Final Report from the Second Melbourne Forum on Constitution Building in Asia and the Pacific

Organised by the Constitution Transformation Network, International IDEA and the University of the Philippines

Manila, The Philippines, 3-4 October 2017

Ms Ela Atienza (Philippines)

In 2017, the Second Melbourne Forum on Constitution Building in Asia and the Pacific brought together scholars and practitioners from across the region to discuss issues raised by decisions about the relative magnitude of constitutional change.

Colloquially titled From Big Bang to Incrementalism, the Forum canvassed questions about the magnitude of change in terms of both process and substance.

  • Process involved questions about whether change is effected through a new Constitution, with or without legal rupture; by alteration of an existing Constitution; or by avoiding, limiting or postponing formal constitutional change altogether in ways loosely characterised as deferral.
  • Substance involved major institutional change, with particular reference to changes to the form of government or the form of the state.
L-R: Ms Cheryl Saunders (CTN), Mr Benny Bacani
(Philippines), Ms Mariyam Zulfa (Maldives), Mr Javier
Couso (Chile).

Focusing on selected regional case studies, the Forum sought to throw light on why particular decisions about magnitude are made; at what point in a Constitution building process; and with what consequences. In each case, attention was paid also to sources of comparative experience and international influence.

The Melbourne Forum is jointly organised by International IDEA and the Constitution Transformation Network at the University of Melbourne (ConTransNet). The purpose of the Forum is to explore the contribution to global Constitution building experience of the richly diverse Asia-Pacific region. The Forum also fosters a network of informed and knowledgeable people across the region who can derive benefit from contact with each other and on whose expertise both International IDEA and ConTransNet can draw.

L-R: Ms Saniia Toktogazieva (Kyrgyzstan),
Mr Gunbileg Boldbaatar (Mongolia)

Each Forum is built around a theme of global significance for Constitution building. The questions of process and substance canvassed by the 2017 Forum are also important elsewhere in the world, and the inclusion of Chile and Argentina provided comparative insights from the Latin American region. The Forum was held in Manila, where these issues are particularly pertinent. The Philippines is currently considering options for major change to the Constitution of 1987, with a possible view to adopting both federalism and a more parliamentary form of government. The Forum was hosted by the Political Science Department at the University of the Philippines, Diliman, in collaboration with International IDEA and ConTransNet.

The Melbourne Forum relies on 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 2017, the Forum was structured around 5 substantive sessions, followed by one concluding session, to draw key issues together from different perspectives.

The subject-matter of each of the sessions and the cases on which they focussed were as follows:

  1. Making a new Constitution: The Philippines, the Maldives, Thailand, Chile
  2. Amending an existing Constitution: Indonesia, Pakistan, Taiwan, Argentina
  3. Moving between a parliamentary and a presidential system: Kyrgyzstan, South Korea, Mongolia, Sri Lanka
  4. Moving between a unitary and a federal/extensively devolved system: Nepal, Solomon Islands, Myanmar, Papua New Guinea
  5. Deferring or postponing significant issues: India, Fiji, Iraq, Bougainville
  6. Conclusions from the perspective of international institutions, the Philippines, International IDEA, ConTransNet
R-L: Mr Eric Kwa (PNG), Mr Jimly Asshidique (Indonesia),
Mr Keanneth Nanei (Bougainville), Mr Sumit Bisraya (IDEA).

A series of policy papers will be published in due course, 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 interim conclusions from the Forum are canvassed at the end of the Report, in the account of the final session. One general set of conclusions may be stated here, however. All constitutional change is significant, however it occurs and whatever it involves. Choices about relative magnitude are likely to be driven by a range of factors, many of which depend on local context but some of which may be externally driven as well. All such decisions have consequences that need to be anticipated and understood, to the extent to which that is possible.

At the same time, however, the significance of the distinction between the various options for change should not be overstated. A new Constitution may incorporate familiar institutions from the past; an amended Constitution may make radical change. The process followed to make a new Constitution may be prescribed by the old one; the processes for amendment of an existing Constitution may be augmented to enhance the legitimacy of the changes that are made. There are gradations of unitary and federal systems that shade into each other, and the same is true of the distinction between presidential and parliamentary systems. Big bang to incrementalism is by no means a binary choice: rather it identifies a spectrum of experiences along which constitution building occurs.

Mr Lian Sakhong (Vietnam)

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: Zaid Al-Ali (Iraq); Jimly Asshidique (Indonesia); Sadaf Aziz (Pakistan); Benny Bacani (Philippines); Gautam Bhatia (India); Sumit Bisarya (International IDEA); Gunbileg Boldbaatar (Mongolia); Uwanno Borwornsak (Thailand); Wen-Chen Chang (Taiwan); Miriam Coronel Ferrer (Philippines); Javier Couso (Chile); Rohan Edrisinha (UN); Chaihark Hahm (South Korea); Dipendra Jha (Nepal); Eric Kwa (Papua New Guinea); Vijay Naidu (Fiji); Keanneth Nanei (Bougainville); Gabriel Negretto (Argentina); Warren Paia (Solomon Islands); Paikiasothy Saravanamuttu (Sri Lanka); Cheryl Saunders (ConTransNet); Saniia Toktogazieva (Kyrgyzstan); Min Zaw Oo (Myanmar); and Mariyam Zulfa (Maldives).