constitutions

The symbolism of constitutions

Pacific Constitutions. Edited by Peter Sack. 1982. Published by the Law Department, Re search School of Social Scien ces, Australian National Uni versity. ISBN 0 86784 164 8. $A15.00 Constitutionalism is the trust which people repose in the power of words engrossed on paper to keep a government in order. Part of the decolonising process in the insular Pacific is the almost übiquitous ritual of creating and adopting constitu tions based upon European or American models. Attendant on such auspicious occasions is a plethora of commentaries which seek to analyse, com pare, ruminate upon or even eulogise the product, process or consequences of independence constitutions. Pacific Constitu tions is the final product of the Sixth Canberra Law Workshop conducted in 1982 at the Aus tralian National University. This volume includes the experi ences, observations and predic tions of the workshop partici pants, collected in 24 essays.

The cultural message of con stitutionalism is a “sense of inevitability” that the emerg ence from colonialism must mean the creation of nation states which must have con stitutions of one sort or another.

For many of the Pacific islands, the political legitimacy pro duced by constitutions is directly correlated to the legi timacy which produces them, and permits the colonial authority to withdraw with some sense of dignity. This allows the successor govern ment to assume power in a spirit of continuity.

Traditionally constitutional ism meant the “legal domestication of government. ”

It was the result and not the cause of modern rational gov ernment. As a system of pro cedural and substantive rules, the process of drafting a con stitution is also an opportunity to restate the ideals by which a society is to be governed.

The traditional areas of Melanesia were inclined to re

gard constitutions in this latter sense. As legitimating devices, restatements of traditional values, or recognition of them, served as identity references which had often been repudi ated by colonial administra tions, as well as to assure traditional leaders of some rec ognition in the constitutional framework of government.

Whether such sentiment is a demonstration of commitment to tradition, or just wishful thinking, is still an open ques tion.

Interested observers, how ever, have acknowledged that Papua New Guinea is having a difficult time implementing cus tom as the underlying law of the country. This is attributed in part to the fact that expatriates sit on the Supreme and Na tional courts and that the local bar has few native members.

The end result is that the professionals on the bench or at the bar are more inclined to resist the introduction of customary evidence, or the pleading of customary con siderations, in the court of litiga tion.

In Vanuatu, however, the colonial land tenure system was constitutionally discarded in favor of customary ownership, and this represents a singular example of revolutionary change. Only in Tonga and Western Somoa could the traditional leadership “rely on the constitutional structure to play a clearly dominant role at the national level. ” The applica tion of customary practices to the dispute resolution process at the national level is “seriously disadvantaged in public com petition with the serious status of the written word and with the courts trained to apply common law and equity.” The virtual absence of traditional leader ship participation in the drafting of Pacific constitutions is mute testimony to the argument that traditional authority and mod ern constitutionalism as insti tuted by new elite groups are institutionally incompatible.

Though the Tongan and West ern Samoan examples are cases to the contrary, it may be

forthrightly argued that the traditional elites merely permit ted an institutional coexistence, with both custom and constitu tionalism functioning as inde pendent systems. Stated in alternative terms, “the constitu tions of traditional societies in the Pacific . . . were defined by ideals and processes rather than by rules and institutions.

Traditional societies were held together by a network of perso nal relations rather than by a framework of institutionalised structures. It is no wonder, therefore, that the traditional forces in the Pacific do not assert themselves by offering alternative rules and institu tions, but by trying either to manipulate or to ignore the imported Western products.”

The process of drafting con stitutions is rarely a purely auto chthonous procedure. The in fluence of foreign expertise in the drafting of documents has been on many occasions “im perative for constitutional suc cess. ” Such expertise, however, “guides the final document into a shape which is the product of the will of the people con cerned.” The participation of such consultants as J. W.

Davidson in Western Samoa, Nauru, and to some extent in Micronesia, are clear examples of responsible and professional “sensitivity to Pacific societies.”

Indeed, the history of expatriate consultants and advisers in the creation of Pacific constitutions began in earnest with the 1840 constitution of the Hawaiian kingdom, and later with the 1875 constitution of Tonga.

The role of the consultant today has not been confined to the constitutional product alone, but has related also to the process which shapes and formulates the final document.

Whether the process of con stitution-making is one consis ting of examining and reshap ing the drafts, or merely aggregating separately ratified provisions, the consultant has been made critically aware of his “cultural competence” in serving in such a role.

The popular acceptance of constitutions is a critically im portant issue. Perhaps the cen tral factor in this particular re gard is that no group of signifi cant size in the Pacific islands has “felt itself to be fully excluded from the possibility of

gaining government or from having some representatives of its interest in power.” Only in Fiji and Vanuatu do conditions exist for the development of an “out group” since political alle giances are generally deter mined by identification with ethnic groups. It is this latter feature which would be “the most likely threat to the con tinuance of constitutional suc cession. ”

Academic anthologies of parochial subject matter are often the most difficult to read and sometimes almost impossi ble to review. The lack of clearly defined objectives or themes, but more often the lack of discipline among contribu tors in maintaining continuity or cohesion are often the un fortunate causes. Editor Peter Sack and the other experts mobilised for this important workshop have been able to manage this difficult feat.

Almost as important is that the affordability of this volume makes its dissemination in the

Pacific possible.

William

Tagupa.

Books received

Time of Rain.By John Stafford. Pub lished 1984 by Rigby Books, 176 South Creek Road, Dee Why, NSW, 2099, Australia. ISBN 0 7270 2035 8. Price $9.95.

Ella, Ella, Ella. By Bret Harris. Pub lished 1984 by Little Hills Press, P.O.

Box 60, St. Peters, NSW, 2044, Austra lia. ISBN 0 949773 07 7. Price $19.95.

Dangerous Words: Language and Poli tics in the Pacific. Edited by Donald L.

Brenneis and Fred R. Myers. Published 1984 by New York University Press, distributed by Columbia University Press, 562 West 113th Street, New York, NY, 10025, USA.

ISBN 0 8147 1051 4. Price $U545.50 cloth, $U521.50 paper.

The Moon Man: A Biography of Niko lai Miklouho-Maclay. By E. M. Webs ter. Published 1984 by Melbourne Uni versity Press, P.O. Box 278, Carlton South, Vic., 3053, Australia.

ISBN 0 522 84293 3. Price $33.

Shells; A Collector’s Color Guide. By J. & R. Senders. Published 1984 by David & Charles (Publishers) Limited, Brunei House, Newton Abbot, Devon, England. ISBN 0 7153 8497 X. Price $22.50.

Mysteries On The High Seas. By Philip Macdougall. Published 1984 by David & Charles (Publishers) Limited, Brunei House, Newton Abbot, Devon, England.

ISBN 0 7153 8422 8. Price $19.95.

Bread And Roses. By Sonja Davies.

Published 1984 by Australia & New Zealand Book Co. Pty. Ltd., 2/10 Col way Place, Glenfield, Auckland 10, New Zealand. ISBN 0 98620 08 X. Price $16.95.