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Newsletter Issue 8  |  December 2019
This newsletter is published by the Constitution Transformation Network (ConTransNet) based at Melbourne Law School. We are a network of expert scholars sharing our latest research and experiences regarding the development of constitution-making processes, content and implementation.
"Decade in Review: Reflecting on constitution-building in the 2010s"

The decade that is about to end has been a fast-paced time for constitutional transformation. The Arab spring came, went and shows signs of revival. Around 20 states made new constitutions, some more than once. Many more states changed existing constitutions in significant ways. An impression of the rate of activity cannot be gleaned from formal change alone, however. Some processes for change began but were abandoned (Chile) or remain in limbo (Libya). Other changes occurred without altering formal constitutional text through legislation (Bangsamoro Organic Law) or judicial decisions (arguably, the UK, as the pressures of Brexit threw up unusual litigation). The turn to authoritarianism through political action within existing constitutional frameworks may fall within this category as well, if it proves to be lasting.

Halfway through the decade, ConTransNet was formed, not only to monitor individual instances of constitutional change but to examine their collective, systemic implications. Three themes that characterised constitution-building in the 2010s - all of which are the subject of ongoing work by ConTransNet - are discussed in the final CTN blog for 2019.

  Read more  

Australian-ASEAN Women in Constitution-Bulding Capacity Development Program
From 25-29 November 2019, ConTransNet was very pleased to hst the2019 Australia-ASEAN Women in Constitution-Building Capacity Development Program, which was supported by the Australian Government through the Australia-ASEAN Council of the Department of Foreign Affairs and Trade. The Prorgam brought together 8 women from four ASEAN countries.
The Program brought together women advocates and activists from four ASEAN countries - two each from Indonesia, Myanmar, Philippines and Thailand - who have been engaged in democracy building and/or constitution-building in their home countries. The Program aimed to facilitate sharing of experiences across jurisdictions, as well as sharing the expertise of our own ConTransNet team. We have produced a short video, which captures the reflections of our participants on what they learned and its relevance for their own home contexts. 

Our
Course Program was a mix of workshops held at MLS run by our academics as well as practitioners from key institutions in our State, and included field visits to some of these institutions as well. Our opening dinner included High Court Justice Michelle Gordon as our chief guest.  Our participants had the opportunity to visit the Parliament of Victoria, where they had a session with Victorian Attorney General Hon. Jill Hennessy, as well as meeting with two state legislators, Hon. Mary Wooldridge and Hon. Fiona Patten. They also visited the Supreme Court of Victoria, where they engaged in a session run by Supreme Court Justice Melinda Richards. During the week, we were also very pleased to include sessions with the Victorian Solicitor General, Kris Walker, and the Executive Director of the Human Rights Law Centre, Hugh De Kretser, both also MLS alumni.
 
Citizenship in Hybrid Societies and its Relevance for Australian Public Law
Jayani Nadarajalingam, CTN Co-Convenor and Lecturer at Melbourne School of Government, has won seed funding to work with Cheryl Saunders at CTN, as well as Anne Carter (Deakin Law School) and Patrick Emerton (Monash Law School), on a project which combines legal analysis with philosophical theorising to investigate the complexities of citizenship in hybrid societies, including its relevance for Australian constitutional law. Hybrid societies are ones in which the modern state is not the main political actor; instead, it is only one political actor among others and, as a result, does not provide the only (or main) institutional framework within which people live their lives.

