Ratu Joni's Constitution-Making Address

"While I mourn the manner of the passing of the 1997 Constitution, by force of arms on 5 December 2006 and then by purported abrogation on 10 April 2009, I recognise a new opportunity to build afresh.  And this time, there is a very real prospect of laying a foundation that lasts." 


Constitution-Making in Practice* by Ratu Joni Madraiwiwi

Ratu Joni (L) and Prof Yash Ghai at the book launch

The making of a Constitution consists of process and content. The matter of content has been exhaustively dealt with by lawyers and constitutional experts alike. However, the issue of process and the focus and detail in which it ought to be pursued has been left unattended until now. Michele Brandt, Jill Cotrell, Yash Ghai and Anthony Regan have remedied that lack in Constitution-making Reform Options for the Process. This handbook published under the auspices of Interpeace is destined to become a seminal work, so practical, relevant and apposite are the issues considered and the options discussed. Now that it is in print, it seems unimaginable that it is the first of its genre, a handy one at that and certainly not the last.

The authors emphasise that there is no ‘right’ way of Constitution-making. Each country must determine its own path having regard to its own political, cultural and socio-economic context. What has worked well in one place may not necessarily work in another place. But the point is also made that there are common characteristics to Constitution-making which may assist in determining what course of action is to be adopted. The handbook identifies the plethora of tasks that need to be done, the institutions and procedures to implement them and the personnel to do what is required. This aspect is perhaps the handbook’s greatest strength: in carefully identifying the Constitution-making processes, the tasks comprised therein and the institutions, groups and procedures that are involved in those tasks.

Given the frequency of Constitution-making, it is interesting that no attempt was made earlier to compile a handbook. It appears that those who were involved in the Constitution-making process were too preoccupied in the minutiae of their own experiences, to attempt to draw any common threads. Professor Ghai, on the other hand, has been involved in a number of such processes both in the Pacific and beyond. He and his colleagues are eminently qualified to pronounce on this subject. The other consideration is that the content of Constitution-making rather than the process appeared to capture the imagination of writers and academics. The process tended to be the preserve of elites and political parties with little space for anyone else. The Constitutions of Pacific Island States in the 1970s were negotiated with politicians behind closed doors, with some notable exceptions like Papua New Guinea. This pattern has changed in the last three decades where States, riven by conflicts and divisions over the allocation of resources, have sought to develop new modes of Constitution-making with the emphasis on peace building.

What is fascinating to appreciate is how the process of Constitution-making has moved beyond the historical confines of elites and political parties to wider forms of public participation and consultation. This process is only a few decades old and mirrors the re-emergence of democracy and the accent on human rights in the period after the fall of Communism and the adoption of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC). But as the authors of the handbook caution public participation and consultation require careful, detailed planning and preparation if the process is to be meaningful and worthwhile. Provision must be made for channeling public responses to the appropriate avenues for proper tabulation and analysis.

At the same time, public participation is not an end in itself. Its purpose is to legitimise the process of Constitution-making. To give the people a sense of ownership of the process and an assurance that they are participants and not mere bystanders in the developments taking place. Furthermore, the authors note that “the people” are not an amorphous body, but comprise workers, farmers, unionists, professionals, labourers, women, students, public servants and the like. Therefore, account must be taken of their particular needs and status. This applies with particular resonance to marginalized groups and people who face a real risk of being overlooked or ignored in this process.

The handbook is timely as we are about to begin the process of drawing up a new Constitution. The first question to be posed is whether we need a new Constitution? The 1997 Constitution was purportedly abrogated on 10 April 2009. Whether we need a new Constitution is an open question, although there are arguably parts that may need to be rewritten or amended. If one accepts the need for a new Constitution, the handbook sets out a number of options to be considered. The reality is that the present government will seek a fresh start to draw a line under the 1997 Constitution and the consequences of 5 December, 2006. That course of action is unobjectionable if consensus can be reached on the way forward. If there is a real opportunity to devise a new Constitution for which the process of public participation and consultation is thoughtfully and creatively devised and implemented, it may well be the best chance we have at laying the foundations for long term peace and stability.

The authors of the handbook note that Constitution-making is not a linear exercise. This can make the handbook a ponderous read at times. But the point is well-made that Constitution-making involves a wide range of tasks as does designing and developing a process. On that basis, a useful starting point for Constitution-making is the similar tasks involved regardless of country or state. These are listed in the Overview of the handbook as follows (not necessarily in this order):

1. To think through and research the issues facing the country;
2. To consider the choices of constitutional arrangements that will best respond to the issues;
3. To educate and consult the people about the issues and the choices;
4. To negotiate among major political groups and those with powers of decision-making about the constitutional choices;
5. To administer and manage the Constitution-making process;
6. To draft, debate and adopt a new constitutional document;
7. To make arrangements for implementation of the new Constitution.

These tasks need not be arranged in this particular order and they can be organised to suit the particular content of the country or state concerned. But it is a useful list for focussing on the key elements of Constitution-making.

