Melbourne Forum 2018 - Interim Report

In 2018, the Third Melbourne Forum on Constitution Building in Asia and the Pacific brought together scholars and practitioners from across the region to explore the implications of culture for the making and implementation of constitutional change, in processes collectively conceived as ‘constitution building'.

Culture affects constitutional arrangements in all parts of the world. Melbourne Forum 2018 explored these issues with primary reference to the countries of Asia and the Pacific, as a vast and diverse region of the world that represents a substantial component of global constitutional experience. The Asia‐Pacific region offers a particularly useful context for the theme of this Forum. Asia and the Pacific are home to an extraordinary variety of cultures. In many cases, aspects of culture have deep historical roots; in at least some, culture is or has been implicated in conflict; everywhere, it is evolving. Constitution building has been a familiar phenomenon across the Asia‐Pacific in recent decades, interacting with aspects of culture, which the Forum was designed to explore.

The goals of the Forum were to explore the implications of culture for constitution building across Asia and the Pacific in order to:

• Better understand how culture affects the process and substance of constitution building generally and in transition to democracy in particular;
• Consider and compare experiences of how culture can enhance or impede democratic constitution building processes and outcomes;
• Explore how disagreements over culture within communities can affect constitution building; understand by whom and why cultural issues are raised; and identify options for resolving the resulting problems;
• Examine the challenges of culture for constitution building in multicultural states and identify options for dealing with them;
• Better understand the role of culture in the implementation of democratic constitutions, both generally and for the purposes of specific types of change (eg transition to a federal form of state or a secular state).
• Examine the implications of culture as a component of a constitution building context for informed and effective external assistance and advice.

Each of these goals has global significance. The insights gained from the Forum are useful, not only to assist understanding of constitution building in this important region, but also to inform global practice more generally.

The Melbourne Forum encourages 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 2018, the Forum was structured around 5 substantive sessions, followed by one concluding session, to draw key issues together from different perspectives.

The session themes and cases studies were:

1. Societal culture and constitutions: Tuvalu, Vietnam, Thailand
2. Constitution building in culturally diverse states:  India, Indonesia, Sri Lanka
3. Implications of constitutional culture for constitution making: Philippines, Myanmar, Japan
4. Constitutional culture in the context of implementation: Papua New Guinea, Bhutan, Maldives, Malaysia, Nepal
5. External assistance and culture: Timor Leste, Afghanistan, United Nations
6. Conclusions: CPA, International IDEA, ConTransNet

A series of policy papers will be published in due course, as part of the Constitutional INSIGHTS series, 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 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: Bui Ngoc Son (Vietnam), Eugénie Mérieau (Thailand), Eselealofa Apinelu (Tuvalu), Suhrith Parthasarathy (India),Denny Indrayana (Indonesia), Harini Amarasuriya (Sri Lanka), Akiko Ejima (Japan), Benny Bacani (Philippines), Ngun Cung Andrew Lian (Myanmar), Tenzin (Bhutan), Mariyam Zulfa (Maldives), Seira Tamang (Nepal), Stephen Pokawin (Papua New Guinea), Dian Abdul Hamed Shah (Malaysia), Aderito Soares (Timor Leste), Shamsad Pasarlay (Afghanistan), Rohan Edrisinha (UN-DPA), Dinesha Samararatne (Sri Lanka) and Sakuntala Kadirgamar-Rajasingham (Sri Lanka).

The achievements of the Forum lie not only in publications and an informed, frank exchange of views, as important as these are. The Forum also fosters a network of informed and knowledgeable people across the region who can derive benefit from continuing contact with each other and on whose expertise both International IDEA and ConTransNet can draw from time to time.

Culture is a complex concept, on which there is a huge literature. The Concept Note for the Forum deliberately cast the definition widely, to cover a broad range of assumptions, influences and practices. Drawing on Roger Cotterrell, it identified four components of culture, which illustrate a possible range:

• Beliefs and ultimate values (deriving from, for example, religion or ideological commitment)
• Inherited traditions (including shared historical experience, legal system)
• Material factors (the impact of, for example, levels of economic development, geography)
• Emotional attachments or rejections (for example, strong feelings about identity).

These components were not intended to be definitive, but to provide a starting point for participants in thinking about the impact of culture on constitution building.

