Unstable Constitutionalism—Law and Politics in South Asia

The age of comparative constitutional law is upon us. In the last decade, the number of English-language monographs on the study of comparative constitutions has increased five-fold. This “renaissance”1 of comparative law has also borne witness to the migration of research agendas from the well-traversed terrains of the “usual suspects”2 to new frontiers in Asia,3 Eastern Europe,4 and Latin America5 as scholars venture from the study of established liberal democracies to new6 and fragile7 ones. A significant voice in this chorus of new scholarship is Mark Tushnet and Madhav Khosla’s edited collection of essays on South Asia. As the world’s largest democracy, India is regularly featured in the research agendas of comparative scholars.8 But in Unstable Constitutionalism, Tushnet and Khosla have brought together eleven additional country experts to critically examine and contextualize the constitutional experiments in five South Asian countries: Bangladesh, India, Nepal, Pakistan, and Sri Lanka. This bold project not only illuminates how the Indian experience has permeated the constitutional discourse throughout its region but also underscores the interaction of law and politics in the construction of constitutional doctrines.9 In the Introduction (Chapter 1), Tushnet and Khosla unpack the term “unstable constitutionalism,” which they refer to as “a phenomenon in which all participants in national politics appear to be sincerely committed to the idea of constitutionalism—if not always a fully liberal constitutionalism, then certainly one that hopes to establish reasonably permanent institutions with the capacity to address issues of daily governance—yet they struggle to settle on a stable institutional structure embodying a form of constitutionalism appropriate to their nation” (at 5). Sujit Choudhry (Chapter 2) proceeds by challenging scholars to integrate the analysis of judgments with constitutional politics, and demonstrates this by exploring India’s basic structure doctrine and its reservations based on caste. Part 2 of the book focuses on the forms and sources of instability in South Asia. Mara Malagodi (Chapter 3) attributes Nepal’s instability to “the country’s historical difficulties in secularizing political authority and entrenching the doctrine of popular sovereignty at the constitutional level” (at 46) while Mahendra Lawoti (Chapter 4) blames “identity politics.” (at 86). Mohammad Waseem (Chapter 5) identifies three forms of instability in Pakistan: the military, federal-state tensions, and the “sharia tization of the state” (at 125) while Osama Siddique (Chapter 6) analyzes how the judiciary in Pakistan has contributed to the country’s instability. M. Jashim Ali Chowdhury (Chapter 7 on Bangladesh) concludes Part 2 by emphasizing how the armed forces have derailed free and fair elections regularly in this young nation. Part 3 of this book focuses on how the political and judicial branches of government have responded to the instability in their respective countries. Pratap Bhanu Mehta (Chapter 8) explains that the Indian Supreme Court is better conceived as an “actor in a democratic negotiation” (at 258) rather than a common law court that makes its decisions based on text and precedent. Ridwanul Hoque (Chapter 9) highlights the multiple instances in Bangladesh where its Supreme Court invalidated “unconstitutional” constitutional amendments in defense of the country’s democratic order. Rohan Edrisinha (Chapter 10) contrasts Sri Lanka’s and Nepal’s experiments with federal constitutional reform and concludes that there has been an excessive focus on federalism as “self-rule” rather than federalism as “shared rule” in both nations. Critiquing reformist arguments in the constitutional reform debate in Sri Lanka, Asanga Welikala (Chapter 11) presents an “alternative analytical, normative, and structural” (at 353) dimension to the debate. The last chapter of Part 3 (Chapter 12) and the book, written by Sudhir Krishnaswamy, critically reviews three categories of federalism cases (the federal distribution of powers, the relationship between the Union and the states, and the creation of new states) in the Indian Supreme Court. By focusing on these categories, Krishnaswamy situates “doctrinal debates within a wider political theory” (at 380) of federalism. Two major themes emerge in this excellent collection of essays that we would like to discuss more fully. The first relates to the judicial deployment of the basic structure doctrine in South Asia and the second pertains to federalism. As contributors to this volume have convincingly shown, the basic structure doctrine has been judicially conceived or applied as a safeguard against legislative worst-case scenarios where the political incumbents (or the military) in South Asia abuse the amendment process to introduce constitutional amendments that erode democratic values.10 But for all its merits, one must also admit that the introduction of the basic structure doctrine into any constitutional landscape would open up the possibility of judicial overreach. For example, in India, even after the end of the controversial Indira Gandhi administration and the country’s transition to a dynamic democracy, the Supreme Court has continued to invoke the basic structure doctrine to invalidate constitutional amendments passed by its parliament. Its most recent invocation was in 2015 when the Supreme Court voided a constitutional amendment that revamped appointments to the higher judiciary—judges would be appointed by a six-member National Judicial Appointments Commission (chaired by the chief justice), in lieu of the prior judge-led collegium where the judges themselves had near-complete control over the process. It is not self-evident why this constitutional amendment was a significant threat to democratic values, especially since this six-member Commission would have had three Supreme Court judges, including the chief justice. It is also