Topic 4 - Notes.pdf

8/19/2019 Topic 4 - Notes.pdf

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T O P IC

4

MAKING A CONSTITUTION

H o w a r e c o n s t i t u t i o n s c r e a t e d?

H o w d o t h e y a c q u i r e l e g i t i m a c y ?


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LW308: Constitutional Law 4.2

The cycle of political legitimacy

1. Historical

events leading to

new

concentrations of

power

2. Process oflegitimisation of

new systems of

central power

4. New

instability,

impetus for

change

3. Stabilisation,

normalisation ofexisting system

of governance

T o p i c 4 c o n c e p t m a p

This map is a representation of the key phases involved in the

establishment and legitimisation of new regimes.


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To p i c O v e r v i e w In this Topic we will introduce you to how the components of a

constitution may be made. Mostly we will discuss constitutional

change as a result of lawful processes; but we will also brieflyconsider constitutional change by an unlawful process.

For the most part we will concentrate on constitutions that are brought into

existence by lawful means. It might seem a little unusual to talk about making

constitutions by some unlawful process but there have been instances, that we

have already discussed elsewhere, where the courts have had to acknowledge that

constitutions and fundamental changes in constitutions have been brought about

by methods which were originally illegal. Seen from the perspective of any

existing regime any overthrow of power, even though it might be the product of a

people's revolution or through anticorruption forces, or covert action by those

who call themselves the good guys, would be illegal.

But in a sense it is what happens afterwards that is crucial. Perhaps what we also

need to understand is that historically nearly all systems of centralised authority

have established themselves at least initially through violence, and only

afterwards have sought legitimacy via popular consent. So, constitutional law for

all of its legal formalism is inherently also about that process of legitimising

governance.

This is where we really start to grapple with the fact that constitutional law is

very political. It has the effect of legitimising existing governance structures and

de-legitimising opposing ones. However if we go far enough back in history, or in

even far enough forward we tend to encounter important historical moments in

which old systems are replaced by new ones. This may take place due to war,

coups, revolutions, or it may take place as a result of a long slow process of

social, legal and political evolution. It is for this reason that lawyers cannot

completely close their eyes to the fact at certain times great upheaval may occur

that leads to a permanent change in constitutional arrangements in a country.

The diagram below represents this process as cyclical, and if we take a long enough

view of history it probably is. Even though Great Britain for example has long

history of slowly evolving constitutional law rather than radical upheaval, that

history nonetheless still involves the forces of shifting power concentrations,

legitimisation of new elites and ongoing change. It is impossible to say if any

country has yet established a system of central authority that will endure forever.

Having said all this, the main focus of this topic is upon lawful constitutional

change. Lawful constitutional change may be an ongoing process throughout stages

3 and 4 in the diagram below and may be a way of prolonging stability of a given

system preventing or delaying more radical upheavals.


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T o p i c O u t l i n e

1. Introduction

Exercises 1-3

2. Method for redrafting into plain language

Exercises 3-8

3. Conclusion

L e a r n i n g O u t c o m e s

Upon successful completion of this topic students will be able to:

Identify the different process involved in the formation of constitutionsespecially in the context of the South Pacific countries;

Describe the processes and procedures adopted in respect of the creation

of constitutional independence and self government for the various South

Pacific countries;

Describe and evaluate the process of decolonization in the South Pacific

and its relevance to establishment of constitutions; and

Analyse the ways in which the courts decide when and how to recognise

constitutional changes which may have commenced unlawfully.

C h e c k l i s t o f A c t i v i t i e s To complete this topic you must:

1. Read this topic guide;

2. Complete the listed readings for this topic; and

3. Complete the activities.


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L a w f u l P r o c e s s The elements of a constitution are regarded as valid by the courts when they have

been made lawfully that is to say, by a body that is authorised by law to do so and by procedures that are authorised by law. In areas such as this the relationship

between law and political authority is much clearer than perhaps it is in other

areas of law and legal study. Despite what some theorists might tell us, law is never

really self-legitimating. This is, of course a somewhat contentious point. But law

does not rest immediately on its own authority no matter how rational or logical

those principles might be. It gains and maintains its legitimacy more by being

grounded in the wider social and cultural practices and traditions of peoples than

by any rational justification of its principles.

