CTN Blog: "Constitution building, constitutional transformation and hybrid political orders"

By Jayani Nadarajalingam & Anna Dziedzic

In October this year, the Tongan parliament unanimously passed a bill to amend Tonga’s constitution and insert a new clause – 89A - which explicitly directs Tongan courts and tribunals to have regard to the “customs, traditions, practices, values and usages of Tongans”, where relevant, in the context of adjudication. On 15 December 2020, the parliament of Samoa passed its own suite of constitutional and legislative amendments, giving greater prominence and protection to customary rights, including by elevating the status and extending the jurisdiction of the customary Land and Titles Court.  Whilst these changes have been criticised in both Tonga and Samoa, they bring to the forefront the hybrid nature of the Samoan and Tongan political orders. In both, the modern state is arguably not the only – or even main – actor that performs governance functions. Instead, it is one among other actors including, for instance, extended families and village communities.

The 2004 constitution of the Autonomous Region of Bougainville also constitutes a distinctly hybrid political order. Like typical modern state constitutions, the Bougainville constitution establishes the three arms of modern government – the legislature, the executive and the judiciary. At the same time, however, it also explicitly recognises the role played by non-state actors – particularly clans and families – in the performance of governance functions. The constitution of Somaliland provides another example. Among other things, it establishes a bicameral parliament consisting of the House of Representatives and the House of Elders.

Whilst the phenomenon of hybrid political orders is very much a political reality in parts of the Global South, particularly the Pacific, it is a topic that remains largely under-theorised from the perspective of constitution building, constitutional transformation and constitutional studies more generally. In fact, it is often assumed – by international development theorists, political scientists and scholars of constitutional law, among others – that the social and political contexts in which constitution building or constitutional transformation projects now take place are ones where the state remains the main or even only actor that performs governance functions or, alternatively, becomes (soon after, or as a result of, the relevant transformation or building project) the main or only actor that performs governance functions.

To put it more pithily, constitution-building and constitutional transformation projects are viewed – particularly by those of us situated in the Global North - as more-or-less internal to modern state building projects. The examples of Bougainville and Somaliland, however, challenge this assumption: in both instances, the constitution building projects resulted not in the establishment of OECD style modern states but instead distinctly hybrid political orders. Importantly, in both cases, constitution building projects formed part of larger and more complex political projects and peace processes which have resulted in peace, at least for the time being, in these contexts.

The examples of Bougainville and Somaliland, and the phenomenon of hybrid political orders more generally, draw our attention to the fact that the modern OECD style state is a means and not an end in and of itself. What exactly the end is, in a particular context, we can leave open to some extent but, at a very minimum, we can probably assume that it is a state of affairs in which peace and relative order is achieved and maintained. Shifting our perspective to view the state as only one of several possible means to such an end may provide us with the beginnings of a theoretical framework within which to situate and study hybrid political orders.

If careful empirical analysis reveals that, in certain contemporary contexts, hybrid political orders are in fact the means to achieving or maintaining peace and relative order in these contexts, then they need to be taken seriously as an alternative form of political order to the OECD style state.  This means that scholars and practitioners should not simply assume that constitution building and constitutional transformation projects are always internal to modern state building projects, nor that the state is the only means to peace and relative order in all contemporary contexts. Paying careful attention to local context may reveal complex social and political realities that sit at odds with these assumptions. In these cases, new approaches may be needed, and there is much that may be learned from efforts to address hybridity in the constitutions of Samoa, Tonga, Bougainville and Somaliland.

This piece was very much shaped by rigorous discussion that took place during a virtual reading group on hybridity held in Oct-Nov 2020 by the Statelessness Hallmark Research Initiative Seed Funding Scheme "legal identity formation in the context of hybrid political orders" project team. We'd like to thank the reading group participants: Cheryl Saunders, Patrick Emerton, Anne Carter, Zim Nwokora and Iain Payne.