New York: Cambridge University Press, 2014. xvii, 401 pp. (Maps, tables.) US$99.00, cloth . ISBN 978-1-107-06471-3.
It has happened with such frequency that by now it hardly comes as a surprise. A colonial power turns over the reins of government to a newly created nation. But the nation is not in any real sense of the term a nation at all. It is a haphazardly cobbled together jumble of ethnic groups, religious factions, and cultures. Or a civil war or other upheaval or insurgency causes the boundaries of and membership in a state to be re-determined. But the new determination does little more than reconfigure the rifts that led to strife in the first place. The result, in too many cases, has been a failed state, with the resulting criminality, war, poverty, and displacement that come in the wake of governments unable to govern.
Scholars, lawyers, politicians, and journalists have all tried their hands at proposing solutions to this problem. Lawyers, of course, have looked to the law for answers, recommending the adoption of constitutions that enshrine democratic rule, or support human rights—or the opposite. But states with every sort of constitution have failed. Wallis joins a cluster of scholars who have looked for solutions not in the constitutions themselves but in the processes by which those constitutions are created.
Her thesis is that a more inclusive constitutional drafting process will increase the legitimacy of the constitution and, thus, of the government chosen under its aegis and the laws passed according to its rules. She suggests that a fragmented polity can be unified into one nation by a constitution-making process that educates people broadly on the goals and responsibilities of the constitution makers, seeks out popular input in depth, and includes it in the final product.
This is not a new theory. Wallis follows in the footsteps of quite a number. But one of the signal successes of her book is her thorough and wide-ranging survey of the literature on the topic. Moreover, she draws from the survey an extensive and detailed menu for constitutional planning committees on how best to go about creating a process that includes broad representation and that shows due respect for all segments of the new state. (One pesky irritant in her writing needs to be mentioned: she refers, over and over, to this canon of theoretical work as “the literature,” as in “the literature generally concludes that an appointed body is preferable” [214] or “the literature argues that the manner in which the drafting body makes decisions is influential” [218].)
The central focus of Wallis’ study is her application of the theory to two relatively recent instances of constitution making. Timor Leste and Bougainville each came to their respective constitution-making moments from a recent past that involved an insurgency against, in Timor Leste’s case, the former colonial power, and, in the case of Bougainville, the larger state of which it had been forced to be a part as the colonial power withdrew. Both had also suffered internal clashes, when citizens disagreed, sometimes violently, about the insurgency. Any knowledgeable observer would have ranked both in the states-unlikely-to-succeed category, which made them prime candidates for Wallis’ observation, especially when it turned out that one – Bougainville – has succeeded as a unified nation-state, and the other – Timor Leste – has not. And the icing on Wallis’ theoretical cake: Bougainville followed the recommended participatory process in planning and drafting its constitution; Timor Leste did not.
The “literature” posits a number of rules that constitution makers should follow in order to be as participatory as possible, including: settling on a time frame that is long enough to permit education of and participation by the public; creating a constitutional planning and drafting body that is broadly representational and that doesn’t unduly favour one class or political party or ethnic group; operating as much as possible by consensus rather than by votes, since voting can lead a large but dissatisfied minority never to accept the constitution or, by extension, the new state; being as transparent about processes and goals as possible, while maintaining the secrecy needed to achieve compromises; staging frequent meetings, at the beginning, middle, and near the end of the planning process, all around the country, and letting the meetings go as long as needed; limiting the influence and perceived roles of international bodies and advisors; and, finally, choosing a manner of adoption of the constitution that appears fair and representative.
Needless to say, the constitutional planning process in Bougainville satisfied each and every one of these criteria; that of Timor Leste failed them all. While Bougainvilleans initially hoped to draft the constitution in a matter of months, they permitted the time frame to lengthen when it became evident that committee members were finding rich sources of information in their lengthy, unstructured meetings with local leaders, women’s groups, union representatives, and other members of Bougainville’s diverse communities. The process in Timor Leste, however, was heavily regulated by the United Nations’ Transitional Administration in East Timor, which set a very short time frame that allocated very little time for public education or public meetings. The two countries differed radically, also, in the composition of the constitutional bodies: Bougainville’s was appointed, and the different groups that had to agree on the appointments created a broadly representative committee made up of all the different factions; Time Leste’s was elected and therefore was overwhelmingly captured by the majority political party. I needn’t continue—although Wallis does, and in interesting and provocative detail.
I am not sure she is correct. Two examples do not prove a theory. She might just be lucky in the two she chose. But her choices are instructive, and regardless of whether it is always true that a more participatory process will lead to a stronger state, the arguments she makes for participation are compelling in and of themselves.
Jean G. Zorn
The City University of New York, New York, USA
pp. 947-949