There is a clear circularity to saying that a new law is only valid if the body making

it already had law making power. Where did that body get its law making power

from in the first place, and was that a legitimate process? If we go back far enoughin any political system we will usually find that the idea of centralised authority

originates with a violent seizure of power by a group that has physical or military

superiority. For most of the South Pacific countries we need to go no further back

than the initial stages of colonisation by European powers to find this event. It

was the colonising (or invading) powers that defined themselves as being

'legitimate' and set up court systems that recognised themselves in that role. It is

from these structures generally that new post independence constitutions have

been promulgated are said to have been 'lawfully created'.

'Lawful' can of course mean many things. The most common use that we are

concerned with here is where the law of some existing regime acknowledges thecreation of the constitution. In the South Pacific we are mostly concerned with

constitutions which are made with the authority of existing colonial regimes of

political power. Other processes we might brand as unlawful. But this ignores the

fact that sometimes constitutions are brought about not by following any strictly

lawful process (i.e. not one established by existing law) nor by anything which is

unlawful in the sense of contravening existing law. It is rather a process which is

non-lawful; such as where a constitution is formed wholly by popular mandate or

after a successful independence movement a constitution is brought about not by

concession of the former colonizer but as a product of popular will.

In all countries of the USP region except Tokelau, as we have seen, there is awritten constitution and that forms that main part of the constitution of these

countries. So we will look first and in some detail at how written constitutions have

been made lawfully in the region. However in focussing upon written

constitutions we should not forget what we have already learnt; that legislation,

subsidiary legislation, principles of common law, treaties and conventions of

these countries are part of the constitutional makeup of the country. In Tokelau they,

of course form the entirety of the constitution.


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Activity 4.1

1. Using the concept map below, locate where each of the following events

would sit in the map. You can either do this for a country you are familiar

with, or in relation to a ‘typical’ process of colonisation and

decolonisation.

Establishment of a new independent written constitution

First annexation of Pacific island communities by a Europeancolonial government

Legitimisation of colonial governance

Independence struggles within a colony

U n l a w f u l P r o c e s s It is clear enough that the process of establishment of a Constitution for a particular

country could, in its inception and even during its initial period, be the product of

some unlawful process. As we have emphasized elsewhere, what is lawful or

unlawful is to some extent a matter of the perspective from which the matter is

pursued. From the point of view of an established colonial regime for example,

being a regime which professes some established legitimacy and authority, anindependence movement however widely supported by indigenous


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peoples and however popular even with settlers, would be regarded as

unlawful when it mounts some direct challenge to the authority and sovereignty

of the colonial regime within the country in question. That independence

movement might establish a constitution which it holds up in opposition to

continuing authority of the colonial power. But later the colonial power might

withdraw and concede to the independence movement. The once unlawfulconstitution might thereafter acquire legitimacy as the constitution of a newly

founded country.

Likewise there are circumstances where a dictator or usurper has by some

illegitimate act seized power and overthrown an existing constitutional regime. The

act is clearly illegal but the dictator or usurper remains in power supported, say, by

military or other forces. It might well be that the new regime remains in power for

some time by the use of force or repressive terror tactics. Situations such as this

are unfortunately all too common. But after some time the new and originally

illegitimate regime might gain legitimacy on the basis that people come to accept

it. We will examine the legal aspects of this political process in more detail in topic

6.

The events we have witnessed in Fiji during the last few years are a case in point.The 1997 Constitution has been purportedly abrogated by the President followingthe 2009 Court of Appeal decision which had ruled against the legitimacy of theinterim government that had been in place since 2006. (Read Corrin & Paterson,Introduction to South Pacific Law, (3rd ed., 2011), 98-100)

T h e d o c t r i n e o f n e c e s s i t y Another more common situation that emerges in times of political upheaval is

that existing power holders may find it necessary to take extraordinary actions to

restore order. The action that they take may not be of a nature that would

normally be considered constitutionally valid, but if they take the action in

circumstances of national emergency and for the purpose of restoring the rule of

law under the constitution the courts may be prepared to overlook the technical

defects in the greater interests of national stability.

