How important is participatory constitution-making? lessons from Timor-Leste and Bougainville

Abstract

How can fragmented or divided post-conflict societies best be accommodated and adjust to state structures in order to achieve sustainable peace? Reflecting on the contrary experiences of Timor-Leste and Bougainville, an autonomous region of Papua New Guinea, this article argues the answer to this question rests partly on the role that participatory constitution-making can play in state-building, nation-building and peace-building. Constitution-making can play a central role in state-building, because constitutions provide the operating system that establishes state institutions and regulates state power. It can also play a nation-building role by defining the political bond between the people, and a peace-building role by encouraging reconciliation and embedding state institutions in society. This article draws on liberal political theory to argue that public participation in constitution-making can enhance the likelihood that the constitution produces legitimate and effective state institutions, generates a unifying sense of national identity and establishes sustainable peace. It finds that extensive public participation in Bougainville played a positive role by creating a sense of common identity, reconciling many of the most severe societal divisions and creating institutions that are relatively legitimate and effective. In contrast, minimal public participation in Timor-Leste meant that the constitution-making process did not play a positive role; it did not create a unifying national identity, left certain societal divisions unreconciled and exacerbated others, and created institutions that were largely illegitimate and ineffective.