TOPIC

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?
How do they acquire legitimacy?

The cycle of political legitimacy

1. Historical
events leading to
new
concentrations of
power

4. New
instability,
impetus for
change

2. Process of
legitimisation of
new systems of
central power

3. Stabilisation,
normalisation of
existing system
of governance

Topic 4 concept map

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 briefly
consider 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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Topic Outline
1. Introduction
Exercises 1-3
2. Method for redrafting into plain language
Exercises 3-8
3. Conclusion

Learning Outcomes
Upon successful completion of this topic students will be able to:
Identify the different process involved in the formation of constitutions
especially 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.

Checklist of Activities
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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Lawful Process
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 enough
in 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 the
creation 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 a
written 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 European
colonial government
Legitimisation of colonial governance
Independence struggles within a colony

Unlawful Process
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, an
independence 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 unlawful
constitution 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 following
the 2009 Court of Appeal decision which had ruled against the legitimacy of the
interim government that had been in place since 2006. (Read Corrin & Paterson,
Introduction to South Pacific Law, (3rd ed., 2011), 98-100)

The doctrine of necessity

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 the
written constitution itself which may give extraordinary powers to the head of state
to suspend normal constitutional processes during times of upheaval. This will be
considered 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 the
shortened 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 this
time 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 Prasads 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 of
new systems of
central power

4. New
instability,
impetus for
change

3. Stabilisation,
normalisation of
existing system
of governance
Unsuccessful
attempt at
legitimisation

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Written Constitution
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.

Enactment of a Written Constitution

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 as
against introduced law is certainly one of them.

Person or body authorised to enact written

Constitution
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 do
so. 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 a
legislature.

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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

Executive
government of
a controlling
country

Legislature
of 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 Order
1915 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

Samoa was
regulated
by the
Samoa Act
1921,

Cook Islands,
including Niue,
regulated by the
Cook Islands Act
1915, and

Australian
parliament

Nauru Act
1965

Once, however, it is accepted by the controlling country that the dependent

country 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 gradually
developed 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

Consultation with the Controlled Country
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 final
Constitutional 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 and
1978.
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:

Preparation of proposals for a written Constitution

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 its
dependent 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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Preparation of text of written Constitution

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 by
legal 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 Cook
Islands and Niue.

Constitutional Advisers
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 the
colony 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 joint
colonial 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.

Transition to full independence

Once a country becomes independent, however, it has full legal authority to enact
a 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 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

Constitution
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 Solomon
Islands.
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.

Special Constitution-making Body

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 has
agreed 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, the
Legislative Assembly with a different name.

LW308: Constitutional Law

4.17

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 new
constitution by newly
independent country:
first parliament after
independence,
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.

LW308: Constitutional Law

4.18

Early stage of
colonisation:
Relevant enactments:
Their effect:

Developmental stage;
Relevant enactments:
Their effect:

Full independence,
Relevant enactments:
Their effect:

Adoption of new
consttituion
Relevant enactments:
Their effect:

Approved by the Electorate

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 farreaching 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.

LW308: Constitutional Law

4.19

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 would
inflame 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.

LW308: Constitutional Law

4.20

Key Terms
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 and

French 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)

LW308: Constitutional Law

4.21

LW308: Constitutional Law

4.22