Women and Constitution Making

Cheryl Saunders

Centre for Comparative Constitutional Studies

The University of Melbourne

A paper prepared for an international conference on

“Women, peace building and Constitution Making”

Columbo, Sri Lanka 2 – 6 May 2002

 

1. Introduction

 

A central theme of this paper is the contribution that women have made and can make to the negotiation, design, implementation and operation of constitutions, with particular reference to constitutions that play a role in building and maintaining peace.  To prepare the ground for what is to come, this part explains the linkages that I perceive between peace, constitutions and women.

 

Constitutions may play a role in relation to external or internal peace, or to both.  In the wake of World War II, the Constitutions of the Federal Republic of Germany[1], Japan[2] and the Republic of Korea[3] made commitments to international peace and in various ways sought to inhibit the use of force.[4]  The new Constitution of Switzerland supports the Confederation's commitment to defensive, rather than offensive action and to the promotion of a "just and peaceful international order".[5]  Taking a somewhat different approach, the Constitution of South Africa subjects national security measures to international law and links it to the desire to "live in peace and harmony".[6] In the last part of the twentieth century, however, threats to peace more often have come from internal conflict, itself often causally linked with ethnic or multi-cultural tension. Quoting an International IDEA study[7], Haysom has noted that "95 of... 101 armed conflicts... in the world" between 1989 and 1996 were internal "and the vast majority had an 'identity' component to them."[8]  Examples may be drawn from areas as different from each other as the former Yugoslavia, Cyprus, Fiji, Northern Ireland, Bougainville, Uganda, Ethiopia, South Africa, Sri Lanka and more recently Indonesia and East Timor.  In many cases, the conflict continues.

 

The latter part of the twentieth century also has witnessed a proliferation of new and substantially altered constitutions. Using the University of Wuerzburg website, it is possible to identify at least sixty new constitutions that have been brought into effect within the last 20 years; most of them within the last decade.[9] That site is incomplete, however useful, and the actual number is likely to be greater still. In addition, constitutional movements are actively under way, in many states, including Kenya,[10] India,[11] and Indonesia and, in a very different context, Europe.  In some cases, over this period, constitutional movements have failed, for good or ill.  Examples include Zimbabwe, Canada and, in an earlier phase, Sri Lanka. Not all of this activity has been driven by concern for peace. Much has been a reaction to the conditions of the post-Cold War period to which an increase in nationalist movements also can be traced, however. Constitutions written in these circumstances necessarily must take the potential for internal conflict into account.

 

Constitutions alone cannot make or secure peace.  They can, however, make a major contribution to it.  Most obviously, constitutions can provide a secure base for the institutional procedures and normative guarantees on which peace is built.  Importantly, constitutions also can give status to peace as a value, assist to forge a new national identity within which peace is possible, and identify and protect other shared values of the entire polity.[12]  The effectiveness of a constitution for any of these purposes requires acceptance by the community (or communities) and “ownership” of its provisions. Acceptance in turn requires attention to be paid to the process by which constitutions are made, the style in which they are written and the manner in which they are publicly explained as well as to the constitutional institutions and principles through which prospects for peace are maximized.

 

I acknowledge that this argument places me in the ranks of those for whom a more deliberative or participatory style of democracy is to be preferred, in which the concept of popular sovereignty is not a purely formal construct between elections.  I also understand the risks: that traditionally underrepresented groups will be further marginalized and that existing power structures, including male power structures, may be reinforced.  To recognize such risks, however, is to go part way to overcoming or at least minimizing them.  Like Dryzek,[13] I believe that this can be done. In any event, I see no better alternative.  But it is not necessary to enter into a wholesale defense of deliberative or "discursive" democracy for present purposes, because the argument for a more inclusive approach is stronger still in relation to constitution making.  Constitutions are the base on which the structure of the polity is built. To quote International IDEA again, a constitution "sets the tone, spirit and framework from which all other laws - and the form of government - draw their legitimacy. It is also the document in which the rights of the people are enshrined".[14] The need for public acceptance and understanding of a constitutional settlement is greater in both theoretical and practical terms than for other laws.  Even if a deliberative style were eschewed for day-to-day governance, for reasons of practicality or principle, the need for popular involvement in constitution making would remain. 

 

Which brings me to the role of women in constitutional movements, with particular reference to the objective of peace.

 

Personal observation and experience in a range of countries, including my own, coupled with as yet somewhat cursory research, suggest that women usually are insufficiently involved in constitution making processes.  Most obviously, women tend to be in a minority on bodies charged with the responsibility of drafting new constitutions, to the extent that they hold positions at all. Observation also suggests that women tend to take a less prominent part in debates within civil society that aim to influence and evaluate constitutional proposals. Often, women play important supporting roles, in both public and private constitutional spheres, as researchers, educators and organisers. Their under-representation in the more obviously creative aspects of constitutional processes, however, detracts from both the actual and perceived public ownership of constitutions, in a particular application of the "politics of presence".[15]  In addition, it almost certainly affects the substance and style of constitutions.

 

Generalisations about the collective preferences of women must be made cautiously.[16]  Nevertheless, it is not difficult to see why women as a group might have particular perspectives on constitutional issues.  These may be theorised, by reference to the nature of the state[17] or to the assumptions that underlie constitutional systems,[18] or they may be suggested by the typical practical experiences and needs of women. The detailed constitutional policy preferences of women may differ between constitutional systems and over time, but a few examples may be given.  Historically, women fought for the right to vote, to stand for elected office, to be recognised as full legal persons, to enable maternity, and not just paternity, to determine citizenship. While in many places those battles now are won in theory, more often than not reality falls well short of the ideal. To overcome the continuing imbalance, women may now also favour proportional representation, in order to achieve the election of more women to representative institutions; legislatures that meet during reasonable day time hours, to enable women with families to attend; federalism or decentralisation, to ensure that at least some public institutions are more local and hence more accessible. Women may be divided over the question of whether better policy outcomes are likely to be achieved through democratic action or the constitutionalisation of rights. On any view, however, they would be right to be wary of rights that protect the privacy of the home in ways that leave women and children defenceless; or encourage the subordination of women and girl children through protection of religion. Arguably, women are likely to be interested in a constitutional framework that gives status to fair economic and social policies in relation to, for example, health, housing and education and imposes accountability for performance. Most importantly for present purposes, however, women are likely to favour constitutions that encourage and promote peace.

