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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Autochthonous Constitutions

Peter C Oliver

Constitutional interpretation — Form and substance of constitution — Principles and objectives of constitutions — Types of constitutions — Comparative constitutional law

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Definition

1.  ‘Autochthony’ refers to the fact that a constitution is, legally speaking, ‘home grown’ or rooted in native soil. By this it is meant that the constitution owes its validity and authority to local legal factors, rather than to the fact of enactment by a foreign legal process (Wheare 89). Autochthony was especially important to countries which achieved independence from the former British Empire (colonization; decolonization).

B.  Evolution of the Concept

2.  As originally set out by KC Wheare, constitutional autochthony required that there be no legal continuity between the formerly supreme institutions of the foreign (imperial) power and the newly independent constitution (Wheare 94). That is, a break in legal continuity was thought to be a necessary condition of autochthony.

3.  According to Kenneth Robinson’s alternative understanding (Robinson (1961)), which emerged quickly on the heels of the Wheare version, this first definition of autochthony was too narrow. On Robinson’s understanding, autochthony turned on whether the constitution was ‘home made’ in terms of its content, and independent in the sense that its future interpretation and amendment were determined irreversibly and exclusively by local legal processes (Robinson (1961)) (interpretation of constitutions; amendment or revision of constitutions). According to this conception, a break in legal continuity was a sufficient but not necessary condition of autochthony. In the 1960s, one author noted that the emphasis on a break in legal continuity, where followed, resulted in ‘an insecure foundation in law’ (Roberts-Wray 292).

4.  According to a still later and highly influential account (Marshall (1971) 57–58), the existence of different understandings of autochthony was accepted rather than resisted. Geoffrey Marshall identified three possible criteria for constitutional autochthony (Marshall (1971) 58–60). The first criterion turned on whether legal continuity with the external power had been broken in the enactment of the new constitution; this was effectively the original Wheare definition. A second, quite different criterion asked whether all processes for implementing constitutional change were locally operated. A third alternative criterion attempted to gauge whether the people—or possibly the courts—‘regard the constitution as authoritative because of their own acceptance of it’ (Marshall (1971) 60). Robinson’s understanding can be linked to the second and third criteria.

5.  On Marshall’s account, the conceptual confusion lay in the fact that the word ‘rooted’, as in ‘rooted in native soil’, could be used in at least three different ways: historical, legal, and sociological. Historically, it might be true to say that the constitution of a former British colony had its origin in an enactment of the United Kingdom Parliament (‘Westminster Parliament’)—ie an independence act. However, according to Marshall it could not be assumed, for this reason alone, that the legal root was the same as the historical root. Despite the existence of a link on the historical account, the legal link would be cut if the Westminster Parliament successfully disabled itself from legislating for the newly independent country, or if the local courts refused to heed such legislation regardless of what the Westminster Parliament intended (Marshall (1971) 61). For this reason, legal continuity could not be viewed as synonymous with an absence of autochthony. As Marshall affirmed, it was surely a confusion to associate continuity between the old and new legal systems with subordination of the new constitution to the old regime. The key factor was whether, legally speaking, ‘the new constitutional situation [is] irreversible and alterable only by the modes of formal amendment embodied in the new constitutional instrument’ (Marshall (1971) 63). This was his second criteria helpfully embellished. However, in the end Marshall concluded that autochthony is ‘a vivid but ambiguous metaphor, itself best explained metaphorically’. One could then speak of the autochthonous desire of ‘a child of the Mother Parliament simultaneously to cut the umbilical cord and to deny that it has ever existed’ (Marshall (1971) 64). This usage was closer to the third, more sociological criterion.

6.  In conclusion, regarding the evolution of the concept, it may be necessary to retain all three of Marshall’s conceptions of autochthony in order to reflect legal usage of the term. It is clear, for instance, that many people in Commonwealth countries such as Ireland, India, and Pakistan believed that the quality of their constitutional independence turned on the existence of some sort of break in legal continuity. This is Marshall’s first sense of autochthony, and that of which Wheare was writing in 1960.

7.  Roberts-Wray and others identified the legal insecurity which this first sense of autochthony could engender (Roberts-Wray 292). Furthermore, Robinson had explained, with reference to Ghana, that an autochthonous constitution in Marshall’s second sense (ie that ‘the new constitutional situation [is] irreversible and alterable only by the modes of formal amendment embodied in the new constitutional instrument’ (Marshall (1971) 64)) was possible even though legal continuity was maintained (Robinson).