The Concept Note also anticipated some of the properties of culture, which make it such a challenging idea to explore. Culture may be deeply influential where it is engrained in the life of a community. It is neither static nor monolithic, however. It evolves naturally over time, in response to changing conditions. It may deliberately be shaped, for example, by new constitutional arrangements. In the current era of globalisation, cultural evolution may be more rapid than ever. What culture involves and whether or not change is required or has taken place may be contested within communities, presenting yet another dynamic for constitution building to take into account. Culture is not necessarily determinative of particular outcomes but is relevant in constitution building to the extent that it shapes the way in which people think about the issues and options at stake.

From the standpoint of constitution building, culture may be positive, negative or neutral. Many aspects of culture provide useful building blocks for a constitution building process or for the constitutional changes that are made. Where culture is the cause of deep division or violent conflict, however, this needs to be tackled in both the process and substance of constitution building, in order to build cohesive communities. Where culture is invoked to justify or excuse discriminatory or other practices inconsistent with international norms or sustainable peace, this needs to be tackled as well. These difficulties may be heightened if constitution building provides a catalyst for the revival of cultural claims, selectively drawing on history, religion or tradition.  The challenge for constitution building is to determine how the benefits of culture can be maximised and how any difficulties may be managed.

Three case studies were presented in support of this session's theme, from Tuvalu, Vietnam, and Thailand. The case studies explored the following questions:

• How does culture (values, tradition, material factors and emotional attachments) affect choices about constitution making process and the substance of constitutional change?
• Who makes claims to culture? How is culture used to further a constitution building project? Can the concept of culture be misused or abused in this context?
• How do concepts of culture intersect with other more specific identity issues such as religion, gender and socio‐economic status?
• Do aspects of culture provide points of constitutional continuity? If so, how?
• What impact does constitution building have on the evolution of culture within communities?

• In what ways is culture reflected in the substance of a Constitution, including constitutional text? What are the implications (both positive and negative) of this, for example for local ownership, national identity, constitutional interpretation? Where culture is not reflected in the substance of a Constitution, how do the two co‐exist?
• What are the implications of culture for (i) inclusive constitution building processes and (ii) the effectiveness of external assistance?

Case studies:

• Vietnam: Dr Bui Ngoc Son
• Thailand: Ms Eugénie Mérieau
• Tuvalu: Ms Eselealofa Apinelu

If culture has implications for the process and substance of constitution building, any significant cultural diversity may need to be factored into both. Where cultural diversity has been implicated in divisions of the kind that lead to violent conflict, constitution building may offer a partial solution. In these circumstances, constitution building must take account of the realities of cultural difference in the way in which settlement is reached and the constitutional arrangements that are put in place.

There were three case studies for the purpose of this theme, from India, Indonesia and Sri Lanka. The case studies explored the following questions :

• What aspects of culture affected the constitution‐making process at the time?  Who made cultural claims and why?
• How was cultural diversity accommodated as part of the constitution‐making process, if at all?
• How was cultural diversity accommodated as part of the substance of the constitutional settlement? With what outcomes?
• Where and how was the balance struck between accommodating cultural diversity and social cohesion?
• What lessons might be learned from this experience, for other multicultural societies?

Choices about the processes for constitution making and (legitimate) mechanisms for approving and promulgating a new constitution differ across the world, in part because of the different values and traditions of constitutional systems.

Particular substantive choices may be affected as well, by considerations that can be described as cultural in character. Examples include an aversion to divided sovereignty; a particular understanding of secularism; or a preference for constitutional control by a specialist Constitutional Court rather than a general apex court.

Constitutional culture can be disaggregated into the same four components described earlier in relation to culture more generally. Thus, constitutional culture encompasses beliefs and fundamental values (eg unity, liberty, solidarity, harmony); inherited traditions (eg a particular understanding of constituent power or the manner in which a new constitution achieves legitimacy); material factors (eg population size, poverty, inequality, difficulties of communication); and emotional concerns (eg a fear of secession).

As with any other understanding of culture, constitutional culture may be internally contested and is subject to change. Developing or adapting constitutional culture becomes particularly important for the implementation and maintenance of significant constitutional change, such as a transition from authoritarian to more democratic and pluralist regimes; from a unitary to a more devolved system of government; movement between presidential and forms of parliamentary systems; from a religious to a secular state, or vice versa; or from winner‐take‐all government to more consociational arrangements.

