Reforming the Fundamental LawConstitutional change and community education

Cheryl Saunders

The topic Varied to include community participation in

constitutional change And (largely) to exclude minor change… Thus understood, varies over time and between

traditions In our time affected by:

Attitudes to elected representatives Diversity within states Possibilities of information technology Occasional involvement of the international community

Overview Three questions:

Why should the community participate? When should they participate? And how?

The spectrum of constitutional change: from initial conception to implementation

Why should the community participate?Symbolic reasons linked to the nature of a Constitution as fundamental

law in the sense that it: Provides the foundation for the system of government and

law Is (intended to be) lasting Overrides other laws

Popular sovereignty as a (fragile?) explanation for the authority of a Constitution Practice supplements theory

Why? (2)Functional reasons Facilitate change

Changes better informed; more responsive Counter tendency of “normal” institutions to cater to own

interests May provide catalyst for change Early involvement may underpin later support

Further the goals of the Constitution An informed civil society Acceptance of the key elements of the constitutional

settlement, as a basis for peaceful co-existence

When should participation occur? The phases of constitutional change

Pre-constitutional Agenda setting Design and writing Approval Implementation

Pre-constitutional Relevant where a Constitution is a response to

conflict Eg Bougainville, Cambodia, Nepal

Peace agreement may predetermine constitutional questions

Community participation difficult, if not impossible, at this stage

Role of the international community Negative and positive

Agenda setting Important matters determined at this stage:

Scope of change Essential features of change Process, including community involvement

How agendas are set Terms of reference for an expert body Ambiguous authority of a representative body

The difficulty (but importance) of community participation

Design and writing A creative phase, within set parameters Two broad choices:

An appointed (usually expert) body An elected or representative body

Legislature or Constitutional/constituent Assembly

Implications of choice for approval phases Mixing and matching design options Opportunities for public participation

Final approval Brings Constitution into effect as law May not be a distinct phase, if Constitution

written by a representative body Likely to involve a process different from that

for ordinary law-making May involve a referendum (Generally) a much less creative phase Implications for public participation

Implementation The range of matters that require attention once a

constitutional change is in place Legislation Appointments Judicial review Practice generally

The relevance of continuing participation/information Ownership of (quasi) constitutional rules Vigilance of civil society

How community participation can occur Representation Direct interaction Engagement of civil society Mechanisms that require participation Information and education

Pros, cons & techniquesRepresentation Opportunities for community involvement Distinguishing constitutional change from ordinary law-

makingDirect interaction Providing the opportunity Engaging interest Active, rather than passive

Responding to draft proposals Mock deliberation

Engaging civil society

Pros, cons & techniques (2)A requirement to participate Electing a Convention

Problems of representation Problems of mandate But captures attention

Popular vote Non-binding plebiscite Binding referendum Problems of turn-out; majority A blunt instrument The challenge of information

Information and education The CCF experience

Public interest Public trust Public understanding

Requirements: Quality of information, in all respects Tailored to audiences Conveyed in multiple forms and ways Opportunities for active engagement