User:Muaddeeb/Templates/Constitutions in the Commonwealth Pacific Islands

right now there are talks of a Pacific Union

but this is unsatisfactory uninteresting and largely unnoticed by most nations in that area of the Pacific, I propose a larger Union of the South Seas

In the West democracy is usually compared with aristocracy and monarchy. Similar comparisons - positive and negative - are made in Tonga, and sometimes by conservative supporters of chiefly authority in Samoa or Fiji. For example, the historian Ian Campbell quotes the King of Tonga 'citing the histories of Spain, Germany and Russia as examples of ruthless tyrannies that had democratic origins, and warning of the dangers of coups d'etat '(Campbell 1989: 92). A pro-democracy movement began in Tonga in 1989, when 'Akilisi Pohiva led a walkout of commoner MPs. It has recently proposed a program for a 'democratic monarchy', with a popularly elected House of Representatives, and a House of Nobles, elected by nobles. The king would appoint a Prime Minister from either house, and would hold a power of veto over legislation, that could be overriden by a joint meeting of both houses (Pacific Islands Monthly June 2002).

However, more and different issues are at stake in other parts of the region, particularly in outer islands and rural areas. There it is the particular form that democracy takes, rather than the principle of 'rule by the people' that is at stake. That form is representative, constitutional and liberal. The second half of the paper considers some problems with these characteristics, and suggests how some arguments from political theory might be relevant to the Pacific islands.

3 Problems with Representative Democracy

3.1 A frequent criticism of representative democracy is that it restricts participation to election campaigns, and allows representatives to live in the capital while ignoring their constituents. This is contrasted with the more participatory style of face- face village meetings, when leaders lived among their followers (and were subject to sanctions, even assassination if they failed to perform). Procedures like referenda, stronger local government and (in Kiribati) the requireme nt that national legislation is considered on outer islands before it is finally voted upon are designed to increase participation. Parliamentary committees that tour the country, holding meetings in every village, are another attempt to increase, or restore, participation.

3.2 Participation can range from simply being informed or consulted, through to forms of local control over policies and public service appointments. Some of the pressure for more federal, decentralised and traditional systems of government in the region comes from a desire for more participation. Yet participation may not extend to everyone, and local government or village meetings may exclude women or young men.

3.3 The political theorist Hanna Pitkin argues that Parliament can `represent' society in three ways: symbolic, statistical, and by acting on behalf of constituents, or the country as a whole.

3.4 In the first, symbolic, sense parliaments do so through their architecture, ritual and procedures. Provisions for Houses of Chiefs, Ariki or Iroij are also representative in this symbolic sense. Arguments about the role (or, in Fiji, race) of the head of state are often about representation in this symbolic sense.

3.5 Second, it may be more or less typical, in a statistical sense, of the society, including people from each region, men as well as women, nobles and commoners, ethnic Indians and ethnic Fijians. Pacific parliaments are often faulted for being unrepresentative in this statistical sense. Few women are elected, in proportion to their numbers in the population. Educated or non- indigenous people or chiefs or 'naturalised citizens' are sometimes over represented in proportion to their numbers. Parliament does not 'look like' the country it represents. Some of PNG's provincial constitutions, for example, required the cooption of women members if none are elected. Or electoral systems are designed, and redesigned, as in Fiji, to achieve particular racial outcomes.

4. Problems with Constitutional Democracy

4.1 The word ‘constitution’ refers to a law setting out the basic framework of government. Often it is entrenched, requiring special majorities, or several sittings of parliament, before it can be changed. Many traditional, ancient and medieval political systems have been based on documents, covenants, agreements or laws. But the modern idea of constitutionalism consists of the idea that power of government should in some way be self- limited. Thus the political scientist Giovanni Sartori defines constitutions as First and above all, instruments of government which limit, restrain and allow for the control of the exercise of political power (1997: 196) 4.2 The original model is the US constitution, with its bill of rights (introduced in 1791), and its architecture of institutional checks and balances. 4.3 Elected politicians everywhere are often frustrated with the constraints on their actions created by constitutions, constitutional officeholders (like the Ombudsmen in Vanuatu or the Auditor General in Samoa) the judiciary and the Opposition. They claim the legitimacy of election and majority rule. 4.4 However there may be a special problem with the type of constitutionalism adopted in the West. It has to do with the assumption that everyone is the same. The Canadian political theorist James Tully is critical of the modern constitutional idea of 'a culturally homogeneous and sovereign people' founding
 * "..an independent and self governing nation state with a set of uniform legal and

representative political institutions in which all citizens are treated equally, whether their association is considered to be a society of individuals, a nation, or a community" (1995: 41)

4.5 Such modern constitutions self consciously set themselves against, and above the irregular 'ancient constitutions' that preceded them, based on custom and tradition. But the break with the past was never complete, and 'hidden constitutions' based on convention persist within modern states.

4.6 In breaking with the past, and assuming homogeneity, Tully argues that modern constitutionalism cannot deal with differences within as well as between states. For an alternative set of constitutional principles, he looks to the margins of the expansion of European states, and at the principles that governed early treaty making between them, and the indigenous people they fought and negotiated with. In this period between contact and colonisation the balance of power was less unequal than it became, and combined and intermediate forms of governance. These early soldiers, traders and explorers were quite aware that the Aboriginal peoples did not have European-style states, representative institutions, formalised legal systems, prisons and independent executives. They observed conciliar and confederal forms of government, consensus decision-making, rule by authority rather than coercion, and customary law (Tully 1995: 121)

4.7 On their side, North American Aboriginal peoples had long traditions of recognising each others' independence, and entering into treaties - traditions into which their early encounters with Europeans could easily fit. From these treaties, and the constitutional debates and court cases they led to, Tully distils three constitutional conventions that, he argues, can be used to accommodate diversity today: - mutual recognition - continuity - consent (Tully 1995: 116)

We could contrast these, for example, with the French revolutionary principles of - liberty - equality - fraternity

4.8 Mutual recognition requires to each side to recognise the continuing, separate, existence of the other. Continuity prevents a sharp or revolutionary break with either side's past way of doing things. Consent requires the agreement of both sides. Such principles were broken in later European efforts to discredit, assimilate and extinguish aboriginal forms of organisation in, say, Australia, though they are being partially reconstructed in the Aboriginal and Torres Strait Islander Commission (ATSIC), and the recognition of continuity of 'native title' in the High Court's Mabo and Wik decisions. They are also being revived in the new centrality given to the Treaty of Waitangi, and biculturalism, in the constitution of New Zealand. But the principles go wider, and Tully goes on to apply them to the claims of Quebec, immigrant minorities, and women.

4.9 Tully also considers liberal concerns with treaty constitutionalism, particularly the fear that 'as the administrative dictatorships over Aboriginal peoples are dismantled, they may leave a class of Aboriginal male elites in power' (1995: 193). He notes that traditional leaderships depended on the continuous consent of their members, and had to rely heavily on consensus. In any case, he argues, Aboriginal communities should be subject to the same principles of mutual recognition, continuity and consent in their internal organisation as they claimed in relation to external authorities.