 

The relative lack of involvement of women in constitution making in the past may be turned to advantage in the future.  Women need have no particular commitment to past processes, practices, institutions and principles, just because that is the way things have been done before.  In what follows, I argue that, at least in some respects, new approaches are needed to constitution making and some lateral thinking in constitutional design.  As women take more prominent roles, they will be well placed to take a lead in putting new ideas and strategies in place.

 

2. Making Constitutions

1)     Why Process Matters

Most constitutions draw on a theory of the state that assumes a (fictional) compact of some kind.  Most accept a theory about the source of government legitimacy that acknowledges formal popular sovereignty.  Rarely, however, does either the notion of a compact or popular sovereignty affect the operation of the institutions or the conduct of government beyond provision for regular elections and, perhaps, justification for judicial review. [19]

All constitutions establish institutions and allocate power to or amongst them.  Sometimes the principal purpose is to validate and legitimate the exercise of power, for good or ill.[20]  Increasingly, constitutions control the use of power as well, through institutional arrangements, by imposing finite limits, or by recognising the rights of individuals and, sometimes, groups.  Constitutions need not be confined to these purposes, however, if there are other ways in which they might serve the interest of people.  Thus constitutions may empower civil society[21], encourage particular state policies[22], give status to shared goals[23], and inhibit private as well as public power[24].  Typically, constitutions are entrenched or, in other words, protected from alteration by the ordinary law making process.

Properly used, constitutions therefore can provide a foundation for an appropriate and accepted relationship between people individually and the authority of the state.  Where necessary, constitutions can mediate an agreed relationship between communities within a state.  Such a relationship may rely principally on procedures, or on substantive provisions, or on a mixture of the two.  Constitutions can help to ensure the legitimacy of government in the eyes of the people; can underpin adherence to democracy and human rights, even in troubled times; can symbolize shared values while protecting diversity.  Constitutions can contribute to the development of national identity, as well as, importantly, defining the responsibility of the state in the international arena.  In the words of the Commonwealth Human Rights Initiative (CHRI), a constitution “is more than a social contract…it is rather an expression of the general will of a nation. It is a reflection of its history, fears, concerns, aspirations and indeed, the soul of that nation”.[25]

Constitutions thus can play an important role in any society.  Their role has greater potential still in societies threatened by internal conflict, seeking a settlement through which peace can be secured and maintained.  In these circumstances, constitutions can provide a framework for the settlement and offer a degree of confidence that its conditions will be observed.  In this way, constitutions can directly support peace.

Constitutions are unlikely to be able to perform this most difficult of roles unless they are developed through a process that unites the competing political forces, is accepted as legitimate, is widely understood and is capable of delivering effective and acceptable results.  Obvious as these goals may be, very few constitution making processes have met them or even aspired to meet them.  Historically, in many traditions, including the British constitutional tradition, constitutions have been the products of elites, sometimes working with a retiring imperial power.  Inevitably, in any event, most constitutions are developed in parallel with a struggle for political power.  Even in recent times, many constitutions have, at best, involved a settlement between the principal political groups.  At worst, a constitution involves a triumph of one group.

In 1999, in its recommendations to the Commonwealth Heads of Government, the Commonwealth Human Rights Initiative endorsed the importance of the process of constitution making.  The CHRI report grew out of a Conference on Pan-Commonwealth Advocacy for Peace, Good Governance and Human Rights in which constitution making was identified as a “key area…for collaborative action by civil society”.  The principal focus of the report was constitution making in Africa, where, CHRI notes, constitutions “have been treated with profound ambivalence, handed down by exiting colonial powers as a holy grail legitimising the supremacy of the state over society”.[26]  Despite this specific regional application, however, the CHRI recommendations are relevant to constitution making throughout the world, in developing and developed countries alike.

2)     Phases of Constitution Making

Every constitution-making project goes through distinct phases.   Exactly what these phases are may depend on the practical conditions for constitution making and the needs that the Constitution is required to meet.  In circumstances where a constitution is intended to play a role in achieving and securing peace, at least three such phases can be identified.

 

a)      Agenda Setting

The first concerns the scope of the constitution making exercise. Even where a constitution is entirely new, it is necessary to determine whether any elements of it are prescribed in advance, including the extent to which assumptions, principles and institutions from past constitutional arrangements are to be continued. Predetermination of the constitutional "agenda" in this way may manifest itself in various ways: terms of reference for a Constitutional Commission or for the committees of a Constituent Assembly; an initial draft of principles on which the constitution is to be based, or even of the constitution itself; conscious or unconscious agreement between key participants; the manner in which the constitution finally will be approved. But whatever form they take, these are critical decisions.  In order effectively to influence constitution making, women need to be alert to the existence of this phase and be involved in it. This may be difficult; typically, the most powerful players make these decisions and the process may well not be public.