When this happens the courts may have to consider whether such acts are valid,

and the courts are assisted in this question by the doctrine of necessity which

permits validation of such acts provided:

The technically irregular act was done for the purpose of restoring order

and ultimately the rule of law; and The irregular actions taken were no more than was necessary in all of the

circumstances.Sometimes the application of the doctrine of necessity is contemplated in thewritten constitution itself which may give extraordinary powers to the head of stateto suspend normal constitutional processes during times of upheaval. This will beconsidered in other topics as well.


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Activity 4.2

In this regard read the judgment in Republic of Fiji v Prasad. Or read theshortened extract provided with your readings for this topic

http://www.paclii.org/fj/cases/FJCA/2001/2.html

Return to the concept map “The cycle of political legitimacy” again and thistime use it to try to locate where in the map the following events in Fiji may fit

in. You may find you go around the cycle more than once, cycles are like that!

Fiji is a good case study for this exercise because it seems to be cycling so fast.

The establishment of the 1997 Constitution;

The 2000 coup, and the outcome in Prasad’s case;

and the 2006 coup;

The court cases in 2008 and 2009 concerning the coup; and

The Presidents abrogation of the constitution in 2009.

Be aware as you do this of course that this suggested cycle is only one way of

looking at the process, and it is very much a simplification. Its purpose is not to

suggest that history is necessarily circular or inevitable in any way, but more to

demonstrate how ‘legitimacy’ of a system of governance is a very much a

function of wider political events. It is also intended to show you that the need to

establish legitimacy tends to follow upheaval, and stability may eventually give

way to renewed pressures for change, renewed upheavals and a need to

reconsider the legitimacy issue all over again.

You could if you wish try to design your own concept map for tracking this process

and share with your fellow students on the discussion board.1. Historical

events leading to

new

concentrations of

power

2. Process of

legitimisation ofnew systems of

central power

4. New

instability,

impetus for

change

3. Stabilisation,

normalisation of

existing system

of governance

Unsuccessful

attempt at

legitimisation

http://www.paclii.org/fj/cases/FJCA/2001/2.htmlhttp://www.paclii.org/fj/cases/FJCA/2001/2.htmlhttp://www.paclii.org/fj/cases/FJCA/2001/2.htmlhttp://www.paclii.org/fj/cases/FJCA/2001/2.htmlhttp://www.paclii.org/fj/cases/FJCA/2001/2.htmlhttp://www.paclii.org/fj/cases/FJCA/2001/2.htmlhttp://www.paclii.org/fj/cases/FJCA/2001/2.html


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W r i t t e n C o n s t i t u t i o n In all countries in the USP region except Tokelau a written constitution has been

brought into existence. In some of these countries this has been done on more

than one occasion: Fiji in 1966, 1970, 1990, 1997 and 2013, Kiribati in 1975and

1979, Solomon Islands in 1974 and 1978, and Tuvalu in 1975, 1978 and 1986.

The exact manner in which a written Constitution has been made in each country

naturally differs or has differed from one country to another, and also from one

occasion to another. Always, however, the law (e.g. of the former colonial power)

provides for some person or specific body who is authorised to enact the written

Constitution. Sometimes the law has also required that the Constitution as

enacted must be approved by the electorate or a chiefly or customary group or some

combination of these. We will consider both of these aspects.

E n a c t m e n t o f a W r i t t e n C o n s t i t u t i o n In practice, one usually seeks to establish the existence of some existing or

established body with political power or authority to create a new written

constitution. Lawyers usually look to clothe the process of constitution making

with some aura of legitimacy - perhaps using legitimacy in the strict sense of

lawfulness (the word is derived from the Latin word for `law').

In the colonial situation such as pertained in the Pacific region that has never

been too hard to do given that most of the constitutions have been established by

the formal legal act of a colonial authority rather say, by plebiscite of the people

at large. However, in practice this has left some lingering problems which we will

refer to later on. The indefinite and uncertain status of customary authority asagainst introduced law is certainly one of them.

P e r s o n o r b o d y a u t h o r i s e d t o e n a c t w r i t t e n C o n s t i t u t i o n In all countries of the USP region there has been a body authorised to enact a

written Constitution. When countries were under the control of another `colonial'

country, as all countries of the region were at one time, then usually the only

body that had legal authority to enact a written constitution for the dependent

country, was the legislature of the controlling country. This legislature could, if it

felt appropriate, authorise another body such as the executive government to doso. When countries become independent, the Colonial legislatures transferred

legal authority to enact a constitution, and also legal authority to establish another

body, such as a Constitutional Convention, to enact a constitution if it so wished.