8.  Whether a country had truly achieved constitutional autochthony in either the first or the second sense, in the third sense it was also possible to speak more figuratively of degrees of autochthony. For instance, even if a country achieved its independence by means of legal continuity—thereby missing out on autochthony in the first sense—it would still be possible to say that that country’s constitution contained autochthonous elements in that it was, for example, drafted by local representatives, preceded by a preamble invoking local sources, and amendable by the people voting in a referendum. In this way, de Smith (de Smith (1964) 297) could allude to the fact that the Nigerian Constitution displayed ‘[a]n autochthonous flavour’, in that the preamble referred to the fact that ‘the people of Nigeria’ gave to themselves a constitution.

9.  As noted below, preoccupation with constitutional autochthony emerged largely in response to certain dominant theoretical currents. Over time, the more inflexible elements of those theories were broken down, and constitutional observers came to believe that constitutional continuity and constitutional independence were not incompatible choices, but instead simultaneously achievable (Oliver (2005)). Accordingly, constitutional autochthony is not the controversial issue that it once was, although observers may continue to assess relative degrees of autochthony.

C.  Theoretical Sources of Constitutional Autochthony

10.  It can be said without exaggeration that preoccupations with constitutional autochthony grew out of the perceived constraints of the theoretical approaches of two of the most influential constitutional and jurisprudential thinkers of the twentieth century, AV Dicey and Hans Kelsen. The dominant readings of both of these thinkers seemed to lead to the conclusion that true independence could only be arrived at by creating some sort of breach in legal continuity with the former imperial power. Why was this so?

1.  AV Dicey

11.  One of Dicey’s most important intellectual achievements was his restatement of the nature of parliamentary sovereignty (Dicey (1885)), at a time when the growing demand for increasing Irish autonomy was the dominant political issue of the day. Dicey’s restatement of the doctrine of parliamentary sovereignty consisted of two well-known aspects—effectively two sides of a single coin—and one further corollary. It is the corollary which will be of greatest relevance to this discussion.

12.  The first, positive aspect of Dicey’s parliamentary sovereignty was the rule that Parliament could make any law whatever (Dicey (1959) 41). The flipside of this was the second aspect, stated in negative terms: no institution—notably no court—could override or set aside the legislation of Parliament (Dicey (1959) 41). Dicey’s theory had gained ‘general assent’ by the turn of the last century (Marshall (2003) 42; Oliver (2005) 56). Applied to the British Empire, one can appreciate that this doctrine of parliamentary sovereignty lent force to the imperial legal system and to its supreme legislator, the Westminster Parliament (Oliver (2005) 56).

13.  However, it was a corollary to Dicey’s theory that was most relevant where constitutional autochthony is concerned. This is the idea that no parliament can bind a future parliament (Dicey (1959) 67–68), for to assume otherwise would be to accept that the Westminster Parliament’s sovereignty was not absolute, a contradiction in terms in Dicey’s eyes. Of course, if no parliament could bind a future parliament, then as a matter of strict law the parliament which granted independence—or the means of acquiring such independence—could always change its mind and reassert its authority in the supposedly independent territory. And any court which acknowledged the well-known doctrine of parliamentary sovereignty would therefore have to heed the Westminster Parliament once again. On this account, true independence seemed unavoidably precarious (Oliver (2005) 58–59). Constitutional conventions provided a counterweight against this occurring (Marshall (1984) 201–202), but in strict law it was hard to deny the independence-threatening proposition.

14.  It was most likely for this reason that the Statute of Westminster, 1931 (‘Statute’) empowered dominions to legislate fully, but did not attempt the impossible—in the Dicey view—in limiting the Westminster Parliament’s ongoing power to legislate for the dominions. Section 4 of the Statute set out new requirements for dominion request and consent where Westminster Parliament legislation extending to a dominion was concerned, but, as the Judicial Committee of the Privy Council acknowledged, ‘the Imperial Parliament could, as a matter of abstract law, repeal or disregard s 4’ (British Coal Corporation v The King (1935) 516). Political realities might be quite different, of course, but lawyers and politicians discussing how independence might be achieved also naturally worried about ‘abstract’, strict, or formal law.

