1. Reforming the Fundamental Law Constitutional change and community education Cheryl Saunders

2. The topic  Varied to include community participation in constitutional change  And (largely) to exclude minor change…  Thus understood, varies over time and between traditions  In our time affected by: Attitudes to elected representatives Diversity within states Possibilities of information technology Occasional involvement of the international community

3. Overview  Three questions: Why should the community participate? When should they participate? And how?  The spectrum of constitutional change: from initial conception to implementation

4. Why should the community participate? Symbolic reasons  linked to the nature of a Constitution as fundamental law in the sense that it: Provides the foundation for the system of government and law Is (intended to be) lasting Overrides other laws  Popular sovereignty as a (fragile?) explanation for the authority of a Constitution Practice supplements theory

5. Why? (2) Functional reasons  Facilitate change Changes better informed; more responsive Counter tendency of “normal” institutions to cater to own interests May provide catalyst for change Early involvement may underpin later support  Further the goals of the Constitution An informed civil society Acceptance of the key elements of the constitutional settlement, as a basis for peaceful co-existence

6. When should participation occur?  The phases of constitutional change Pre-constitutional Agenda setting Design and writing Approval Implementation

7. Pre-constitutional  Relevant where a Constitution is a response to conflict Eg Bougainville, Cambodia, Nepal  Peace agreement may predetermine constitutional questions  Community participation difficult, if not impossible, at this stage  Role of the international community Negative and positive

8. Agenda setting  Important matters determined at this stage: Scope of change Essential features of change Process, including community involvement  How agendas are set Terms of reference for an expert body Ambiguous authority of a representative body  The difficulty (but importance) of community participation

9. Design and writing  A creative phase, within set parameters  Two broad choices: An appointed (usually expert) body An elected or representative body  Legislature or  Constitutional/constituent Assembly Implications of choice for approval phases Mixing and matching design options Opportunities for public participation

10. Final approval  Brings Constitution into effect as law  May not be a distinct phase, if Constitution written by a representative body  Likely to involve a process different from that for ordinary law-making  May involve a referendum  (Generally) a much less creative phase  Implications for public participation

11. Implementation  The range of matters that require attention once a constitutional change is in place Legislation Appointments Judicial review Practice generally  The relevance of continuing participation/information Ownership of (quasi) constitutional rules Vigilance of civil society

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

13. Pros, cons & techniques Representation  Opportunities for community involvement  Distinguishing constitutional change from ordinary law- making Direct interaction  Providing the opportunity  Engaging interest  Active, rather than passive Responding to draft proposals Mock deliberation Engaging civil society

14. Pros, cons & techniques (2) A requirement to participate  Electing a Convention Problems of representation Problems of mandate But captures attention  Popular vote Non-binding plebiscite Binding referendum Problems of turn-out; majority A blunt instrument The challenge of information

15. Information and education  The CCF experience Public interest Public trust Public understanding  Requirements: Quality of information, in all respects Tailored to audiences Conveyed in multiple forms and ways Opportunities for active engagement