Oceanic currents: Constitutional developments in the Pacific

Anna Dziedzic

Melbourne Law School

For this Symposium, the IACL Blog editors asked contributors to report on constitutional developments across geographical regions. This request – and my attempt to respond with an overview of current constitutional issues in the Pacific region – prompted reflection on the meaning and value of ‘thinking regionally’ in comparative constitutional law.

In other work, I have explained the connections between Pacific Island states in terms of shared characteristics: of smallness, islandness and the status of most as developing states. Some Pacific scholars, however, understand the connectedness of the Pacific peoples, lands, seas and oceans in a different way. Epeli Hau’ofa describes the Pacific region not as ‘islands in a far sea’, but as a ‘sea of islands’; of peoples who do not live separately on remote islands, but who are connected across time and ocean spaces. Similarly, Tracey Banivanua Mar’s pathbreaking Decolonisation in the Pacific focuses not on territories and nations, but on peoples, ideas and practices flowing through the region. She frames her history with oceanic metaphors, tracing the currents, tempests and churn of decolonisation movements across the Pacific, and their connections with global developments.

Understanding the region in this way presents a challenge for a comparative constitutional scholar from outside the region used to focusing her inquiry at the level of national constitutions. However, it does not take much to identify current constitutional developments that resonate regionally. These include the latest wave of constitution making and amendment involving local and external actors (most recently Solomon Islands, Tonga and Tuvalu); the modification of Westminster-style parliamentary systems to better suit the political and cultural contexts in which they operate; and the judicial review of constitutional amendments (a jurisprudence further developed in 2019 in PNG and Vanuatu). I have chosen to frame this short piece around another constitutional issue that manifests in different ways across the Pacific: the issue of sovereignty and self-determination and the difficult but fundamental constitutional questions it raises. 

One kind of expression of self-determination is referendums on independence. In this period, the course of longstanding independence movements across Oceania are culminating in referendums.  In a referendum currently scheduled for October 2019, the people of Bougainville (including diaspora overseas) will vote on whether Bougainville should have ‘independence’ or ‘greater autonomy’ within Papua New Guinea. The commitment to hold a delayed referendum was a critical part of the Bougainville Peace Agreement of 2001, which marked the end of a decade-long conflict. Whatever the outcome of the vote, the referendum will be an important constitutional event for Bougainville and for Papua New Guinea. The implementation of either option will require constitutional changes and new institutional arrangements. The referendum results and their implementation may also provide further impetus for devolution in other parts of Papua New Guinea: several provinces have already obtained some financial and administrative functions pursuant to intergovernmental agreements.

Under the Peace Agreement, in terms reflected in the Constitution of Papua New Guinea, both levels of government are bound to consult over the results of the referendum, and the outcome is subject to ratification by the national Parliament. Leaders from the Papua New Guinea and Bougainville governments have reiterated their commitment to jointly negotiate the outcome that is put to the Papua New Guinea Parliament, in the spirit of the Peace Agreement and the ‘Melanesian way’ of consultation. The overriding concern is to continue the peace that has held in Bougainville since 2001. To this end, reconciliations between ex-combatants in Bougainville continue, as well as negotiations between the two levels of government, to ensure that, whatever the result of the referendum, the ensuing negotiating and transition period will be peaceful. This process has however been complicated by delays to the polling period, a mid-term change in the Prime Ministership and ministry of PNG in late May 2019, and the upcoming Bougainville elections in the first half of 2020.

Independence referendums are also on the cards in other parts of the Pacific.  Secession has long been discussed in Chuuk, a state within the Federated States of Micronesia (FSM). A referendum was scheduled for 5 March 2019, but postponed for one year in light of unresolved questions about the legality of secession under the FSM Constitution. Constitutional amendments to permit secession were proposed at Constitutional Conventions in 1990 and 2001, but not agreed out of concern that internal instability would deter foreign investment and complicate FSM’s Compact of Free Association with the United States. Voters in FSM have the opportunity to convoke a periodic constitutional convention in 2020, and if this occurs, it may be that constitutional amendments for secession are again on the table.

The dynamics of self-determination are different in settler states, where Indigenous peoples are in the minority. In November 2018, New Caledonia, a territory of France, held the first of three referendums on independence, which, like Bougainville, were agreed and deferred under a peace agreement. Fifty-seven percent of voters chose to stay a part of France, in a vote polarized along ethnic lines between French settlers (who tend to favour remaining part of France) and Indigenous Kanak peoples (who tend to favour independence). Under the peace agreement, two more referendums will be held before 2022, with some signs that the margin in the votes might narrow over this period.

