Melbourne Forum Constitutional INSIGHTS

This Constitutional INSIGHT examines the choice between making a new constitution and amending an existing constitution to achieve substantial constitutional change. This choice arises in the early stages of constitution building. It is likely to affect the constitution-building process and it may have significance for the perceived legitimacy of the changes. The choice between a new or amended constitution may, in context, also affect the success of the constitution-building exercise.

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Federalism or devolution involves the organization of public power so that government, on at least two levels, is responsive and accountable to the people that it serves. More than 25 countries around the world operate as a federation of some kind. Many more devolve power in other ways, either across the country or in particular regions with special autonomy. This Constitutional INSIGHT explains why any change from a centralized to a federal or devolved system is a significant one. It also outlines some of the challenges that arise in the context of such change, and suggests options that might be available to meet them.

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This Constitutional INSIGHT deals with the questions presented by constitutional or legal arrangements that treat one region of a state differently from others. Differential treatment of this kind is sometimes described as ‘asymmetry’. Asymmetry is a feature of constitutional arrangements in all parts of the world. Examples of asymmetry on which this
INSIGHT draws include Jammu and Kashmir in India; Aceh in Indonesia; the Bangsamoro region in the Philippines; the Autonomous Region of Bougainville in Papua New Guinea; Sabah and Sarawak in Malaysia; and the Oecusse in Timor-Leste.

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Direct public participation is a feature of almost every exercise in constitution-building in the 21st century. This issue of Constitutional INSIGHTS examines three different forms of direct public participation in constitution-building — consultation, deliberation and decision-making — and identifies ways to promote inclusive and meaningful direct public participation.

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The inclusion and participation of combatants in constitution-building processes raises a number of distinctive issues. Constitutional INSIGHTS No. 5 examines the rationales for including combatants in constitution-building, the challenges this presents and some of the mechanisms that might be used to support their participation in constitution-building processes.

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The Covid-19 pandemic saw the invocation of a diverse range of constitutional and legislative provisions to enable government responses to the unexpected health crisis. Constitutional INSIGHTS No. 6 examines the use and non-use of constitutional and legislative state of emergency powers in response to the COVID-19 pandemic. Drawing on examples from across Asia and the Pacific, the INSIGHTS investigates the implications of both constitutional and legislative responses for other democratic rights and processes and identifies lessons for the future exercise of emergency powers, including the continued importance of parliamentary oversight of executive action during states of emergency.

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The existence of two levels of government, each with their own constitutional powers and democratic accountability, shaped the responses of federal countries to the pandemic. Constitutional INSIGHTS No. 7 examines lessons learned from about the purposes, design and operation of federations over the course of responding to the COVID-19 pandemic. Key features and challenges of federal systems are considered, including the division and allocation of powers and fiscal resources; collaboration and cooperation between levels of government; and the challenges of democratic accountability. Drawing on lessons from across Asia and the Pacific, the INSIGHTS highlights that observing how federations responded to the pandemic can usefully guide future design choices for federal systems worldwide.

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The Covid-19 pandemic shone a light on the key roles played by unelected, independent institutions and international bodies, from public health actors to courts, the World Health Organization and beyond. Constitutional INSIGHTS No. 8 explores the types of independent institutions that have shaped efforts to counteract the spread of Covid-19 across Asia and the Pacific. Four principal functions of these institutions are considered: sources of expertise; implementation mechanisms; constraints on government action; and linkage actors mediating between the domestic, transnational and international spheres. Drawing on the experiences from Fiji, Sri Lanka, Taiwan and others, this edition of Constitutional INSIGHTS identifies globally relevant lessons learned, including the need for an expansive view of democratic legitimacy and the importance of institutional coordination.

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This Brief examines the impact of Covid-19 on systems of government, emergency response and opposition members in legislatures and their ability to maintain democratic principles. Drawing on insights from five countries as case studies, Malaysia, New Zealand, Papua New Guinea, the Republic of Korea and Singapore, this Brief shows how emergency responses that restrict the capacity of the legislature erode the ability of opposition members to contribute. It also highlights that the role oppositions played during the pandemic varied based on the form of government—be it presidential or parliamentary.

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