Where a constitution is designed to obviate severe intra-state conflict, the agenda for constitution making is likely to be driven by an earlier process of peace making.  Haysom has observed the need to distinguish the constitution making from the peace-making phase, on the ground that quite different strategies may be needed.[27]  In particular, he argues that the degree of popular involvement appropriate for constitution making may be impracticable or undesirable for the delicate exercise of negotiating peace between the principal protagonists.  Similarly, he suggests that the formula used for identifying the point at which sufficient agreement has been reached on a peace settlement may not be appropriate for a constitutional agreement.  On this basis, an attempt to conflate the two may harm the latter.

On the one hand, the two phases are not entirely discrete.  Most obviously, successful peace making is a pre-condition for a constitution making process that is to have a chance of success.  In Haysom’s words, peacemaking may "provide the bridge to constitutional democracy” without which the constitution may not be accepted as legitimate or may not even be achieved at all.[28]  Equally importantly, for present purposes, a peacemaking agreement may shape the form that the constitution making process takes.

A positive relationship between peacemaking and constitution making is illustrated by the South African experience.  Following the collapse of apartheid in South Africa, there were no legitimate institutions that would be trusted by the majority or perceived as suitable for the purpose of writing a constitution.  Elections would overcome these difficulties at the expense of creating others: in particular, a distrust of both the process and the outcome on the part of the white minority.  The solution therefore was an interim Constitution.  This provided the basis for a government of national unity, while a final Constitution was written by the newly elected parliament, doubling as a Constitutional Assembly.[29]  The prospect that, in the circumstances, the minority would still be likely to be fearful of the outcome was handled by agreement on a set of 34 constitutional principles on which the final Constitution must be based and a mechanism to ensure compliance with the principles, through a new Constitutional Court.  The principles included, for example, guarantees of separation of powers, an independent judiciary, equality before the law (in a form that accepted affirmative action), proportional representation, decentralised government.[30] The initial draft was found wanting in several respects by the Constitutional Court,[31] necessitating alteration before final approval.

The South African strategy may not be useful in all circumstances, although often it will be worth considering how it might be adapted to suit. At a more general level, however, it also offers several lessons.  The first is to ensure that the range of participants and the rules for decision-making in this initial phase are appropriate vehicles through which to secure a lasting agreement for peace. Haysom describes how "sufficient consensus" provided a suitable formula for this phase of the process in South Africa, which also subsequently was adopted in Northern Ireland.[32] Secondly, it is important to strike a careful balance between predetermining constitutional principles that give all parties confidence that they can live with the outcome, without unacceptably inhibiting the range of constitutional options available for the more public and open constitution making phase. 

Thirdly, this preliminary phase may be used, not only to agree on aspects of the substance of the Constitution, but also to prescribe, at least in outline, the process by which it will be made and brought into effect. In the South African case, for example, the Interim Constitution of 1993 set out the constitution making process, as well as the constitutional principles.[33] Again, these are decisions to be taken seriously. In particular, anticipating my argument in the next part, it is desirable to build into these process requirements obligations for public consultation in an appropriate form. Prescribing the constitution making procedure in advance also may give it useful additional impetus, when complications arise. The Australians learnt this the hard way more than 100 years ago, after an initial attempt to agree on a federal Constitution failed because the approval process had been left to the respective governments and parliaments, all of which had other priorities. On their second attempt, they took care to prescribe a mandatory procedure in legislative form and to involve the voting public more widely.[34] The Australian experience also showed that some flexibility may be required, to depart from the predetermined process if unexpected obstacles are encountered along the way. Anticipating this difficulty, the South African procedure provided deadlock-breaking mechanisms instead.[35]

 

b)      Development and Design

The choice of an appropriate body to develop a new constitution is complicated by the need to combine technical understanding of constitutional issues and options with whatever is required to ensure that its results are acceptable and perceived as legitimate.  In other words, this stage of the process must be able to draw on the views or preferences of relevant political forces and of the community at large, as well as on a reservoir of understanding of constitutional arrangements.

Two broad options can be identified for this purpose: a representative body or an independent (usually expert) body. The two are not necessarily mutually exclusive, although each tends to be a distinct type. A representative body has the advantage of greater democratic legitimacy. For this reason, it is likely to have greater access to resources. It should be able to negotiate a final draft that is politically acceptable. It may be able to bring a Constitution into force, in a way that is acknowledged as legitimate. An body of independent experts, on the other hand, has depths of understanding of constitutional issues that an elected body may lack. Its independence from political forces may give it legitimacy of another kind, in the eyes of the public.

 

In what follows, I briefly outline each of these two options. I also canvass some issues that both options share. The first is how to make best use of experts, including international experts. The second is the decision-making formula. The third is the need for an effective public consultation and communications strategy.

Representatives

A representative constitution making body usually is an elected body. It may take the form of a constituent assembly, elected specifically for the purpose or the general legislature, using special or ordinary voting procedures.  A constituent assembly has the advantage of being established for a discrete and special process.  It may be less likely to benefit or to be perceived to benefit directly from the institutions created by the new Constitution. For these reasons both the process and its constitutional product may attract greater public attention, interest and trust.

One issue that is likely to arise in choosing between the two is the composition of a constituent assembly and the extent to which it is distinguishable from a legislature. If a constituent assembly is fully elected, on a basis that allows candidates to stand as representatives of parties, its composition may be similar or identical to that of a legislature. In this case, there will be a temptation for one to translate itself into the other, with the loss of whatever benefits are associated with constituent assembly status.  Thus in East Timor, towards the end of the constitution making process, the constituent assembly determined to continue its own existence, by becoming the initial legislature.  Anticipating this issue, under the process put into effect in South Africa, the first democratically elected parliament functioned as the Constitutional Assembly for a stipulated period each week. 