There were three case studies for this theme, from Japan, the Philippines and Myanmar. The case studies explored the following questions :

• How did constitutional culture affect the processes chosen for constitution building? How were those choices made?
• How did constitutional culture affect choices about the substantive changes to be made?
• Where constitutional culture had implications for constitution building, what are the sources of origins of this culture? Was it simply assumed? Was it contested?
• What advantages or disadvantages followed from accommodating or not accommodating existing constitutional culture? What lessons might be learnt from these experiences by other states, embarking on a constitution building project?

Case studies:

• Japan: Akiko Ejima
• Philippines: Benny Bacani
• Myanmar: Ngun Cung Andrew Lian

As with the previous theme, it assumes that constitutional culture encompasses the values, traditions, material factors and emotional attachments that shape how institutions, elites, officials and the people themselves engage with the constitution. Unlike the previous theme however, it asks whether constitutional culture needs to change, after adoption of a new or amended constitution, and, if so, how much change can be encouraged.

This theme makes a contribution to the broader challenge of implementing new constitutional arrangements. The assumptions on which it rests are that implementation requires more than technical compliance with the new constitutional  arrangements, and may also require deeper attitudinal shifts, defined here in terms of constitutional culture. The nature and magnitude of this task varies with the substantive changes made and the extent to which there already is an underlying culture of constitutionalism, in the sense of compliance with the constitution.

Five case studies were presented, from Bhutan, Maldives, Nepal, Papua New Guinea and Malaysia. They explored the following questions:

• What changes were introduced by the Constitution that required the development of a new constitutional culture or adaptation of an existing culture?
• What kind of changes need to occur in key sectors of society? Consider, for example, the public, civil society, the media, executive government, administrative agencies, legislatures, courts, constituent units, other?
• What proactive measures, if any, were taken to develop or adapt official and/or public culture to the needs of the new Constitution, during the constitution making process or in the implementation phase?
• How effective were any such measures, in the short‐term and over time?
• What were the consequences of any failure to develop a constitutional culture to underpin implementation of the new arrangements?

• What lessons can be learnt from these experiences for other states that are implementing new constitutional arrangements.

Case studies:

• Bhutan: Tenzin
• Maldives: Mariyam Zulfa
• Nepal: Seira Tamang
• Papua New Guinea: Stephen Pokawin
• Malaysia: Dian Abdul Hamed Shah

External influence may come in a variety of different forms. One, which is common and on which this theme focused is the provision of knowledge and advice by external actors on both the substance and process of constitutional change.

External advisers come with their own understandings and assumptions about constitution building, informed by their own societal and constitutional cultures. Those with long experience in the field may have understandings and assumptions shaped by other constitution building projects as well. They may also be influenced by the international ‘guidelines’ or ‘standards’ that are beginning to shape action across the field as well.

If culture is significant for effective constitution building, questions arise about how external actors engage with it, in order to grasp it and to evaluate it in providing advice and options on constitution building substance and process.

The case studies explored different aspects of this challenge. Two consider it from the perspective of countries engaged in constitution building receiving external assistance (Timor Leste and Afghanistan). One explains the challenges for an outsider individual or organisation when engaging with another societal or constitutional culture. A fourth tackled the issue from the standpoint of the United Nations, as a frequent vehicle for external advice, also committed to implementation of international norms and standards.

The questions at which this theme is generally directed are:

• How necessary is it for external actors to understand local societal and constitutional culture as it impacts on the process and substance of constitution building? Does the answer depend on the role that external actors play?
• What methods or techniques have been used, or might be used, to assist external actors in this regard?
• To what extent do international guidelines and standards that have been developed for external assistance to constitution building projects and related activities by the United Nations and other actors leave sufficient room for culture to be taken appropriately into account?

Case studies:

• Timor Leste: Aderito Soares
• Afghanistan: Shamsad Pasarlay
• Understanding different cultures: Eugénie Mérieau
• UN perspective: Rohan Edrisinha

The final session captured insights into the interaction between culture and constitution building, generally and with particular reference to Sri Lanka, as the host of the Forum.

• Insights from the perspective of Sri Lanka were provided by Dr Dinesha Samararatne and Ms Sakuntala Kadirgamar-Rajasingham;
• Insights for constitution building globally were summarised by Prof Cheryl Saunders and Ms Leena Rikila Tamang.

A postscript draws attention to the significance of the issues canvassed in the Forum for the constitutional developments that unfolded in Sri Lanka shortly after the forum was over.