15.  It is easy to see why many constitutional experts across the Empire came to the conclusion that the only way to get out from under the vestigial, if unlikely, possibility of unwanted and unrequested Westminster legislation for their legal system was to identify or if necessary create a break in legal continuity. Even Dicey’s foremost apologist wrote, in a widely read article published in the 1950s, that apparently law-abiding attempts in independence legislation to limit the Westminster Parliament’s future legislative powers in the newly independent territory were legally futile. The ‘elaborate legal dress’ of such independence legislation served only to disguise ‘the naked fact of revolution’ (Wade 191). It was in this British and Commonwealth intellectual climate that Wheare first wrote about constitutional autochthony.

2.  Hans Kelsen

16.  Whereas Dicey was in many ways a practical lawyer, concerned with issues such as Irish Home Rule and the merits and demerits of administrative law and judicial review, Kelsen set out to provide a general theory of law and legal systems. For Kelsen, the normativity of a given rule in a legal system was not a matter of its fidelity to natural law; rather, its normative force was a function of the fact that it could be traced back through a ‘chain of validity’ to ‘some constitution that is the first historically’. The validity of this first constitution was in turn dependent on the Grundnorm, or basic norm: ‘[t]hat the first constitution is a binding legal norm is presupposed, and the formulation of the presupposition is the basic norm [Grundnorm] of this legal order’ (Kelsen 22).

17.  Regarding the problem of independence, the Grundnorm had a potentially liberating effect. Once independence-seeking countries could acquire their own Grundnorm, they would be free of the authority of the Westminster Parliament. However, if as a result of respect for legal and constitutional rules in the independence process all norms in the local legal system could be traced back to the United Kingdom (UK), then it was difficult to see how such a scrupulously legal process could ever separate local legal systems from the UK, or former imperial, legal system (Finnis 52). According to Kelsen, ‘the state and its legal order remain the same only so long as the constitution is intact or changed according to its own provisions’ (Kelsen 219).

18.  Kelsen’s theory of a legal system was found to be quite useful in justifying the fact that a revolution or coup d’état had successfully imposed a new legal order by virtue of having violated the provisions of the previous constitutional regime. But, what of legal systems which wished to achieve independence by means of scrupulous respect for the rule of law? How could they explain how their legal systems were separate and distinct from the British legal system, post-independence? Kelsen’s theory appeared to work in the wrong direction; it seemed to make respect for the rule of law determinative of continued membership in the British legal system.

3.  Summary

19.  By way of summary, at the midpoint of the twentieth century, astute constitutional observers could be forgiven for assuming that, on the dominant Dicey account, the Westminster Parliament’s ongoing power to legislate as it wished could not in strict law be limited; and that, on the Kelsen account, even if Westminster Parliament-enacted independence legislation could be made to work in terms of understandings of parliamentary sovereignty, the very process of proper constitutional change would result in the perpetuation of the original imperial legal system. It is perhaps easier to see what prompted searches for constitutional autochthony when one considers this sort of intellectual climate.

20.  As we shall see, both further experience with lawful independence processes, and further and better understandings of parliamentary sovereignty and basic norms later in the twentieth century resulted in declining interest in constitutional autochthony.

D.  Early Examples of Constitutional Autochthony

1.  Ireland

21.  The first example of constitutional autochthony cited by Wheare was Ireland, or the Irish Free State as it was then known. The framers of the 1922 Constitution of the Irish Free State did not use the term ‘autochthony’, but as Wheare tells the story they firmly believed that ‘they were acting on behalf of an independent republic and that the constitution which they drew up obtained force of law through the approval of the representatives of the people’ (the Third Dáil Eireann) (Wheare 90). The preamble to the Constitution of the Irish Free State Act, which these representatives passed on 25 October 1922, conveyed the point in the following terms:

Dáil Eireann sitting as a Constituent Assembly in the Provisional Parliament, acknowledging that all lawful authority comes from God to the people and in confidence that the [n]ational life and unity of Ireland shall be thus restored, hereby proclaims the establishment of the Irish Free State (otherwise called Saorstat Eireann) and in the exercise of undoubted right, decrees and enacts as follows …