On the other hand, in some circumstances, a constituent assembly may deliberately be constituted in a way that differs from the ordinary legislature in order to suit the particular needs of the constitution- making project. For example it may be larger, or partly appointed, to enable the participation of key interests.[36]  Whether this is advantageous or not, will depend on the circumstances. Misused, a departure from ordinary principles of representation will detract from a representative body's credentials. Properly handled, it can enhance them.

If a representative body is used, the choice between a constituent assembly and the ordinary legislature has particular relevance for women. Typically, women are under-represented in legislatures.[37] The novelty and significance of a constituent assembly give women a strategic advantage in seeking proper representation. Whether the assembly transforms itself into a legislature or merely designs the constitution that provides a framework for the new legislature, enhanced representation of woman in the assembly should pave the way for their representation in future legislatures as well. To this end, the choice of electoral system is important, for both assembly and future legislatures. Particular forms of proportional representation enhance the representation of women.[38] Common law countries are often resistant to the introduction of proportional representation. The special needs of constitution making strengthen the case for its use, however, at least in a constituent assembly and possibly, through this process, in the legislature as well.

 Independent commissions

Alternatively, the task of developing a constitution may be conferred on a body at arms length from elected representatives, often selected for its expertise.  Depending on the circumstances, the advantages of this option may lie both in the quality of the draft constitution and in distance from the political process.  Where politicians are not held in high regard, use of an independent body may enhance the legitimacy of the constitution making process in the eyes of the public at large, as seems to be the case in Kenya.[39] 

An independent body may be constituted by any number of members considered appropriate for effective decision-making and with any mix of expertise deemed useful.  Expertise alone may not be the sole criterion. Often members are selected with an additional eye to representation of key communities or groups. Thus in Fiji, two of the three members of the Constitutional Review Commission were drawn respectively from the indigenous Fijian and Indo-Fijian communities, while the third, Sir Paul Reeves, was an impartial chair, acceptable to both sides.[40] Although it was not the case in Fiji, concern for representation is likely to extend to women as well. Thus the CHRI reports that in Eritrea “just short of half of the membership of the Constitutional Commission were women, and all nine ethnic groups were represented”.[41]

The independence of such bodies is the key to their success. Paradoxically, however, it also limits their effectiveness.  An independent constitutional commission is dependent on elected institutions for its constitution, funding and terms of reference.  Its recommendations cannot automatically take effect.  Implementation requires acceptance by political forces at the end of the drafting process, if not before.  Recommendations deemed not acceptable may be changed, potentially affecting the integrity of the constitutional package as occurred in Fiji.[42]  Alternatively, the commission may develop its own recommendations with an eye to what is likely to be acceptable. In this regard, a constitutional commission is in a similar position to most law reform commissions.  The best advisory bodies juggle these roles successfully.  Failure to do so, however, detracts from the quality of the advice, the regard in which the body is held, or both.

Using experts

Constitution-making bodies require access to technical, constitutional expertise.  Properly used, experts can help policy makers to identify and evaluate the full range of options and can reduce the eventual choices to terms appropriate for inclusion in a constitution.  Experts can be a mixed blessing, however; captive to received wisdom and past practice, with unsatisfactory consequences both for constitutional design and the terms in which constitutions are written.  Undue reliance on experts by a representative body also can detract from its own legitimacy. Once more, the South African process offers a positive illustration of how to proceed.  Six theme committees, each of which had its own technical committee of advisors, carried out the initial work of the Constitutional Assembly.  An independent panel of constitutional experts also was established in relation to the process as a whole.[43]  At least in theory, however, the roles of the advisers and experts were confined to technical issues and the resolution of deadlocks, rather than to the making of policy choices. In practice these distinctions are not easily drawn. The very attempt to do so, however, overcame problems that might otherwise have arisen.

 

 

Local constitutional expertise is less likely to be an issue for a body that is itself constituted by experts.  Any constitution-making body, however, is likely also to seek to avail itself of international expertise. Comparative constitutionalism clearly has a role to play in constitutional design, whatever its limitations may be once a constitution is in place.  Again, however, some caution is required. International experts can offer knowledge of the experiences of the countries and constitutional traditions with which they are familiar, which may be difficult to obtain second hand.  They may thus assist policy makers to identify options, to think laterally and to draw on best practice. On the other hand, international experts can be used inappropriately. They may be perceived to have even greater cachet than local experts, and their views correspondingly may be given undue weight.  Local bodies may not be in a position to evaluate the real expertise of international experts, in order to distinguish points on which they are advancing their own ideological position.  Even the most expert of international experts may understand the circumstances and needs of the country on which they are advising less deeply that their own.  Thus, I recall one meeting between the South African Independent Panel and other experts, in which highly distinguished constitutional lawyers from elsewhere in the world argued forcefully against inclusion of social and economic rights in the South African Constitution, despite the Panel's insistence on the need for such rights in the circumstances of their country.  The potential for misunderstanding is greater still where an expert is comes from a different legal tradition.  This was something of a problem for common law experts in East Timor, bent upon a constitution broadly in the civilian tradition.

Decision-making formulae

Whatever the process used to develop a constitution, it is likely to be necessary also to agree in advance how decisions are to be made and how disagreements on important issues can be resolved. The choice of decision-making formulae and deadlock mechanisms will depend on the circumstances including, importantly, the nature of the final approval process. Majority decision-making is an obvious option, but counter-productive if special majorities, or the agreement of particular groups, are required at the approval stage, in the interests of securing peace. Consensus is desirable, but affected by the familiar problems of lowest common denominator decisions and the potential for a small, extreme minority to frustrate the constitution-making process.  Recent constitution-making exercises suggest other possible mechanisms as well, often involving recourse to other institutions, or to the voters. In South Africa, for example, the Panel of Independent Experts was given a role in the resolution of deadlocks, in a complex system of checks and balances, in which the referendum was a possible, final step.[44] The problem was defused in South Africa in any event, however, by the need for the final constitution to comply with the agreed constitutional principles.   In Uganda, CHRI reports that points of disagreement also could to be referred to the voters for resolution.[45] In the Northern Territory of Australia, a parliamentary committee charged with the responsibility of drafting a Constitution for statehood suggested that important points on which the committee could not agree should be left for decision by an elected Constitutional Convention.