In an assertion of sovereignty of a different kind, in April 2019, a group of Papuan lawyers, politicians and customary leaders commenced a constitutional challenge to the Indonesian law that established what are now the provinces of Papua and West Papua as part of Indonesia. They argue that the 1969 ‘Act of Free Choice’ – a kind of referendum – breached rights guaranteed under the Indonesian Constitution. The Indonesian Constitutional Court will potentially be placed in the difficult position of being asked to adjudicate a contested site of sovereignty.

Not all assertions of sovereignty are directed to secession. Claims to sovereignty also underlie current advocacy in the region for the meaningful constitutional recognition of Indigenous peoples, as polities within state borders with their own identity, laws and political processes.

The ‘eight united islands’ of Tuvalu are separately governed by Falekaupule – traditional assemblies composed in accordance with the traditional customs and culture of each island. As discussed by Eselealofa Apinelu, a series of judicial decisions in Tuvalu have highlighted fundamental differences between legal and societal understandings of the status of the islands. As Apinelu explains ‘life in Tuvalu is all about the island. Societal culture is anchored in one’s duties, responsibilities and obligations, [which] provide a meaningful Tuvaluan identity’. A constitutional review process undertaken over 2018 proposed that Tuvalu’s Constitution be amended to expressly recognise the functions and authority of the Falekaupule and entrench a role for them in parliamentary processes at the national level. The proposed amendments failed to pass the Tuvalu Parliament in the first half of 2019, but may be reconsidered after elections in September 2019.

Indigenous claims to meaningful constitutional recognition are also a pressing issue in Australia. The historic meeting of the First Nations National Constitutional Convention in May 2017 endorsed the landmark Uluru Statement from the Heart. It called for three structural reforms, summarised as ‘Voice Treaty Truth’:  a First Nations Voice to advise Parliament on Indigenous matters, and a Makarrata Commission to supervise agreement-making between governments and First Nations and truth-telling about Indigenous Australian histories. The call for constitutional change to recognise Indigenous peoples – in this meaningful way – in the Australian Constitution is gathering support. In some parts of the country, Indigenous peoples are seeking other ways of recognising and practising sovereignty: examples include preparations for Treaty negotiations in the state of Victoria, and a movement for regional autonomy for the Torres Strait Islands.

These developments are clearly embedded in their own historical and constitutional contexts. There are, however, Oceanic connections between them. There is a long history – traced by Banivanua Mar and others – of Pan-Pacific solidarity for self-determination movements. Regional organisations, such as the Pacific Islands Forum and the Melanesian Spearhead Group, were created out of regional concerns for decolonisation. Fisher describes how extended clan relationships across national borders have been utilised by the Kanak independence movement for New Caledonia. Several Pacific leaders have advocated for the rights and recognition of Papuan peoples. There is also a flow of constitutional ideas. For example, the arrangements for deferred referendums in New Caledonia were picked up in the Bougainville Peace Agreement; while the Tuvaluan constitutional amendments and the Uluru Statement from the Heart both propose innovative ways to connect local indigenous leaders to national law-making processes and institutions.

It may also be possible to tentatively trace distinctive regional understandings of constitutions and sovereignty. The events traced here all demonstrate respect for written constitutions, evidenced for example in the constitutional entrenchment of the Bougainville Peace Agreement, the respect for the processes of constitutional amendment, and recourse to constitutional courts. However, the ebb and flow of independence, autonomy and recognition movements across the region is one way in which Pacific peoples try to address a disjunction between the vision of a single centralised nation-state expressed in written constitutions and local Indigenous understandings of peoples, place and law. Unresolved questions of sovereignty – what it is, where it resides and how it is manifest – emerge from these deeper currents that underlie Oceanic constitutions as they are lived by their peoples.

Anna Dziedzic, Ph.D, Melbourne Law School, is the co-convenor of Constitution Transformation Network

Suggested citation: Anna Dziedzic, “Oceanic currents: Constitutional developments in the Pacific” IACL-AIDC Blog (17 July 2019) https://blog-iacl-aidc.org/2019globrev/2019/7/17/oceanic-currents-constitutional-developments-in-the-pacific