The first part of the project will study the theoretical underpinnings of citizenship and legal identity formation in the context of hybrid societies. The second part will put forward a novel account of how Australian public law should understand and engage with citizenship that arises in the context of hybrid societies. The third part of the project constitutes a workshop centred around the themes and questions raised by the first two parts of the project. In doing so, it will bring together scholars and practitioners working on these topics in the Asia Pacific region.
2019 Melbourne Forum on Constitution-Building in Asia and the Pacific: "Inclusion and Participation in Constitution Building Processes"
The 2019 Melbourne Forum was held in Yangon in Myanmar from 21-22 October 2019. The Melbourne Forum is an annual event co-hosted by International IDEA and ConTransNet. This year's Forum brought togther participants from more than ten countries in Asia and the Pacific, to discuss the theme of "Inclusion and Participation in Constitution Building Processes". You can find the biographies of our participants on the Melbourne Forum Community page. We we are now very pleased to share with you the online Report of the fourth Melbourne Forum. The report summarises issues raised in each session. It also includes links to the papers presented during each session. We are still receiving the final few papers and will upload them as they come in.
Paper for Victorian Treaty Advancement Commission on "Matters within Victorian authority potentially negotiable within the Victorian Treaty Process"
On 10 December 2019, the First Peoples' Assembly of Victoria was inaugurated in the Victorian Parliament House. The Assembly was elected by first peoples from across the State of Victoria and will work wih the Victorian Government to prepare for treaty negotiations, including by establishing a negotiation framework, an independent umpire (Treaty Authority), and a fund to support Aboriginal communities during the eventual treaty negotiations.

In advance of the establishment of the Assembly, preparations were managed by the
Victorian Treaty Advancement Commission (VTAC). To support the work of the Assembly, VTAC commissioned a number of papers, which will now be shared with the Assembly to inform their own work. ConTransNet was requested by VTAC to develop a paper identifying the potential powers and matters that are within the jurisdiction of the State of Victoria and that are potentially negotiable within the treaty process
 

Dinesha Samararatne, CTN Co-Convenor, published a paper on "Proposals for a New Bill of Rights in Sri Lanka: Narrow Debates, Unmarked Challenges". Her article makes two claims about the current proposals for reforming Sri Lankan’s fundamental rights chapter. One is that the complex challenges in seeking judicial enforce-ment of fundamental rights remain largely unremarked upon to date. The second is that the transformational reach of the proposals is yet to be evaluated against Sri Lanka’s actual experiences in the enforcement of a Bill of Rights in its republican  era. 

 
Two CTN Co-Convenors published chapters in in a recently published book on Comparative Constitution-Making by Hanna Lerner and David Landau (eds) (Elgar 2019). Cheryl Saunders wrote on "International Involvement in Constitution-Making", exploring both the theory and practice of external engagement in such processes. Will Partlett wrote on "Post-Soviet constitution-making", taking the first comprehensive look at constitution making in 15 post-Soviet countries. The chapter describes how many post-Soviet constitutional orders are driven or at least influenced by a normative belief in the value of centralism which stems from an exceptionalist tradition of ‘centralized state constitutionalism’. 
 
Tom Daly, CTN Co-Convenor and Assistant Director at the Melbourne School of Government, made a submission to the Australian Senate Inquiry into nationhood, national identity and democracy in September 2019. The submission, titled "Toward Democratic Renewal" argued that though the fundamentals of Australia’s democratic system remain robust compared to various comparator democracies worldwide, there remains a pressing need to examine ways to reform Australia’s democratic system to ensure that it is more responsive, representative, and inclusive.
 
CTN Co-Convenor Tom Daly contributed to the the 2018 Global Review of Constitutional Law, which was published online by I-CONnect and the Clough Center on 21 October 2019. Along with three other co-authors, Tom produced a review of "Constitutional Developments in the United Kingdom of Great Britain and Northern Ireland".
 
Cheryl Saunders published an article on "Constitution Making in Asia" in The Chinese Journal of Comparative Law. The article is an introduction to a Symposium on Constitution Making in Asia and the Pacific. It seeks to place constitution-making in Asia in the context of the broader global debate, focusing on the relationship between the local and the global in constitution-making projects. It suggests four sets of factors that deserve consideration in this context: ownership, implementation, accountability, and legitimacy. 
 
Cheryl Saunders published a chapter on "Courts with Constitutional Jurisdiction" in The Cambridge Companion to Comparative Constitutional Law by Roger Masterman and (eds)(Cambridge, CUP, 2019). All courts perform functions of a broadly constitutional kind. In one form or another, courts are likely to be the forum for resolution of that most challenging category of legal disputes: enforcing compliance with law by the institutions of the state itself. This chapter examines the different roles of courts and their significance to rule of law. 
 