Public consultation and communication

Provision must be made for public involvement during the constitution-making phase, whether the specific agreement of voters is required at the final approval stage or not.  Where the constitution will be referred to the public for approval, clearly it is prudent to involve them at earlier stages, in the interest of public understanding, as well as to ensure that the draft meets people's expectations and needs.  Where the public is not involved formally in the approval process, earlier consultation is even more important, to establish the legitimacy of the final product in their eyes.

Public consultation may take a myriad of forms, but at least some of the ground rules are clear.[46]

First, consultation must allow people to make an active contribution.  Too often, an obligation to consult is assumed to be satisfied by public meetings in which members of the constitution-making body outline proposals for change and in which the audience plays a largely passive role.  In fact, this is inadequate.  Such meetings are unlikely to attract sufficient numbers of people; unlikely to encourage real expression of views; unlikely to provide a basis for public ownership of the constitution.  Consultation should begin early, before the features of the new constitution effectively are set. Thus in Uganda, the public was initially asked whether a new constitution was required and, if so, what should be in it. [47] In addition, wherever possible, consultation should be interactive and empowering, encouraging people to make a constructive contribution to the process. Considerable organisation is needed, for this to be effective. It may be necessary to train co-ordinators to conduct workshops at grass roots levels.[48]  If this course is followed, women should be well represented amongst both trainers and trainees.[49] 

Follow-up is needed too, so that people accept that their contribution has been taken seriously.  At the very least, this involves acknowledgement and some form of report back on the outcome.  Thus, in South Africa, each of more than two million public submissions on the Constitution was acknowledged. Those who made submissions were sent copies of successive drafts.  Even so, CHRI reports a degree of cynicism on the part of the public about whether their views would make any difference.[50]

Secondly, public consultation must be as inclusive as possible. Invitations to contribute should be disseminated widely and made attractive. Specific strategies are needed to overcome, as far as practicable, the tendency of particular groups to dominate public discourse.[51] Strategies are needed also to encourage the involvement of groups that are likely to be reticent, including rural and disadvantaged groups[52] and, frequently, women.  Uganda seems to have had some success in attracting the involvement of women: according to CHRI “one third of the twenty five thousand submissions received by the Ugandan Commission were made by women”.[53]  The capacity of a constitution to contribute to peace may also be enhanced by involving the diaspora in consultation at this stage.

To ensure broad public involvement, in an appropriate way, the most up-to-date communication techniques should be used.  Constitutions and the principles embodied in them are abstract. Institutions of government tend to be remote.  Effort needs to be made to present constitutional issues in a form that people can understand and, equally importantly, will attract their interest.  All forms of media should be employed, including the Internet.[54] Particular communication strategies for particular groups may demand different approaches within each medium.  Text materials must be translated into all major community languages.  Other modes of communication must be developed for groups that are illiterate or sight impaired.  Pop culture or comic strip form may be used to help to make ideas accessible.  The body charged with responsibility for the public consultation program should be made accountable for its effectiveness. Communication strategies should be tested, results should be measured and steps taken to overcome deficiencies that emerge.[55]

Civil society conceived either broadly or narrowly, has an important role to play.[56]  A consultative process should extend to the organizations of civil society, as well as to the public at large.  Many organisations are likely to have distinctive and developed views on constitutional issues.  Organisations (including political parties) also provide avenues through which their membership may be reached.[57] Effective involvement of civil society may assist to compensate for the inability of a public consultation strategy, however innovative, to reach every member of the public.  Civil society may even take a lead in bringing disparate views together and developing moderate constitutional options for consideration by the constitution-making body.  Thus in Fiji, the Citizens Constitutional Forum brought together representatives from indigenous Fijian and Indo-Fijian communities, carried out public consultations, presented developed positions to the Constitutional Review Commission, and provided an after care service once the Constitution was in effect.[58]

 

c)      Approval

The final stage in constitution making is an approval process, to give the constitution legal effect.  The choice of approval process is important, because it will assist to confer legitimacy on the constitution.  Almost always, approval involves a democratic decision.  The particular form of democratic decision will vary with the circumstances of the country concerned.  In post apartheid South Africa, approval by a two thirds majority vote in the democratically elected Constitutional Assembly was appropriate, to underscore the transition to democracy and the transfer of political power to the majority of the people. Use of the Constitutional Assembly for final approval was feasible, because of the earlier agreement on constitutional principles between the principal political forces.  This solution may not be possible in other cases, however.  In particular, where peace between communities is at stake, and has not been resolved by earlier agreement, it may be desirable to seek majority approval within different communities.  This is a familiar requirement for the approval of constitutions designed to establish a federal form of government, even in the absence of substantial community tensions.

Approval may be given by a representative body or bodies or by the people, voting directly in a referendum.  The question whether to use the referendum is likely to arise whether the constitution is designed and negotiated by a representative assembly or by an independent body. In the latter case, however, the agreement of representatives may be required before the constitution is finally put to the people.  The pros and cons of approval by referendum must be weighed in the light of the circumstances of the polity concerned.  A referendum has symbolic significance and is likely to give a greater sense of ownership by the people at large.  On the other hand, a referendum alone is an empty gesture without appropriate public involvement at the design stage.  Populist pressures may more easily sway a referendum vote, complicating the introduction of a constitution that seeks to strike a delicate balance between the demands of communities in conflict.

