of public involvement has taken several other turns. In some instances, of which Chile, Algeria and Sudan are examples, public protest has again proved a catalyst for change, often with active or at least passive support from the armed forces. In other contexts, organised forms of public deliberation have emerged to complement representative processes for decisions on key questions, including those of a constitutional kind. Despite the prevalence of Citizens’ Assemblies and equivalent processes, this development is still in its early stages. ConTransNet team members Tom Daly and Cheryl Saunders hope to make progress in constructing a framework of theory and practice, with interested students in their MLM subject in March 2020, Bringing in the People.