22.  That was the Irish perspective. However, the UK government at the time took the view that the power to establish the Irish Free State and give it a valid and authoritative constitution resided solely in the sovereign UK Parliament at Westminster. On 5 December 1922, an Act to Provide for the Constitution of the Irish Free State completed its passage through the Westminster Parliament. Its phrasing betrayed this different perspective—namely, that the Irish Constituent Assembly had been constituted as a ‘House of Parliament’, not Dáil Eireann (‘Dáil’); that its authority came from a prior enactment of the Westminster Parliament (the Irish Free State (Agreement) Act 1922); and that the deliberations of the Constituent Assembly were directed to agreeing upon but not enacting a constitution. From the UK perspective, the Constituent Assembly had no power to enact a constitution because it had not been authorized to do so under the Irish Free State (Agreement) Act 1922. All that the Westminster Parliament had done was to help prepare a Constitution, in accordance with the practice which had already been followed in, for example, Canada, Australia, and South Africa. UK Prime Minister Lloyd George confirmed as much in introducing the Irish Free State Constitution Bill: ‘[h]ere we are going to follow the example which has been set in the framing of every constitution throughout the Empire. The constitution is drafted and decided by the Dominion, the Imperial Parliament taking such steps as may be necessary to legalise these decisions’ (quoted in Wheare 91–92). This difference in Irish and UK perspectives persisted throughout the history of the Irish Free State and was reflected in opinions of, respectively, the Irish Supreme Court (The State (Ryan) v Lennon (1935) (Ir)) and the Judicial Committee of the Privy Council (Moore v The Attorney-General for the Irish Free State (1935) 497 (Privy Council)).

23.  This difference in perspective was persistent and irreconcilable; however, it was rendered moot when the Constitution of the Irish Free State of 1922 was superseded in 1937 by the Constitution of Eire, the latter having been created with great care in order to ensure that it unquestionably deserved the more modern descriptor ‘constitutional autochthony’. Briefly, the first draft of this new constitution, which had been prepared the Irish government (led by Éamon de Valera), was presented to the Dáil, but was not enacted by it. The Dáil was simply invited to discuss the draft, amend it as need be, approve it, but go no further. The new draft was then put before the people in a referendum, and their approval constituted enactment of the new constitution. As Wheare relates, ‘[i]t was thus impossible to argue that the constitution obtained force of law through the authority of the Dáil which in turn had got its authority from the Statute of Westminster and the Irish Free State Constitution Act, 1922—both acts of Parliament of the [UK]’ (Wheare 94). On the contrary, the new constitution was an act of the Irish people.

24.  As Wheare observes, both from the Irish perspective and from the UK perspective regarding the Constitution of the Irish Free State, the enactment of the 1937 constitution (Constitution of Ireland: 29 December 1937 (Ir)) caused a break in legal continuity (Wheare 94).

2.  India and Pakistan

25.  India and Pakistan have also attempted to achieve constitutional autochthony, inspired to a considerable extent by the Irish model.

26.  When India obtained independence in 1947, it was arranged that, until a new constitution could be drawn up, India should continue to be governed under the Government of India Act 1935 (as adapted to India’s new status). Subsection 8(1) of the Indian Independence Act 1947 (an enactment of the Westminster Parliament) provided that the legislature of each of India and Pakistan should, for the purpose of making constitutions, be exercisable in the first instance by a Constituent Assembly.

27.  It was uncontroversial, then, that in India’s case from 1947 until 1950, when a new Constitution for India came into effect (Constitution of the Republic of India: 26 January 1950 (India)), the country was still governed by constitutional rules which owed their validity to the Westminster Parliament, in particular the above-mentioned statutes. Pakistan was in a similar position from 1947 until its new constitution came into force in 1956 (Wheare 95). It is the status of these new constitutions which is of interest in this discussion of constitutional autochthony.

28.  As with Ireland, the key to both stories was the Constituent Assembly. It is important to remember that, whereas the Irish Constitution purported to have been enacted by the Irish people voting in referendum, under the terms of constitutional arrangements for India and Pakistan, it was clear that it was the Constituent Assembly which was doing the enacting. Thus far, legal continuity rather than constitutional autochthony seemed to apply. However, there was a question as to whether an enactment of the Constituent Assembly required the assent of the Governor-General as a matter of law. If the answer was yes, and the Constitution was nonetheless deemed valid, then a break in continuity would have occurred and a new, independent Grundnorm established.

29.  In 1955, the Federal Court of Pakistan ruled that the Governor-General’s assent was legally required. That was the law of Pakistan, but it was not necessarily the law of India. If the same rule applied in India, then the Indian Constitution was constitutionally autochthonous; it could be said to draw its validity and authority from the Indian people—invoked in the preamble—and from the Constituent Assembly itself. According to Wheare, it was this latter account of which Indian political actors wished in any event to take hold (Wheare 98). In the case of Pakistan, events overtook these more rarified considerations of constitutional autochthony. A constitution was approved in 1956, but later abrogated following a coup d’état in 1958. A new constitution was promulgated in 1962; by that time, any constitutional link to the Westminster Parliament was long lost.