The choice of an approval mechanism also may affect the choice of the process for subsequent constitutional change.  This is particularly so if the initial constitution is approved by referendum. The referendum is a familiar device for constitutional change; on the other hand it is also costly, cumbersome and may make the constitution unduly rigid. Ideally, a constitution alteration procedure should strike a balance between securing the constitutional settlement against alteration that would undermine its equilibrium and enabling appropriate change to the text of the constitution to meet new circumstances.  The balance is difficult enough to strike, without being unnecessarily circumscribed by a link with the procedure by which the constitution initially was approved. 

Whatever method of approval is used, a communications strategy will be needed, drawing on the various techniques described in the earlier part.  Such a strategy is particularly important for approval by referendum.  Voters must be assisted to understand the instrument on which they are required to vote.  Because a referendum essentially offers an opportunity to vote only yes or no, voters need to understand the collective effect of the constitution and to weigh up the advantages of accepting it as a whole against the perceived disadvantage of bringing into force particular clauses of which they may not approve.  A fair opportunity must be given to dissenting voices. There should be a mechanism for answering unexpected questions that inevitably will arise.  In many cases, it may be appropriate to establish a referendum administration at arms length from the political forces, or one in which all sections of the community are fairly represented.  These issues are less important where approval is entrusted to a representative body.  Even in this case, however, public education and communication is important, not only to keep people informed, but also to give them a sense of ownership of the new constitution.

 

3. The content of Constitutions

1)     Substance

The substance of a constitution depends in part on the context in which it is required to operate and the national circumstances to which it must respond.  It is not possible in this paper to anticipate the full range of substantive issues that may arise in any detail.  Instead, this part identifies some of the main contemporary issues in constitutional design, with particular reference to constitutions that play a role in securing peace.

Threats to peace may be external or internal.  This paper is principally concerned with the latter.  One mechanism is relevant to either, however; the manner in which decisions to engage in armed conflict is taken.  Generally, decisions of this kind constitutionally fall within executive power, if only because armed response often calls for speedy and covert action.  Nevertheless, in designing a constitution for peace, attention should be paid to ensuring accountability and transparency for decisions to engage in conflict, to the maximum extent practicable.  At the very least, there should be a requirement for legislative involvement, retrospectively if not prospectively.  Thus the South African Constitution requires the Parliament to be informed "promptly and in appropriate detail" of employment of the defence force.[59] A state of emergency can be declared only by the Parliament and its length and effect also are closely circumscribed.[60]

Most constitutional systems are influenced by European prototypes, as a direct or indirect result of colonial experience. In many ways this influence is beneficial, setting standards on which there is widespread agreement and offering institutional arrangements through which the standards may be achieved. Unquestioning adherence to these prototypes has disadvantages, however. Inherited systems work differently outside the physical circumstances and historical cultural context of the countries in which they developed.  It is rarely possible to transplant the key institutions on which the integrity of an organic constitutional system depends and to expect them to operate with the same subtlety and effectiveness as is possible in their original setting.  Examples include the British Parliament, the French Conseil d’Etat and the American Presidency.  Inherited institutions may oust others, with deeper cultural roots in the community, capable of development to suit its needs to equal or better effect.

Constitutional models with roots in the 18^th and 19^th centuries also may artificially restrict the range of choices perceived as possible.  Where the circumstances of a complex 21^st century society require creative and innovative constitutional solutions the dominant assumptions of these older models may inhibit an effective outcome.  Thus, for example, while indivisible sovereignty, majoritarian parliamentary democracy, the equality of citizens and the neutrality of the state are concepts that have made major contributions to world constitutional practice they are not automatically applicable in all societies and in some cases detract from peaceful solutions.

For societies in conflict, workable solutions may run counter to one or more of these constitutional constraints.  Power sharing arrangements of various kinds, for example, involve a departure from Westminster principles but should not be dismissed for this reason alone, as long as the predictable difficulties of effective decision making and accountability can be overcome in some other way.  Recognition of group rights may be difficult to reconcile with the liberal conception of equal citizenship but may nevertheless assist to establish peace.  Federalism removes all possibility of a single locus of sovereignty, but is a recognized technique for giving distinct communities a degree of protected autonomy while enabling unity in matters of mutual interest.  The experience of the last twenty years or so suggests, moreover, that federal arrangements can be more flexible that had previously been assumed.  For example, the Constitution of Ethiopia seeks to overcome the fear of secessionist tendencies, so often associated with a federal model, by making specific provision to permit secession.[61] Asymmetrical federal systems increasingly are accepted as a justifiable response to particular needs.[62] The Constitution of Belgium shows how the federal principle may be adapted to satisfy demands for autonomy within a single state by overlapping cultural, linguistic and geographic communities. Yash Ghai recently advanced yet another possible variation, with his suggestion that one way of ensuring that national legislation was acceptable to communities in conflict was to invert the general rules for the resolution of inconsistent laws in a federation by allowing sub-national legislation to prevail.[63]

To broaden the framework of reference for constitution makers to encompass the full range of acceptable solutions is a challenge on the threshold of the 21^st century.  It is matched, however, by the challenge of keeping constitutional innovation in appropriate check.  Equality, democratic majority decision-making and the separation of church and state are constitutional doctrines that should not be displaced without good reason.  It is also important to avoid a constitutional settlement that, by establishing a fragile modus vivendi between groups in conflict unwittingly entrenches division into the future, past the point where it might have diminished by generational change. 

