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.