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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