Cookie Cutter Constitutions?

Volume 7 Number 6 June 5 - July 10 2011

The spread of democratic forms of government in the developing world has given rise to fresh debates about how constitutions and national identity are formed. By David Scott.

No one ever claimed that writing a constitution was easy but, according to Professor Cheryl Saunders of Melbourne Law School, globalization has added a new layer of complexity.

“Any developing country embarking on a constitution-building exercise is likely to be inundated with offers of foreign or international assistance,” Professor Saunders says.

“These need to be channeled so that what is useful can be fed into the process, while retaining local fit and ownership in the interests of making the constitution work.

“Typically and not surprisingly, foreign advisers draw on their own past experiences, including knowledge of their own country. Some are less sensitive to the reality of local difference than others. The attitude that outsiders bring to such a process is extremely important. And a good knowledge of comparative constitutional law is extremely useful.”

Professor Saunders, the founding Director of the University’s Centre for Comparative Constitutional Studies, is well placed to discuss these issues. She teaches subjects on both Constitution Making and State Building in the Melbourne Law Masters specialization in international and public law, in each case with other experts in the field. Professor Saunders also sits on the advisory board of International IDEA (Institute for Democracy and Electoral Assistance), which is involved in the current constitutional process in Nepal, amongst other places.

“While every constitution-building process is unique, many have some of the features evident in Nepal,” Professor Saunders says.

“A new constitution is seen as a partial solution to internal conflict, which in Nepal ravaged the country for 10 years from 1996. Constitutional negotiations inevitably are difficult and fraught in these conditions. In addition to the many foreign advisers, the UN has been involved in Nepal as well, in assisting to broker a peace settlement. The terms of such a settlement often mandate aspects of the constitution-building process, or even the substance of the constitution itself.

“Foreign and international involvement, in a wide variety of forms, is common to most constitution-building processes now. It was evident in Cambodia and Timor Leste; and also in the very lengthy Kenyan process, which has only recently concluded. It is almost certainly a feature of the constitutional exercise presently under way in the Southern Sudan”.

The Melbourne Law School has had a long association with what was until 2008 the Kingdom of Nepal. Current Dean, Professor Carolyn Evans, has previously given her insight on the role of religion in the constitution as the Nepalese investigated how a secular document might work out, as well as discussing the status of women in Nepal and how that might be enhanced by a constitution or constitution-building process.

As recently as May, Professor Simon Evans, the University’s Pro-Vice-Chancellor (International) and a member of the Centre for Comparative Constitutional Studies, spoke at a conference in Nepal that analysed the proposals being considered by the Nepalese Constitutional Assembly.

In addition to Nepal, Professor Saunders has had some involvement in constitution-building in a range of other countries, including Fiji, Timor Leste and Iraq. In her experience, foreign assistance is welcomed, as long as outsiders tread an appropriate line between making their expertise available in an accessible form and imposing their own views about process and substance.

 “Whenever someone from outside provides advice about someone else’s constitution-making exercise, it needs to be done very subtly and with a degree of humility,” Professor Evans says.

“An outsider cannot understand local conditions and the suitability and acceptability of particular constitutional choices as well as those who live in the country and who will be subject to the constitutional arrangements that emerge.”

Local ownership of constitution building is particularly important where a constitution is viewed as a symbol of national identity, which contributes to the legitimacy of the state and its institutions. The moment of the founding may be one of the few times when a broad consensus is achieved and a shared vision can be presented, as a country moves into a new era. Constitutions alone cannot achieve peace or good government. But a successful constitution building process can contribute to a solid foundation on which a state can begin to build.

Professor Saunders suggests that South Africa is a better example of the link between a constitution and national identity than Australia.

 “South Africa was a country emerging from decades of apartheid,” she says.

“There was potential for real violence that, amazingly, was avoided; in large part through a creative constitution-building process that also managed to be inclusive of many different points of view.

“And they came up with a wonderful document, including a very stirring preamble and a list of shared values in which equality and human dignity were prominent. South Africa still has plenty of problems, but the constitution has played an important role in assisting to forge internal unity at a critical time and in shaping the identity of the new South Africa.”

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