3.  Tendencies Regarding More Recent Commonwealth Independence Processes

30.  As Roberts-Wray noted, with the Indian and Pakistani models in mind, autochthony based on technical breaks in legal continuity produced ‘an insecure foundation in law’, with no guarantee of local courts overlooking the autochthony-directed irregularities (Roberts-Wray 292). Robinson pointed out that, while Ghana had availed itself of many of the devices employed in Ireland, India, and Pakistan, Ghana had erred on the side of respect for prescribed legal forms, with the result that legal continuity nonetheless endured (Robinson). And yet, by all appearance, independence had been achieved. Perhaps, as Robinson and later Marshall pointed out, it was a mistake to assume that legal continuity meant ongoing subordination, especially where the interpretation and amendment of the constitution were now under local control (Robinson; Marshall (1971) 63).

31.  It was perhaps this growing sense of the fragility and futility of constitutional autochthony—at least in the Wheare sense—that resulted in independence legislation taking on a much more direct and immediate form. Instead of staging independence through UK legislation, local constituent assemblies, and doubtful procedures designed to ensure constitutional autochthony, the new tendency was simply to set out the pre-agreed constitution in Westminster-enacted legislation and to declare therein that no Act of the Parliament of the UK thereafter passed should extend or be deemed to extend to the newly independent country as part of the law of that country. The Nigeria Independence Act of 1960 was one such model, subsequently followed by many other nations (Marshall 62). A wide range of measures could be adopted to provide independence constitutions with autochthonous emphasis, in terms of the wording of the constitution, and legitimacy—invocations of the people—but in strict law autochthony appeared to have ‘little point and uncertain meaning’ (Marshall (1971) 63).

32.  From at least the early 1960s, the assumption was that independence legislation could achieve its purpose. In other words, it was also assumed that, if ever the Westminster Parliament attempted to exercise some vestigial legislative power to govern the newly independent territory, the local courts would find a way to ignore such legislation and to confirm a new, local Grundnorm (Ssekandi; Marshall (1957) 101–102; Marshall (1971) 63). However, if the Westminster Parliament was a continuing sovereign—following Dicey—and if legal continuity was respected—following Kelsen—then was it not still difficult to explain independence in legal terms? As it happened, new insights in legal and constitutional theory helped to explain in detailed form that which non-experts rightly assumed to be a matter of fact.

E.  New Theoretical Insights and Their Effect on Understandings of Constitutional Autochthony

33.  Beginning in 1961, HLA Hart re-examined the nature and logic of the ultimate rule of the UK (and imperial) legal system: the rule regarding the sovereignty of the Westminster Parliament. He noted that parliamentary sovereignty could be understood in two quite different but equal coherent ways. The first, which Hart called ‘continuing sovereignty’, had already been explored by Dicey. The second, which Hart called ‘self-embracing sovereignty’, was familiar to constitutional lawyers who had observed the analogous process of constitutional amendment, but was new to many British and Commonwealth lawyers. Essentially, ‘self-embracing’ sovereignty involved the idea that the sovereign parliament could enact any law whatever, including a law limiting that parliament’s powers. It is easy to see how this idea could assist the independence process and the objectives of constitutional autochthony. If parliament could simultaneously validate the new constitution and remove itself from the legal system for subsequent purposes, then both legal continuity and constitutional autochthony (according to Marshall’s second criterion) could be achieved. Hart noted in 1961 that the weight of British legal opinion was on the side of ‘continuing sovereignty’, but it was open to lawyers and judges in newly independent territories to take a different ‘self-embracing’ view (Ssekandi; Oliver (2005)).

34.  At about the same time, the Danish scholar Alf Ross was reconsidering Kelsen’s Grundnorm. Ross observed that when a constitutional amending formula was used to amend itself, the logic of Kelsen’s theory meant that the first, supposedly superseded amending formula was still part of the legal system and available for subsequent use. Given that this confounded all legal expectations, Ross concluded—in a move reminiscent of Wade’s ‘disguised revolution’ discussed above—that amendment of the amending formula was not a constitutional change, or a change that could be related back to the basic norm, but rather a ‘magical act’ (Ross (1958) 81). In 1964, Hart joined issue with Ross (Hart (1964)), and by 1969 Ross had revised his view (Ross (1969)). He no longer viewed amendment of the amendment formula as a ‘magical act’, provided that the Grundnorm was reimagined not just as adherence to the first constitution and its amending formula, but as adherence to the first constitution and its amending formula ‘or to any subsequent amendment procedure derived from and replacing that procedure’ (Ross (1969) 21).

