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A labour of law
Reflecting on the new faith in federal constitutions
By Mr Jolyon Ford, Faculty of Law
Ours has been called ‘the age of constitutions’. Nearly 60 per cent of UN members have made ‘major’ amendments to their constitutions in the decade 1989–1999, and 70 per cent of these adopted entirely new constitutions.
enewed faith has been placed in the role of constitutional frameworks for peaceful national development. Federal constitutional structures are central to plans for peaceful, modern nations in multi-ethnic, post-conflict transitional societies such as Afghanistan and Iraq. And EU members are in the process of deciding on whether (and how) to formalise Europe’s future in constitutional form.
What can be learnt here from the experience of Australia (as a successful, century-old federation) and South Africa (into its first decade with a new democratic constitution)?
Firstly, the process of constitution-making is as important as the legal document that results: the process of creating a constitution can itself be transformational and become a vehicle for national dialogue and reconciliation, allowing competing perspectives and claims to be aired. Interim, transitional measures work well and allow sufficient visible change from a previous order.
Secondly, while constitutions are often modelled on other countries, for longer-term legitimacy, new constitutions need to be locally fashioned and embedded by local representative actors to locally determined timeframes. The South African example shows that constitutional debate kept political space open, structured the parameters of possible political action during the transformation, and provided a site to receive the “incompatible constitutional imaginations of local contestants”. The ‘new faith’ may mean constitutions become standardised documents, but local variation is an essential feature. The new constitution must become part of the shared history of the people in order for constitutionalism to become a tradition there.
Thirdly, the Australian example is a useful comparator for the EU (where it is questioned whether there is an existing pan-European community), in terms of whether a sense of belonging is a precondition to constituting a new entity, or whether it is the process of constituting that leads to this identity. How does one foster ‘constitutional patriotism’, but not divisive nationalism, while not glossing over important localised identities? Europe faces more difficult challenges than did Australia in this regard. For example, what are the longer-term implications of constitutional change that results organically (from national reflection or choice) as opposed to deliberately creating a constitution to solve a political crisis?
Fourthly, European scholars can draw on the Australian experience in examining the ‘centrifugal tendency’ in federations. How does one guard against inevitable centralisation of power? How is the tension between the need to decentralise (and accommodate localised power in Iraq and Afghanistan) to be balanced with the need for efficient, centrally-ordered government on limited resources?
Despite the possibilities that constitution making holds, it is also possible to question the renewed faith in constitutions. Constitutions themselves are not a guarantee of sustained democracy and human rights. In the urge to constitutionalise, it should be kept in mind that while legal institutions and their actors are important to transitional societies, there are limits to the role of lawyers, rules and written instruments, and not everything valuable can be captured in legal forms. A constitution should be seen as a “set of interlocking processes rather than a single one-off event or document”. A written constitution may in fact foster division rather than cohesion: the freezing of the political into the legal can be threatening to some groups, which highlights the need for an inclusive process. Attention needs to be given to how particular local elites shape the reception of constitutionalism to achieve their own particular aims.
What lessons can be learned for Australia’s constitutional development? It is true that Australia has a relatively stable federal history. It has been said that the “inaccessibility of the Australian Constitution is a serious defect in our constitutional arrangements”. The future threat to constitutionalism in Australia is not of precipitous change (as might result from weak constitutional legitimacy in a new democracy), but rather a mass inability to understand, identify with, and care about the Constitution, and so an inability to make reasonably informed and rational decisions about proposed changes, or to have an institution-affirming perspective in hard case political judgments of the Bush v Gore (Florida vote count) variety.
The challenge of constitutionalism in Afghanistan and Iraq is to gain sufficient weight in local politics, and (as in Europe) in coping with the reality of existing diversity. Constitutionalism is as important as constitutions, and not necessarily advanced by rewritten documents. As we reflect on a century of federation, and watch or assist younger federal constitutional democracies, we should also ask how we can improve and enrich our own constitutionalism, and so ensure a more demanding, less apathetic, more inclusive and participatory national life.