Introduction

In 2019, the Fourth 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'.

Inclusion and participation are familiar topics in constitution building. Each raises distinct issues, which are identified separately for the purposes of this note. They also are interdependent, however, in complex ways that justify examining them together. They can be mutually reinforcing, for example; even the most broad-based participation, for example, may raise questions about who to include. Equally, however, they can have a negative relationship. By way of example, mechanisms for the effective inclusion of stakeholders may preclude broad-based public participation. Broad-based public participation, in turn, may lead to outcomes with which critical stakeholders do not agree, affecting the chances of successful implementation.

Inclusion typically raises questions about “who” is involved in constitution building processes. Often, these questions apply at key points in the processes of negotiation and decision-making: when deals are made and when they are consolidated in constitutional form. Who is included and who is excluded may affect what is agreed, how it is agreed and the effectiveness of constitutional implementation. These questions may become particularly acute in constitution-building in conflict-affected contexts, when some of the principal stakeholders are or have been combatants, adding an extra level of complexity to the design of the decision-making process. This is an issue in Myanmar, for example, where MF2019 will be held.

Participation, on the other hand, typically refers to processes of engaging a wide range of people from society at large at different points in a constitution-building process. The significance of participation in this sense follows from the very nature of a constitution, as fundamental law, overriding other laws, intended to last over time, drawing on the authority of ‘the People’. A range of practical advantages are claimed for participation in this sense including, for example, greater public commitment to the constitutional settlement and increased “legitimacy” of the final constitution. Public participation has been actively identified as a key feature of constitution-building practice since the South African constitution-making process of 1994-1996, which demonstrated the public interest aroused by a highly participatory process. Public participation in constitution-building is sometimes said to be required by international law as well and in any event is often pressed by international institutions.

Despite all this, there is some ambivalence, both in the literature and in practice, about both the inherent value of inclusion and participation, the ways in which they can be made effective and the relationship between them. Concerns fall into at least five categories asking: why, who, when, how and to what effect? Experience offers insight into each of these questions, without finally resolving them. New constitution-making processes can draw on these insights but will also be shaped, in various ways, by the context in which they are taking place.

The purpose of the 2019 Melbourne Forum is to explore these issues, drawing primarily on the experience of constitution-building in Asia and the Pacific. The Forum seeks to identify new insights into inclusion and participation that might usefully inform the design and implementation of other constitution-building processes, including those in Myanmar, where the Forum takes place.

The aim of the 2019 Melbourne Forum is to move beyond generalisations about inclusion and participation to explore experiences with putting principles into practice and to identify insights that might assist others in the future. To this end, the Forum is organised around five principal themes. The first theme sets the scene, by considering the aims of inclusion and participation and the opportunities and challenges each presents. Each of the next four themes deals with particular aspects of inclusion and participation, which are examined initially through selected case studies, presented by participants from the countries concerned.

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.

The session themes and cases were:

1. Aims and opportunities of inclusion and participation: Opening discussion designed to set the scene, drawing on the experience of all Forum participants. The discussion will be led by two Forum participants with knowledge of the field.
2. Inclusion, participation and representation: Nepal; Philippines (Bangsamoro); Papua New Guinea; and Indonesia;
3. Insights for design of direct public participation: Tuvalu; Mongolia; Australia (Uluru statement); and Taiwan;
4. Inclusion of combatants: Afghanistan; Indonesia (Aceh); Colombia; and Papau New Guinea (Autonomous Region of Bougainville );
5. Managing the risks of inclusion and participation:  Thailand; Chile; Sri Lanka; and Kashmir;
6. Conclusions: insights from Asia-Pacific experience for inclusion and participation in constitution-building; the particular case of Myanmar.

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.

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.