In effect there are four bodies which have had legal authority to draft a written

Constitution in the USP region.

The legislature of a controlling country.

The executive government of a controlling country.

The legislature of an independent country.

Constitution convention or assembly which has been established by alegislature.


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One can see examples of each of these bodies in the USP region.

Types of bodies charged with powers to draft

new constitutions

Legislature

of a

controlling

country

Executivegovernment of

a controlling

country

Legislatureof an

independent

country

A special body such as

Constitutional

Convention

Early stage of colonisation: total political control by controlling

country

When a country is under the legal control of another country the controlling country

may be reluctant to allow for the enactment of a written Constitution for the

controlled country, lest that should appear to give it a degree of autonomy or

independence that was greater than the controlling country intended. Accordingly,

the constitution of most controlled countries is provided for by legislation or

subsidiary legislation of the controlling country. Most often this is not called a

constitution and not conceded status as such. For example, for many years the

British colonies of Fiji was regulated by the British Government in the name of

the Queen. The British colony of Gilbert and Ellice Islands (subsequently Kiribati

and Tuvalu respectively) was regulated by the Gilbert and Ellice Islands Order1915 issued by the British Government in the name of the Queen. The British

Solomon Islands Protectorate was regulated by the Pacific Order 1893 issued by

the British Government in the name of the Queen.

Likewise for many years the Cook Islands, including Niue, were regulated by the

Cook Islands Act 1915, and Samoa was regulated by the Samoa Act 1921, both

enacted by the New Zealand Parliament, whilst Nauru was regulated by the

Nauru Act 1965 enacted by the Australian Parliament.


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Early stage of colonisation

British Parliament

Solomon

Islands

Protectorate

Pacific Order

1893

Gilbert and Ellice

Islands under the

Gilbert and Ellice

Islands Order 1915

Fiji

Regulated by

British

government

New Zealand parliament

Cook Islands,including Niue,

regulated by the

Cook Islands Act

1915, and

Samoa wasregulated

by the

Samoa Act

1921,

Australian

parliament

Nauru Act

1965

Once, however, it is accepted by the controlling country that the dependentcountry is moving towards self-governance or full independence, and then the

controlling country will move into the next developmental stage. The establishment

of local legislatures and possibly local constitutions that are still ultimately

controlled by the controlling country.


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Developmental stage; moves towards self-governance

Before granting independence to dependent countries, the controlling powers

often provided for the establishment of a local legislature. Usually these legislatures

had powers that were limited by the controlling country, usually did not include the

power to make a new constitution and they were subject to being overruled by the

controlling country.

Where there is a dependent constitution in this sense, the legislature of a

dependent country, as it advances towards self government, is usually given some

powers by the controlling country to amend or repeal some of the provisions of

the existing written constitution that the controlling country has enacted. This is

especially so where these are regard as matters of lesser importance. Then the

New Zealand Constitution (Amendment) Act 1857, enacted by the British

Parliament, provided that the New Zealand Parliament had authority "to suspend

or repeal all or any of the provision of the New Zealand Constitution Act 1852,

enacted by the British Parliament except 21 sections that were specifically

reserved. This was also the case in the Australian colonies which graduallydeveloped independent legislatures on the responsible government model in

incremental fashion over the period of the nineteenth century.

This did not happen however with written Constitutions that were enacted by

controlling countries in the South Pacific region for dependent countries i.e. Fiji,

Gilbert Islands, British Solomon Islands and Tuvalu. No power was given by the

British Parliament or by the Privy Council to amend a repeal any provision of the

written constitutions enacted by the Fiji (Constitution) Order 1966, Gilbert

Islands Order 1975; British Solomon lands (Constitution) Order 1974, the Tuvalu

Order 1975.