35.  The significance of Hart’s and Ross’s insights was that they provided a coherent logical–legal account for that which lawyers and laypeople were increasingly taking for granted: that is, that the ‘amending formula’ at the moment of independence—enactment by the Westminster Parliament—could be used simultaneously to validate a new constitution and domestic amending formula, and to irreversibly terminate the Westminster Parliament’s powers in that new legal system, at least from the perspective of the newly independent legal system and its officials (Ssekandi; Oliver (2005) 296). Writing in 1973, John Finnis further solidified the legal credibility of this approach by identifying what he referred to as a principle of continuity, shared by most legal systems, which he phrased in the following terms: ‘[a] law once validly brought into being in accordance with the criteria of validity then in force, remains valid until either it expires according to its own terms or terms implied at its creation, or it is repealed in accordance with conditions of repeal in force at the time of repeal’ (Finnis (1973) 63, emphasis in original).

F.  Constitutional Autochthony Today

36.  Despite the removal of considerable legal–logical barriers, as noted above, constitutional autochthony remains a concern in some quarters. For example, when Australia, Canada, and New Zealand acquired the final pieces of their constitutional independence in the 1980s, some constitutional lawyers in those countries expressed worries regarding whether the constitution was truly rooted in local soil. Some in New Zealand, for example, held onto the Dicey version of continuing parliamentary sovereignty, leading them to conclude that New Zealand independence turned on a ‘disguised revolution’ (Brookfield 169; Oliver (2005) 200). Some in Australia preferred an account of independence and constitutional validity which aligned with popular, rather than Westminster Parliament’s, sovereignty. The alternative account was made available by an independence process involving both the UK Australia Act and the Australian Australia Acts 1986, and by the fact that Australians had approved their original constitution in plebiscites almost 100 years earlier, and continued to participate in the constitutional amendment process through referendums (Dillon; Sue v Hill (1999) (Austl); Oliver (2005) Chapter 9–10). In Canada, the Supreme Court of Canada (‘SCC’) seemed to validate an account based on the newer theoretical insights. As late as 1981, the SCC recognized that the Westminster Parliament—the general amendment procedure for the Canadian Constitution as preserved by the Statute of Westminster 1931—retained ‘unimpaired’ or ‘undiminished’ powers to legislate for Canada (Patriation Reference 801). And yet, one year later following the enactment by the Westminster Parliament of the Canada Act 1982, the SCC stated that ‘The [Constitution] is now in force. Its legality is neither challenged nor assailable. It contains a new procedure for amending the Constitution of Canada which entirely replaces the old one ...’ (Quebec Veto Reference 806). This seemed to confirm that legal continuity and full independence were achievable in one package. Some in Canada would have preferred an Irish style constitutional novation grounded in popular ratification (Oliver (2005) 155 et seq.). However, the Canadian consensus was in favour of respect for the rule of law, even if that meant running the ‘old machinery’ one more time.

37.  The trend today seems to be in favour of maintaining legal continuity where possible, even if that means retaining a legal link to a now-discredited constitutional past. After 1989, former Soviet Bloc countries could have thrown out Soviet-era constitutions, but many preferred to amend those constitutions thereby putting in place newer more acceptable provisions, all the while signalling ongoing respect for the rule of law (Gönenç 122). South Africa opted for legal continuity even as it drew a line between apartheid and a post-apartheid future (Klug). These countries seemed to accept that legal continuity was no obstacle to new beginnings. Autochthonous concerns were dealt with not by breaks in legal continuity, but by means such as new flags, constituent assemblies, and opportunities for local and popular input.

38.  It would not be proper to finish an extract on the idea of constitutions ‘rooted in their own soil’ without observing that that soil often contained and continues to contain indigenous constitutions, and that these are almost always ignored in the telling of the story of constitutional autochthony (Oliver (2005) 106). Constitutional autochthony is clearly a story about colonialization (imperial–colonial) and de-colonialization. It would be a shame if, in attempting to understand that important story, another story of colonization (settler–indigenous) and decolonization was overlooked. Better still would be a form of constitutional theory which is based not on hierarchical relationships of empire and colony, sovereign and subject, etc., but on contemporary understandings of sovereignty and power based on consent, mutual recognition, and continuity (Oliver (2003); Tully 122).

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