The handbook is divided in four parts. Part 1 introduces the Constitution-making processes. It outlines the key issues and the roles of constitutions and the challenges involved in Constitution-making. What is important to appreciate is that a Constitution is meant to symbolize unity and a common vision for the nation and, as far as possible, ought to be an instrument for reconciliation on compromise. Part 2 deals with tasks and functions associated with Constituion-making. These are not necessarily dealt with in sequence or chronologocial order because realities on the ground may differ. For example, educating and consulting with the people may be carried out at different stages in different constitutional processes. Part 3 concerns institutions and procedures established to carry out tasks. For example, a draft might be prepared by a single expert, a committee of experts or contingent assembly or other body involved in the process. They are usually state-backed institutions because the Constitution-making process is a national one. Part 4 is concerned with external actors in the process who are outside the process but linked in some way and include overseas actors, civil society and the media. There are also a series of twelve case studies of countries as diverse as Afghanistan, Benin, India, Kenya, Poland, Timor-Leste and Uganda. They illustrate the variety of processes adopted in Constitution-making for the countries mentioned. Some established commissions, others Constituent Assemblies while others used parliament. In all, one hundred and nineteen countries are referred to in the handbook.

The focus of the handbook on Constitution-making as peace building is a relatively new and welcome concept. The emphasis enables the citizens of a state to come together with a genuine commitment and passion to create structures, institutions and systems that will be engaged in the betterment and welfare of society as a whole. The Constitution is not only a symbol but to be a tool for building peace continuously. Implementation of the Constitution will need more than following the letter and spirit of its provisions, but more particularly ensuring the marginalised have a voice in decision-making, minorities are protected and the plight of the poor mitigated significantly. Peace building attempts to pre-empt the sources of conflict before they arise and in that regard, requires forsightedness and vision in Constitution-making.

What has particularly caught my attention are some emerging guiding principles for “participatory Constitution-making”. This can be listed as public participation, inclusiveness in representation, transparency and national ownership. We all share the hope that broad participatory Constitution-making mechanisms will be built into the forthcoming constitutional process to ensure a greater degree of legitimacy. This would go beyond referenda and include civic education and media campaigns, national dialogue and use of information technology to reach the young. The handbook discusses how the constitutional process can be made inclusive at all stages. This is particularly critical if it is to be truly representative and include all segments of society. In our process, women, youth and people with disabilities deserve special mention. Transparency enables the public, media and civil society to participate by keeping them informed about the process, their role in the process and how the process will be conducted, how they are represented or elected, the adoption process and their role in it, and providing feedback about public consultations. National ownership requires the process to be one that emanates from within the country itself by local people involved in the process.

On the basis of the handbook, how would one begin the Constitution-making process here? I think it the responsibility of the government as the institution in control of the state and all its institutions to begin the process. That is probably taken as read. It can begin a process of consultation with representative groups or draw up a draft on the basis of the extensive work on the charter. This can then be tabled for discussion as a draft with the public having the liberty to make comments or counter proposals. This could be preceded by an extensive campaign in civic values and/or public consultation on the proposed draft constitution. The mechanism for public consultation and participation has not been specified, that being left to the government and representative parties to agree. This would include unions, churches, religious bodies, political parties and civil society. They might agree on a Commission of Experts to draft a document bearing in mind representations from the public. I envisage a civic and public education process of at least three to six months.

It is probably important that a draft or at least a set of principles to be enshrined in a draft document is placed before the public. Otherwise, there will be little by way of concrete proposals from the public, as they cannot be expected to have fully developed cohesive ideas about what is to be incorporated in a Constitution. Once this has been circulated and adequate time for responses stipulated, the results can be collated and included in what is to be the draft document for discussion. The authors have gone to great lengths and detail as to how the responses from the public might be analysed and incorporated. This is an important consideration because it reflects respect for the popular view.

The handbook caters for a variety of interests, all involved in the Constitution-making process. For the lawyer, public servant, politican, professional, civil society, media, citizen, external party, the handbook is of interest to all concerned. It has been three years in the making with numerous workshops and constitutional experts providing their time, experience and expertise. Out of those series of workshops, reflections and further research, has emerged this practical handbook and toolkit for Constitution-making gleaned from the last forty years of Constitution-making processes.

As we embark on our own journey for what is the fourth time, generous tribute must be paid the authors for providing their distilled wisdom to help light our path. The solemnity and gravity of the Constitution-making process is lightened by the fact that some of the case studies covered in the handbook, such as South Africa and Timor-Leste, were far more divisive than our society. Yet somehow, they found the means and the wherewithal to establish relatively stable societies notwithstanding simmering tensions. That should be a lesson for us to search for and create the compromises necessary to presage healing and reconciliation.  The past still weighs heavily on us and many may find it difficult or impossible to forgive and forbear.  And it is true that it cannot be forced, imposed or usurped.  It is the prerogative of the victim and those who have been wronged.  But the state of unforgiveness and vengeance is a cold, desolate place in which no one should linger too long.  I have no mandate to speak for anyone but myself and I do so from compassion for both sides in our schism.

I have interposed my evaluation of the handbook with my own views about our forthcoming constitutional process.  While I mourn the manner of the passing of the 1997 Constitution, by force of arms on 5 December 2006 and then by purported abrogation on 10 April 2009, I recognise a new opportunity to build afresh.  And this time, there is a very real prospect of laying a foundation that lasts.  I appreciate that certain realities may require that change and reform takes decades rather than months and years.  But as Argentina, Chile, Indonesia, Peru and Turkey have made the transition, so there always remains hope and great expectation for us.  And with those few words I have much pleasure in saluting the authors and launching the handbook Constitution-making and Reform Options for the Process.  Thank you and good evening.


* Address at the book launch of Constitution-Making and Reform Options for the Process by Michele Brandt, Jill Cotrell, Yah Ghai and Anthony Regan, Suva, Wednesday 25 January 2012.