Preparations for independence

C o n s u l t a t i o n w i t h t h e C o n t r o l l e d C o u n t r y

Although, as we have seen, the written Constitutions of Fiji 1966 and 1970, Kiribati

1975 hand 1979, Solomon Islands 1974 and 1978, Tuvalu 1975 and 1979 were

formally enacted by the British Privy Council, and the written Constitution of

Cook Islands and Niue were finally enacted by the Parliament of New

Zealand, this did not mean that there was no consultation between the controlling

country and the dependent country as to what the written Constitutions should

contain. The impression is often created in contemporary post-independence politics, that constitutions for the former colonials or some of them, were, in

effect, forced down the throats of the local peoples without any consultation

whatever. That is not entirely true although the lingering question is whether the

consultation in question was adequate and whether the constitutions which were

produced are reflective of local circumstances conditions and cultural values

(which are genuine outpourings of local conditions are called autochthonous

constitutions).

The British practice was to send out ministerial delegations to the dependent

country to have initial discussions on the spot and then to convene a finalConstitutional Conference in London to finalise the recommendations to be given


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to the Commonwealth Office for development of the text of a written

Constitution. This was the procedure that was followed with the Fiji Constitution

of 1966 and 1970, the Kiribati Constitutions of 1975 and 1979, the Solomon Islands

Constitution of 1974 and 1978, and the Tuvalu Constitution of 1975 and1978.

New Zealand did not follow that practice with regard to Cook Islands and Niue.Instead it sent to each country an official commission which consulted with the

leaders of the country and produced a report with recommendation had a draft

constitution. This report was then considered by a select committee of the New

Zealand Parliament, and comments were permitted from Cook Islands and from

Niueans in New Zealand (where in fact most reside), after which the constitution

was enacted. It has been argued that the consultation by the commission in the

Cook Islands was not broad enough, and this is one of the ongoing issues to

which we adverted above. See Ghai Y, Constitution Making and Decolonisation.

In New Hebrides, Britain and France originally intended to submit recommendation

from the Council of Ministers of the so-called Government of National Unity,which they would use as the basis for jointly preparing a written constitution for

the country. But the Council of Ministers instead appointed a Constitutional

Planning Committee which, under the supervision of a British and a French legal

expert, prepared a written Constitution for approval by the British and French

ministers. After some amendments, particularly at the request of the French, to

increase the power of the President and to establish regional councils in Santo and

Tanna, the Constitution was then accepted by the British and French Governments

by an exchange of letter on 23 October 1979, and it was agreed that it would come

into force at a date to be fixed in 1980:

P r e p a r a t i o n o f p r o p o s a l s f o r a w r i t t e n C o n s t i t u t i o n

Whenever discussions are being undertaken with a view to seeking agreement on

a complex matter it is often helpful to have a written proposal, or draft, to start from

and to use as the basis for further discussion. This has been part of the practice in

the development of constitutions as well. This proposal provides the starting point

for the discussion, but it can also have a determining impact on the final output.

Put another way well prepared proposals may influence the decisions that are

finally made as to the terms of a written Constitution.

The British did not usually prepare proposals for written constitutions for itsdependent territories, except on particularly difficult issues. In the case of New

Hebrides, however, the British and French governments had invited the Council

of Ministers to prepare (draft ) written Constitution, for their consideration,

However it was developed instead by a Constitutional Planning Committee of New

Hebrideans, comprising some members of the Representative Assembly and some

rulers of the community. New Zealand governments preferred, as a matter of

foreign policy, that the person commissioned to make recommendations about the

Constitution of the Cook Islands and Niue prepare a complete draft constitution of

consideration.


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P r e p a r a t i o n o f t e x t o f w r i t t e n C o n s t i t u t i o n

Once agreement has been reached after the consultations, it is necessary then to

prepare a text for a written constitution in appropriate language for to be established

formally as a law of such fundamental importance. In the case of Fiji Constitution

1966 and 1970, Kiribati Constitution 1975 and 1979, Solomon Islands 1974 and

1978 and Tuvalu 1975 and 1978 the preparation of the text was undertaken bylegal experts at the Commonwealth Office. By this time, the Commonwealth

Office had had to deal with, a number of written Constitutions for dependent

countries which were achieving independence, and the legal drafts person in the

Commonwealth Office had built up a great store of expertise and skill in the

changing of written Constitutions. On the other hand the Constitution of Kiribati

1979 was drafted by CK E who had also drafted the Constitution of Papua New

Guinea.