Will Partlett has published two ICONnect blogs. In October 2019, he reflected on "Late Soviet Constitutional Supervision: A Model for Central Asian Constitutional Review?", using Uzbekistan as a case study. In November 2019, he wrote about "The Post-Soviet Constitutional Rights Community". The blog reflects on a key factor in the success of post-Soviet constitutionalism, namely, bottom-up pressure from non-governmental, human rights organizations and lawyers.
 
Will Partlett and Mikhail Krasnov published a paper on "Russia’s Non-Transformative Constitutional Founding". The paper reflects on how the post-Soviet Russian Constitution ensured presidential dominance over the legislative branch, which has hindered the realisation of the transformative potential of other parts of the constitution. It suggests that transformative constitutionalism depends as much on the actual process of constitutional foundation as the text of the constitution.
 
Tom Daly published a book review of Wojciech Sadurski's new publication, "Poland’s Constitutional Breakdown" (Oxford University Press, 2019) in the latest edition of the European Constitutional Law Review. The book reviews Poland's constitutional history to offer insights into the current state of constitutionalism in the country. 
Participant: "Cultivating Constitutional Literacy in Asia" workshop

From 10-11 October, Dinesha Samararatne, CTN Co-Convenor, participated in a workshop organised by the Rule of Law Programme Asia, Konrad-Adenauer-Stiftung and the School of Law, Singapore Management University on constitutional literacy. The workshop aimed to interrogate the practice and culture of constitutional literacy in Asia, with reference to lived examples from that region as well as insights from further afield suitable for replication or adaptation.

Presentations on constitutionalism in Sri Lanka 
Dinesha Samararatne, Co-Convenor of CTN, travelled to the University of NSW to participate in two seminars. She presented a paper on "Hybridisation of Sri Lanka’s Writ Jurisdiction" at a workshop on ‘Protecting Rights, Addressing Inequality: Writs as Constitutional Transfer’, convened by UNSW Law School and Konrad Adenauer Stiftung from 15-16 November 2019. She was also a panellist at the launch of ‘The Constitution of Myanmar: A Contextual Analysis’ by Melissa Crouch on 14 November 2019.

Presentations: "Constitutional Resilience in South Asia" workshop

The Centre for Comparative Constitutional Studies and Asian Law Centre at Melbourne Law School, with the Centre for Asian Legal Studies at National University of Singapore and Bonavero Institute of Human Rights of University of Oxford hosted a workshop on "Constitutional Resilience in South Asia" from 4-7 December 2019. CTN Co-Convenors participated, including Dinesha Samararatne who presented a paper on ‘The Sri Lankan Legal Complex and its impact on Constitutional Resilience’ and Jayani Nadaraja-lingham who presented on 'Federalism in Sri Lanka'. Cheryl Saunders and Tom Daly were also discussants on different panels. 

Seminar: "Post-Soviet Transformative Constitutionalism?"
Will Partlett, CTN Co-Convenor, led a seminar at Kings College London on 7 November 2019, as part of their Human Rights, Development and Global Justice Series. His presentation noted that transformative constitutionalism remains largely unrealised in the former Soviet republics, as most post-Soviet states have chosen instead to build centralized presidential regimes, in part becuase they view transformative constitutionalism as a Western concept. In turn, this means that its future prospects in the region hinge on its ability to justify itself better as a method for tackling post-Soviet challenges of the 21st century.
Seminars: "Indigenous Recognition and Treaty-Making"
Cheryl Saunders, CTN Co-Convenor, made two presentations in November on indigenous issues. On 20 November, she spoke on ‘Treaty-making in Australia; the Non-Indigenous Party’ at a conference on Indigenous-State Treaty Making in Australia – Law, History and Politics. On 27 November, she presented on ‘The Significance of Non-Indigenous Recognition for Non-Indigenous Australians' at the 2019 Federal Court of Australia Conference. 

Seminar: "From Global Democratic Decay to Democratic Renewal"

On 14 November, Tom Daly, CTN Co-Convenor, made a presentation to parliamentarians and others at the Victorian Parliament on the topic of ‘From Global Democratic Decay to Democratic Renewal?’. His speech can be watched on video HERE