Melbourne Forum 2019 - Interim Report

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.

The session was designed to set the scene for the rest of the Forum. It explored the reasons for inclusion and participation in a constitution building context and the opportunities that they might offer. To this end, we distinguished between inclusion and participation, to the extent that each has distinct purposes. It may be that the purposes of inclusion and participation vary between different contexts and between different points in a constitution-building process. These issues were considered from the standpoint of both domestic constitution-builders and international institutions.

There were no case studies for this theme, but questions to guide discussion included:

• What is the difference between inclusion and participation? How do these two concepts put different, complementary or competing demands on a constitution-building process?

• What are the intended purposes of stakeholder inclusion? Who are/might be considered ‘stakeholders’ for this purpose? Who decides?
• When and why are sub-national entities considered stakeholders for the purposes of inclusion?
• What are the purposes of public participation? Do they differ at different points in the process?
• Are typically underrepresented groups (including women) best considered at the points of stakeholder inclusion, public participation or both? What are the purposes, in either case?
• What are the purposes of involving the diaspora in aspects of a constitution building process?
• To what extent are any of these questions deliberately considered at the beginning of a constitution-building process? Does it/would it help to do so?

The device of representation is used in various ways and at different stages in constitution-building. Representation is  essential to both inclusion and participation, but raises a host of questions about the credentials of representatives, their relations with those they are supposed to represent and the ways in which these relationships work in a constitution-building setting.

Any inclusive constitution-building process uses the technique of representation at some points, in some ways. Sometimes representation is formal as when, for example, particular people or groups are elected to a Constituent Assembly or other constitution-making body. Sometimes it is less formal as when, for example, political or other leaders are involved in negotiations over disputed questions of principle or process or when members of civil society take part in constitutional discussions as proxies for the public at large.

Use of representation as a mechanism for inclusion presents particular challenges in constitution-building. If representation is to enhance inclusion in a way that achieves its purposes, representatives need to be able to speak for their communities, to interact with their communities and to commit their communities to the decisions that are taken. These considerations make the selection of representatives important. In this context, while competitive elections were a traditionally preferred method for selecting such representatives, more recent experience suggests that electoral outcomes may need to be moderated to promote inclusion in other ways. Options include the use of quotas, to ensure that marginalised or other important groups are not left out.  Mechanisms of this kind, however, have the potential to create problems of their own for the character and effectiveness of representation.

A different set of issues relates to the freedom of action of representatives participating in a constitution-building process. On the one hand, representatives need some kind of mandate from the constituency they represent, in order to legitimately reflect their views and interests. On the other, and importantly in a constitution-building process, they need flexibility to negotiate and find bases on which to compromise. In such situations the value of transparency in constitution-building exists in tension with the need for confidentiality in political negotiations.

There were four case studies for this theme, from Nepal, Philippines (Bangsamoro), Papua New Guinea, Indonesia. The case studies explored the following questions :

• Who was represented and by whom?
• How were the representatives chosen? What, if any, issues arose?
• Were steps taken to ensure the inclusion of generally underrepresented and/or historically marginalized groups? If so, how were these representatives chosen? What issues, if any, arose?
• How did the representatives relate to those they were representing? Or how legitimate were the representatives in the eyes of the represented?
• What freedom of action did representatives have or assume, as the carried out their roles in the constitution-building process? Was freedom of action in any way related to level of legitimacy?

Case studies:

• Nepal: Dipendra Jha
• Philippines: Naguib Sinarimbo
• Papua New Guinea: Orovu Sepoe
• Indonesia: Bivitri Susanti

Public participation in constitution-building risks being formal or symbolic, rather than substantive in effect unless it is carefully designed to feed into negotiation and decision-making processes. Going beyond symbolic public participation is a resource intensive exercise, in terms of human and financial resources. Depending on the purposes to be served, effective participation is likely to require genuine public engagement with issues relevant to the Constitution throughout the constitution-building process or, more usually, at particular points in the process. Mere consultation may not be sufficient, if that is understood to involve no more than information about the constitutional changes that are proposed in a largely top-down process or a managed process of consultation with no likelihood of affecting the outcome.

Active public participation is complicated, however, by the often-abstract nature of constitutional issues and, typically, a lack of knowledge and understanding of constitutional matters amongst the population at large. Active participation therefore may require a range of strategies: presenting constitutional issues in an accessible way; translating practical concerns raised by the public into constitutional form; organising public meetings in a way that encourages an active exchange of views; and using different forms of media, as appropriate, including social media. Active public participation may need to be accompanied or preceded by a program of public information and education, in trustworthy and accessible form. Active public engagement and a sense of ownership of the process and of the Constitution that it produces may be assisted by provision for feedback; explaining how public views were taken into account and justifying the decision when they are not.