New Zealand did not have such an accumulation of experience in drafting

constitutions, but it relied upon the skills of the persons who were commissioned

to make recommendations, and to prepare drafts of, the Constitution of CookIslands and Niue.

C o n s t i t u t i o n a l A d v i s e r s

When a written Constitution is being contemplated that will transform a country

from a dependency to an independent country there is some argument for saying

that expert advise should be obtained to explain fully the implication and

ramifications of various possible alterations that may be being considered.

Accordingly, the British Government arranged to provide a constitutional

advisers for that leaders of Kiribati and Tuvalu in 978 and 1979 (Professor David

Murray,) and a constitutional adviser for the leader of Solomon Islands in 1978

(Professor Yash Ghai).

The British Government and the French Government each provided a constitution

expert (Professor Yash Ghai and Professor Charles Zanglule) for the leaders of

the New Hebrides in 1979. The New Zealand Government provided a three man

team of experts Professor CC Aikman, Professor JW Davidson and Mr. J B

Wright) to advise the New Zealand government after consultations with leaders

of the Cook Islands, and the New Zealand appointed Professor A. Quentin-Beater

to advise the leaders for Niue. Australia also provided a constitutional adviser for

Nauru in 1968 and a constitutional adviser Professor Yash Ghai, for Papua New

Guinea in 1974-5.

Normally be willing to accept that a written constitution should be valid for the

dependent country as providing the basis for self-governance or independence. At

this stage, the controlling country has three opinions

(a) it could enact a constitution for the controlled country; or

(b) it could authorise the controlled country to enact a written constitution of

its own legislature, such as that presently exists; or

(c) it could authorise the establishment in the controlled country of a

Constitutional Convention.


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For countries in the USP region it has been option (a) which has been pursued;

that is, the government of controlling country has enacted a written constitution

for the controlled country. Partly this was for practical and political reason;

namely, so that it could keep a closer control over what was being included in the

constitution.

Accordingly, the written Constitution for the colony of Fiji in 1966, that of thecolony of Gilbert Islands in 1975, that of the colony of Tuvalu in 1975 and for the

protectorate of British Solomon Islands in 1974 were all enacted by he British

legislature. Under British law both parliament and the Privy Council (i.e. in fact

the Queen with the advice of the Privy Council), have legal authority to make

laws for overseas dependencies. However, in the case of a protectorate it is

usually the Privy Council that makes laws, including constitutions for overseas

territories, at least those which are not British settlements. This is because it is

administratively so much easier and more convenient. Also some meetings of the

Privy Council do not permit debates and are not open to the public, such that the

arrangements and agreements that have been made with the leaders of overseas

territories are not exposed to discussion in public.

Accordingly, all the written Constitution of British dependencies were enacted by

order, of the Privy Council - See Fiji (Constitution) Order 1966, Gilbert Islands

Order 1975 Solomon Islands Order 1974 and Tuvalu Orders 1975. So also when

British dependencies were conceded full independence, the Constitution

providing for their independence was so created - See Independence Order 1970

(Fiji), Kiribati Independence Orders 1979 Solomon Islands Independence Order

1978 and Tuvalu Independence Order 1978.

The written constitution for the condominium territory of New Hebrides was

enacted by an exchange of letters on 23 October 1979 between the former jointcolonial rulers under the condominium, British and France, agreeing to give the

force of law to a written Constitution on a day to be fixed in 1980. This provided

the basis for the independent nation of Vanuatu.

The written Constitution for Cook Islands, excluding Niue, which were legally part

of New Zealand, was enacted by the New Zealand Parliament in 1965, and likewise

the Constitution of Niue was enacted by the New Zealand Parliament in

1974. See - Cook Islands Act 1964, Cook Islands Amended Act 1965 and Niue

Act 1974.

For the Constitutions that were to provide for the independence of Nauru and

Samoa, however, and also Papua New Guinea, Australia (for Nauru and PNG)and New Zealand (as regards Samoa) were prepared to pass legislation

authorising a Constitutional Convention to be established in these countries. The

Conventions were given power to enact a written Constitution, so that the

Constitution could fully reflect the wishes and values for the people to these

countries - see later. So also in Marshall Islands, the American legislature was

willing to allow Constitutional Convention to be established to enact a written

Constitution that was acceptable to Marshall Islanders - see later.