The need to balance solutions conducive to immediate peace with other constitutional values has particular relevance for women.  A substantial measure of group autonomy may often be a solution to intra-state conflict.  But where autonomy protects cultural, including religious, practices from national norms, it may clash with the needs and the rights of women.  To say this is not necessarily to take a peculiarly western perspective.  Western history also shows how women have been subjugated and continue to be relegated to inferior positions in the name of culture and religion.  Nor is it to deny the rights of women in different culture to determine for themselves what equality involves.  My argument simply is that group cultural autonomy can be used as an excuse to keep women in positions that on any view are subordinate, to deny them an effective voice and even to threaten their physical security.

A constitutional system must delimit the border between local autonomy and the rights of groups likely to be disadvantaged by it, of which women are an obvious example.  Further, the border must be drawn at a point and in a way that enables change and offers opportunity to young people in the future.  This is a process that will always be difficult.  The degree of difficulty should be lessened by the full involvement of women in the process of constitution making.  International norms can and should be used as a guide, arguments about their provenance not withstanding.

Women may also have particular views about other aspects of constitutional design that still are relatively controversial but which may indirectly contribute to peace.  Two are mentioned here.  The first concerns the inclusion in a constitution of social and economic rights including, for example, rights to health, housing and education.  Rights of this kind concern day-to-day living and give priority to alleviating extreme disadvantage, which also is a threat to peace.  Traditionally, such rights were not considered appropriate for inclusion in constitutions, at least in justiciable form, on the ground that they do not prescribe standards with which courts can properly deal.  Gradually, however, practice has changed.   At an earlier time, social and economic goals were included in non-justiciable form in the Constitutions of India[64] and Papua New Guinea.[65]  The original objective was to influence the choices of elected decision makers and to make them accountable for them. Over time, however, they have tended to influence judicial decisions as well.  More recently, various mechanisms have been devised to give such rights greater constitutional force. The National Commission to review the Working of the Constitution of India has recommended that responsibility to review the level of implementation of the Directive Principles be conferred on a "body of high status".[66]  A referendum process in the Constitution of Thailand enables voters to force the legislature to consider compliance with social and economic rights.[67]  The Constitution of South Africa has entrenched social and economic rights in terms that seek to allow adjudication without unduly inhibiting the budgetary and policy choices of elected governments.[68]

A second aspect of constitutional design, still in an experimental phase, concerns the impact of a constitution on private action that infringes unacceptably on people, individually or collectively.  Typically, constitutions limit the power of the public sphere. In many cases, the effect is to inhibit intrusion into the private sphere.  Such a construct may work to the disadvantage of people, individually and collectively, where powerful private institutions act against the public interest. Specifically, it may disadvantage women, by deterring the state from intervention that is necessary to protect them and to enhance their interests.  Several approaches to the problem are possible.  One is to draft rights protection in a way that ensures that elected institutions are not constitutionally constrained to the point where they are unable to act in the public interest.  Mechanisms developed in recent years include the "balancing" clauses in some of the more recent rights charters that guarantee rights "subject ... to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society",[69] or some such phrase.  A solution of a different kind gives the constitution a degree of horizontal effect, as a benchmark against which to measure state action, including the development of the common law.[70]

One final issue, also in the category of constitutional experimentation, deserves mention in this context: the national status of international law.  At least for countries in the common law tradition, national and international law are treated as largely distinct. In part this is the quid pro quo for the constitutional assumption that treaty making and ratification lie with the executive branch alone.  To the extent that international instruments, especially human rights instruments, represent norms accepted by diverse countries as appropriate standards for humanity, this approach is outmoded.  It would be preferable to give international law direct effect, albeit allowing national institutions some leeway to adapt it to national circumstances.  This could not be done without involving the legislature at the stage at which treaty commitments are made. This is a familiar approach in civilian systems, now adopted for South Africa as well.[71] While more cumbersome initially, it has potential for advantage in the long term through greater public acceptance and understanding of international law

2)     Style and Form

Constitutions provide the fundamental rules for the constitutional and legal system. They also have a symbolic role, which may be heightened further still, if they entrench an agreement designed to secure peace. While their content is important, for both of these reasons, their style and format require attention too.

As far as possible, a constitution should be written in terms that are clear, understandable, free from unnecessary qualifications and as inspirational as its legal purpose allows.  Reasonable exemplars include the French Declaration of the Rights of Man; the United States Bill of Rights; the Canadian Charter of Rights and Freedoms; effectively the whole of the Constitution of South Africa.[72]  Too often, instead, constitutions are encrusted with technical language, either to preempt untoward judicial interpretation, or from habit. Arguably, all legislation should be written in a more comprehensible fashion. Whatever the future of the plain English movement in relation to ordinary legal documents, however, constitutions, by their very nature, are in a category of their own and should be treated accordingly.

 

Most constitutions have preambles that reinforce their symbolism.  The preamble may be an appropriate context within which to state shared values and aspirations, including aspirations for peace.  Again, the form in which the preamble is written will enhance or detract from its usefulness for this purpose. In the approach to a referendum on a new preamble, in 1999, an Australian survey found remarkable agreement amongst respondents about the style in which it should be written, and a surprising level of agreement about substance. Thus respondents said that the preamble should “make an impact on people” and have “power to inspire by its dignity and immediacy”.  It should use “understandable words that are for people”:  “Half the nation is bored with long words they don’t understand”.  It should be “written so a child can understand it and taught in schools”.  It should be “uniquely Australian”.[73] The proposal ultimately put to referendum[74] was considerably more flowery, which may in part account for its rejection, although the dynamics of the debate were complex. One of the problems that emerged in the course of this exercise was concern by governments that the new preamble would influence judicial interpretation of the old Constitution. One of the many lessons to be learnt was the need to for constitutions to be considered as a whole, when substantial changes are made.