Four case studies were presented in support of this session's theme, from Tuvalu, Mongolia, Australia and Taiwan. The case studies explored the following questions:

• At what stage(s) in the constitution building process did public participation occur?   For example, at the outset when the ‘agenda’ is set; during the deliberation and drafting process; at the ratification stage; subsequently?
• How was participation extended to the public? Who is involved, in consequence?  How diverse were the groups?
• Was participation interactive, or largely top-down?
• Was there a public education and information program? How was this run? Did it make a difference?
• Was social media and information technology used? If so, how? With what results?
• Did the programme include any strategies for minimising the risk of public participation leading to polarization? Were there instances in which public opinion expressed through consultation was contrary to consensus among the political elite?
• Was a deliberative process used, such as a Citizens’ Assembly? What role did this play in achieving the goals of public participation?

• Was a referendum or a plebiscite used? At what point(s) in the process? What role did this play in achieving the goals of public participation?
• To what extent, if at all, was public participation in the constitution-building process anticipated or protected in a road-map for the process as a whole?

Case studies:

• Tuvalu: Corinna Ituaso Laafai
• Taiwan: Jiunn-Rong Yeh
• Mongolia: Amarzaya Naran
• Australia: Shireen Morris

Many constitution-building processes take place in the wake of conflict, in circumstances where non-state actors have been active often for a considerable period of time. Furthermore, constitutional negotiations often already happen when the parties to the conflict negotiate a ceasefire or a comprehensive peace agreement. The inclusion of combatants in constitutional negotiations raises distinctive issues, which this session explored by examining a number of specific cases where constitution-building took place in the context of ongoing peacebuilding.

Four case studies were presented from Afghanistan, Indonesia (Aceh), Colombia and PNG (Autonomous Region of Bougainville). They explored the following questions:

• Was consideration given to the inclusion of combatants? Who was included? With what consequences?
• At what point(s) in the process were combatants included? What difficulties, if any, arose?
• Were (some) categories of combatants excluded? Why? With what consequences?
• Did (some) categories of combatants exclude themselves from the process? Why? With what consequences?
• Was there opposition to the inclusion of combatants? From whom, and on what grounds?
• What arrangements, if any, were made for amnesty or immunity in association with the inclusion of combatants?

• What lessons might be drawn from your experience for constitution building in countries in similar circumstances elsewhere?

Case studies:

• Afghanistan: Shamshad Pasarlay
• Indonesia (Aceh): Munawar Liza Zainal
• Colombia: Sebastian Machado Ramirez
• PNG (Autonomous Region of Bougainville): Dennis Kuiai

Experiences with inclusion suggest that there are risks that can usefully be anticipated and managed. Inclusion and/or broad-based public participation might. For example, opportunities for either inclusion or participation may be used by spoilers to destabilise the process. In an example of another kind, the time taken to ensure participation may slow momentum for change. A risk of another kind, which also needs to be understood and managed, is that inclusive participation can raise expectations about social and economic outcomes once the Constitution is in effect. If these prove to be unrealistic, public commitment to the Constitution could be undermined, jeopardising stability in the longer term.

Often, greater participation by the public in terms of numbers is viewed as a measure of success. Conversely, very broad-based and/or large scale participation could also complicate and even undermine negotiations between leaders; produce impractical solutions; or make a process unmanageable. Questions also remain as to how such participation is to be evaluated in terms of substantive impact on constitution-building. The inclusion of marginalised groups might require targeted measures to make their inclusion meaningful. If not, such inclusion may remain as symbolic.

These considerations suggest that inclusion and participation should be understood as only elements of a larger process designed to reach a constitutional settlement that offers an agreed basis on which communities can co-exist in a single state, building a sustainable future. To this end, broad-based participation mechanisms need to be balanced with inclusion mechanisms that enable negotiation and agreement between key stakeholders and allow for compromise. Both may need to be to be tempered by a realistic appraisal of political, social, economic and geo-political realities.

Four case studies were discussed, from Thailand, Chile, Sri Lanka and India (Kashmir). The questions at which this theme is generally directed are:

• What approach was taken to inclusion? At what points were inclusion strategies used?
• Was there broad-based inclusion of stakeholders? If so, was this effective? What, if any, were the downsides?
• Was there widespread public participation? What, if any, were the downsides?
• With hindsight, would you have designed the approach to inclusion or participation differently? How and why?

Case studies:

• Thailand: Khemthong Tonsakulrungruang
• Chile: Javier Couso
• Sri Lanka: Kumaravadivel Guruparan
• India (Kashmir): Ameya Kilara

The final two session captured insights into inclusion and participation during constitution building processes. One session reflected on insights in relation to Myanmar, and the final session gathered together the insights offered throughout the two days of the Forum.

• Insights from the perspective of Myanmar
• Insights for constitution building globally were summarised by Prof Cheryl Saunders and Ms Leena Rikila Tamang.