T r a n s i t i o n t o f u l l i n d e p e n d e n c e

Once a country becomes independent, however, it has full legal authority to enacta written constitution and repeal the existing written constitution. It has normally


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two options: (a) either to enact the written Constitutions by its own legislature, or

(b) to establish a constitutional convention with powers to do so. Usually it chooses

the former option, because it is administratively more simple and convenient, and

financially less expensive. Thus the written Constitution enacted in Fiji in 1990 and

the extensive amendments to it in 1997 and 1998 were enacted by the President and

the Parliament of Fiji, which were the legislature of Fiji at these times.The written Constitution for Tonga enacted in 1875 was enacted by King Tupou I

with the approval of an assembly or fakataha or chiefs which was the established

process of law-making; at that time. The written constitution enacted for Tuvalu

in 1986, after it achieved independence, was enacted by the legislature of Tuvalu.

Early stage ofcolonisation: total

political control, no

local legislature, no

local constitution

Developmental stage;

Controlling country establishes

a subordinate legislature and

constitution, that can still be

overruled by the controlling

country

C o n s t i t u t i o n Although an act of the legislature is an administratively convenient and

financially inexpensive means of enacting a written constitution, it does have the

disadvantage that it may be, or maybe seen to be, insufficiently representative of

all sections of the community. For example, amendments proposed for the 1997

Constitution of Fiji Islands by the Chaudhry government in early 2000 were seen

by many as merely advantage seeking or self-serving. Some sections of the

community of that country argue that the 1997 Constitution itself is not

representative. Likewise with some arguments advanced recently in SolomonIslands.

For this reason frequently the legislature of a country will arrange for consultations

to be undertaken with the public. This was done with the Fiji Constitution

of 1990: a draft Constitution was prepared in 1988 by the government set up

after the military coups in 1987. Then an advisory committee was appointed to trial

throughout the country to obtain comments about the draft Constitution, and certain

amendments were made to the draft following the committee's report. The Fiji

Constitution of 1998 was the result of even more comprehensive consultation: a

three person commission of inquiry was set up which undertook: consultations,

both inside Fiji and outside the country, and its


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very comprehensive report and recommendations were used as the basis for the

Constitution that came into force in 1998.

In Tuvalu, prior to Parliaments enactment of the 1986 Constitution, a select

committee of Parliament was appointed to receive submissions from the public and

also from island councils:

There are few details available about the consultations that were undertaken

before the enactment of the Constitution of Tonga in 1875 by King Tupou I. It

seems that the preparation of the Constitution was undertaken mainly by Rev.

Shirley Baker, a Methodist missionary who was an informal adviser to the King,

and that he used an earlier constitution of Hawaii as a model. It also appears that

he consulted the premier of New South Wales, the consul-general of Hawaii, and

a legal firm in New Zealand, but there is very little evidence of consultation

within Tonga itself.

S p e c i a l C o n s t i t u t i o n - m a k i n g B o d y Although the legislature of the controlling country and of an independent

country has certain practical and financial advantages as the body to enact a

written Constitution, it has certain disadvantages. In particular, its members may

be, or may be considered to be, too limited in number, and/or not sufficiently

representative of the opinions and values of all members of the community, and

or too much dominated by party politics, to be appropriate for enacting a law which

is as fundamental as a written constitution. A written constitution affects all

members of the community, and so a legislature may not be seen to have a

sufficiently broad base of community support.

Accordingly in some countries of the USP region, the controlling country hasagreed to the written constitution that provides for the constitution of the country

to be enacted by a special Constitutional Assembly. This was the method that

Australia authorised to be adopted in the case of both Papua New Guinea and

Nauru. New Zealand authorised the establishment of a Constitution Convention

to enact the independence Constitutions of Samoa in 1960 and the United States

allowed for a Constitutional Convention to enact the Constitution of Marshall

Islands in 1979.

In the case of Nauru and Samoa the Constitutional Convention included members

of the legislature, and members of the community from outside. On the other

hand, the Constitutional Assembly of Papua New Guinea was, in effect, theLegislative Assembly with a different name.