Finally, in designing a constitution, attention should be paid not only to the way in which matters are expressed but also to the order in which they appear in the constitution and to its structure as a whole.  The structure should assist the reader to understand the Constitution and may have significance in its own right.  For example, the lay out of the first three chapters of the Australian Constitution, following the Constitution of the United States, has been held to establish a separation of powers.[75]  The order in which ideas are expressed in a constitution also may enhance or detract from public interest in it and from the centrality of constitutional values.  Thus a constitution that begins with a list of the entitlements of elected representatives is likely to have less of an impact than one that gives priority to the values for which the polity stands, including, for present purposes, peace and harmonious co-existence. Most constitutions drafted in the last decade or so regularly begin with statements of rights, leaving matters of greater technical detail to later parts.

 

 

4. Once the Constitution is in Place

The process of creating a new constitution on which peace might be founded naturally generates intense activity and interest.  There is a tendency for interest to die once the constitution is in place and for other more immediate problems to take over.  To a degree this is inevitable.  But I argue here that deliberate attention should continue to be paid to the constitutional project. Without it, there is danger that the constitution will fail or, at least, work less effectively that it might have done.

Even the longest constitution is relatively brief by the standards of modern legislation.  Appropriately, constitutions prescribe fundamental principles and establish or require the establishment of the main institutions of government.  Practical implementation of a constitution generally requires a host of additional laws.  Typically, these deal at least with the electoral system, and the courts.  Statutes may be needed to establish other institutions, ranging from electoral commissions to the public service to the ombudsman to a human rights commission.  As in South Africa, a constitution may mandate the enactment of principles and procedures for the review of government action and for access to government information: in other words, a system of administrative law.[76]  Where a country is established as a federation, the division of power between spheres of government will be included in the constitution itself.  In other systems, however, devolution legislation may be needed to fully implement the constitutional scheme.

The importance of some or all of these measures sometimes is recognized by requiring their enactment as “organic” laws, lying between the constitution and ordinary laws in their importance and requiring a special legislative procedure.  Even in the absence of such a technique, however, laws supporting a constitution merit special attention to measure compliance with principle, to monitor style, to spread public information about them and to ensure that they are enacted at all.  Thus in South Africa a major debate on administrative law followed the enactment of the Constitution.  Failure to have proper regard to implementing legislation can be a disappointing finale to a carefully designed and inclusive constitution making exercise.

Most constitutions are interpreted and applied by courts, in the event of dispute about their meaning.  The scope and procedures for judicial review may vary between constitutional traditions. In almost all countries now, however, courts have profound influence on the meaning and effective operation of a constitution and the extent of compliance with it.  For these reasons, the constitution and performance of courts are further subjects for constitutional aftercare.

The public regard in which a constitutional court is held may affect regard for the constitution itself.  A constitutional court must attract the respect and trust of the public at large. This may be both more important and more difficult if the constitution is designed to underpin peace. Impartiality and knowledge are key qualities, but more still is required. Within the limits of what is possible, a constitutional court should reinforce the inclusive nature of the constitution, in its composition and its behavior. It should be constituted by women and men; judges from different communities; people with varying perspectives. The process of selection should be transparent and fair.  Both the court itself and its decisions should be accessible. Courts should seek respect through the wisdom of their decisions and the humanity of their actions and limit their reliance on rules proscribing "contempt" which may appear to be self-serving. Legal reasoning and careful factual analysis will never be regular reading for non-lawyers, but judgments should be written as clearly as possible, and key decisions presented in ways that people can understand. 

In common law systems, at least, courts deal only with the issues brought before them by litigants.  In reaching a decision, judges take into account the argument of the parties, although they are no longer, in most cases, strictly so confined.  Groups with an interest in the evolution of the meaning of the constitution may be able to take advantage of this process.  They may themselves become litigants in strategic cases.  Depending on judicial procedures, they may be given standing to intervene, and to put arguments that might not otherwise be put.

An effective constitution requires public understanding of it.  In earlier parts of this paper, I suggested ways in which the public might be involved in a constitution making process.  Strategies for public education and information should be continued once the constitution is in place.  Understanding of the constitution should begin in schools, preferably in a way that focuses on principle, rather than technical detail.  Constitutions should be translated into relevant community languages and, perhaps, also presented in other forms.  New comers to the community, or at least permanent residents, should be assisted to become familiar with the constitutional regime as well.

Constitutional education may be entrusted to an independent public body.  But the active involvement of civil society is critical as well, to stimulate public debate, ensure the accountability of elected representatives and take strategic action before courts.  Again, the Citizens' Constitutional Forum in Fiji provides an example.  The CCF remained in existence after the Constitution came into effect. It thus was available to argue the importance of compliance with the Constitution as the fragile consensus on its terms began to deteriorate.

 

5. Women, Constitutions and Peace

Women sometimes have been at the forefront of constitutional movements.  A few women now have prominent roles on constitutional courts. More often than not, however, women have not had a lead role in constitution making or implementation.  Increasingly women are appointed or elected to constituent assemblies, commissions or courts. Even in these positions, however, often they do not have major influence.

This must change, if constitutions are to fulfill their promise as a basis upon which community consensus can be secured. The perspective that women bring, about both substance and process, is essential to the drafting and implementation of a constitution in a modern society. The question is how this can be achieved.

Even where they are not in leading roles, women often play a significant part in developing constitutional ideas behind the scenes, in supporting constituent assemblies or independent bodies, in ensuring the spread of information and ideas throughout the community.  During the course of my own work, it has been my privilege to meet many such women, and I pay tribute to them. I note that they also offer an invaluable reservoir of understanding about constitutional process and substance. A network of women with ideas and experience in constitution making would be easy to establish. It would be a great resource on which other women, involved in new constitutional projects, could draw. Of all the many good things that might come out of this meeting, I very much hope that this one will.