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Early stage of

colonisation: total

political control, no

local legislature, no

local constitution

Developmental stage;Controlling country establishes

a subordinate legislature and

constitution, that can still be

overruled by the controlling

country

Full independence,

Controlling country grants

full independence and anew

independent constitution

and legislature is established

Adoption of newconstitution by newly

independent country:

first parliament afterindependence,

referendum, or general

election

Activity 4.3

Refer to the excellent online resource: “ Movement toward independence in the South Pacific: a digital archive of legislation, orders, treaties and related documents”, available

at: http://www.usp.ac.fj/index.php?id=12228

This provides access to the specific enactments that were the stepping stones to

independence for many of the countries in the South Pacific region.

Choose a country and construct a flow diagram that cites the names and brief effect

of the various enactments that paved the way for a fully independent constitution

for that country. You can fill in the flow diagram (the cascading model) below or

you can create your own model.

http://www.usp.ac.fj/index.php?id=12228http://www.usp.ac.fj/index.php?id=12228http://www.usp.ac.fj/index.php?id=12228http://www.usp.ac.fj/index.php?id=12228


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Early stage of

colonisation:

Relevant enactments:

Their effect:

Developmental stage;


Their effect:

Full independence,


Their effect:

Adoption of new

consttituion

Relevant enactments:Their effect:

A p p r o v e d b y t h e E l e c t o r a t e In some parts of the world, especially in Europe, it is widely felt that no matter

whether a written constitution is made by a legislative or by a special

constitution-making body it should be submitted to the electorate for approval,

what is often described as a plebiscite or a referendum. This is a very important

part of the ‘legitimation’ of a new constitutional order.

There are arguments for and against referendum. In favour, is the argument that

in a written Constitution there are so many provisions of fundamental and far-

reaching importance that every adult prior should be allowed an opportunity to

say whether or not it is acceptable? The argument against is that most people will

usually vote without having read the relevant constitution, and without properly

understanding it. Thus what their vote, whether in favour or against the

Constitution, is largely uninformed and worth very little.


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A more accurate and meaningful gauge of public opinion about a proposed

constitution, according to some, is a general election in which the Constitution itself

has been a significant issue. A general election might, however, be a very limited

gauge of public opinion because, for example, members of the public might vote

without any exact knowledge of the detailed constitution, and their votes may be

cast for reasons quite irrelevant to the proposed constitution. Nevertheless this was what British governments generally preferred to a

referendum in the colonials situations. Accordingly, general elections were

provided for by the British administration in Kiribati in 1978 before the final

negotiations about the Constitutions in 1978, in Solomon Islands in 1976, before

the negotiations leading to the Constitution in 1978, and in Tuvalu in 1977 before

the making of the Constitution of that country in 1978, and in New Hebrides also

general elections were held by the condominium government in 1979, before the

drafting of the constitution.

Only in Fiji, was there no general election administered by Britain before the

enactment of the independence Constitution, largely for fear that this wouldinflame Fijian - Indian sentiments and antipathies and destroy the agreement that

had been reached between the two leaders of the major parties. In Cook Islands, a

general election was administered by New Zealand before putting into force the

Constitution that had been enacted in 1964, and the results of that election did

indeed required some important changes to be made to the Constitution by the

Constitution Amendment Act 1965.


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K e y T e r m s Make sure you understand clearly the following terms used in the text. Use the

online law dictionaries if need be.

Referendum /Plebiscite : A poll of all eligible voters usually aimed at

demonstrating voter acceptance of a new

constitutional proposal.

Abrogation Usually refers to actions which have the effect

of ending the efficacy of a constitution. Whilst

this can be done lawfully, the term is more often

used to refer to unlawful abrogation.

Electorate A word for the collection of voters usually

within a defined geographic area who are

eligible to vote.

Constitutional convention Can have two meanings, the first is an

established set of constitutional practices that

help to add to constitutional law and practice.

The second sense (used in this topic) is a

specialised body of persons set up for the

purpose of considering proposals for

constitutional change.

Condominium The name used to refer to the joint British andFrench administration of the New Hebrides

(now Vanuatu).

Enactment A generic term for legal documents that

establish law such as proclamations, orders in

council, legislation and constitutions.

Autochthonous In the context of constitutional law

autochthonous constitutions are those which

have largely grown inside the country itself (a

home grown constitution)


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Documents

Topic 4 - Notes.pdf