not clear why the Court chose to ignore the range of interpretative remedies (falling short of a strike-down) at its disposal11 —the government’s failure to argue for such alternative constitutional remedies is a tenuous justification at best. The existence of a “hyper-executive” in government, where executive and legislative power is concentrated in the hands of one party/coalition, may allow for constitutional changes to be made without the general public’s approval or ratification. In such circumstances, the invalidation of the impugned constitutional amendments may seem less like a unilateral and indefensible arrogation of power by an unaccountable branch of government. This may explain Choudhry’s and Hoque’s sympathies for the application of the basic structure doctrine in India (at 25–29) and Bangladesh (at 277–285), respectively. Nevertheless, while such constitutional amendments may not necessarily have any popular mandate, the judicial power to invalidate constitutional amendments passed in these circumstances should still be exercised most sparingly. In light of the live dangers associated with the aggressive judicial enforcement of a nebulous and arguably limitless implied basic structure doctrine, it is our view that for such malleable constitutions, judges may interfere with the substance of the amendment only when its passage would substantially destroy the pre-existing constitution, i.e., the constitutional change in question must be manifestly unreasonable.12 With regard to malleable constitutions, we are referring to constitutions that are easily amended, taking into account any of the states’ political realities where the dominant executive/legislature may have control over the amending process. On the other hand, the South Asian experience with the basic structure should not be transposed to constitutions that are especially rigid, e.g. contemporary South Korea and Taiwan. After the 2005 constitutional reforms in Taiwan, a constitutional amendment can only be passed if it receives the support of a super-majority of parliamentarians in the Legislative Yuan and is approved by voters at a referendum.13 It is likewise in South Korea, under the current 1987 Constitution.14 The super-majoritarian support for an amendment (in a jurisdiction with a rigid constitution) lends legitimacy to the constitutional change not merely because of the sheer numbers in its favor but because the process of revision requires the exhaustion of considerable political energy and time that ensures careful deliberation by the separate political branches of the government and the public’s intention to make a temporal commitment to abide by it.15 In these circumstances, the judiciary must cede to the expression of popular sovereignty, not merely because the amendment is an unmistakable expression of public will but because this convergence of interests is undisputable evidence of “the triumph of the political process over the intervening institutional and electoral barriers erected by the separation of governmental powers.”16 Moving to the second theme, the contributors to this volume have also shown that in multi-religious, multi-ethnic, and multi-lingual societies, federalism is often perceived as the best—or perhaps the only—solution (at 310). As Alfred Stepan explains, the fact that the six most linguistically and ethnic ally diverse states (India, Canada, Belgium, Switzerland, Spain, and the USA) are federations does not establish anything in and of itself but demonstrates that federalism at least enables these countries to manage the challenges associated with such diversity.17 Unsurprisingly then, there is often consensus in diverse societies that some form of federalism is necessary. The devil, however, lies in the details—what does federalism mean and what form should it take? We need look no further than Nepal to understand that these are the questions that prove most vexing to politicians and constitutional framers.18 Opponents of federalism in Nepal were concerned that a Nepali federation would be organized along ethnic lines. Such federalism, they feared, would accentuate entrenched inequalities, isolate certain ethnic groups, alienate those who identified themselves as Nepali first, and prove to be economically unviable.19 As Edrisinha (Chapter 10) explains, many Nepalis accept federalism in principle but not ethnic federalism. Moreover, Nepalis have different conceptions of ethnic federalism (at 310). Another cause of disagreement is how revenue is to be allocated between local, provincial, and central governments. Allocating revenue on the basis of an “economic merit”20 or a “fair return”21 system proved unfeasible in Nepal, since only a small number of districts generate a lion’s share of the country’s revenue.22 On the other hand, an equalization model that gives the federal government power to distribute revenue would tilt the scales heavily in favor of the central government. This would give rise to the criticism that the constitution harbors a “pro-center bias” (at 302). The recent emergence of these difficult issues in Nepal reminds us all that the question of how a federal system should operate is equally if not more vexing than the question of whether a federal system should be adopted. Furthermore, any federal arrangement and its concomitant recognition of regional autonomy may fall prey to its own success. One of the concerns raised during the debates on federalism in Sri Lanka was that the grant of broader rights to specific communities in separate parts of the country would encourage self-segregation. Special rights for Tamils in the north and the east, it was argued, would prompt Tamils in other parts of the country to relocate to those regions (at 314). Similarly, the political successes of regional parties with a powerful exclusionary agenda (such as the Shiv Sena in India’s state of Maharashtra) demonstrate the inherent racialist dilemmas associated with any federal project. In the final analysis, Unstable Constitutionalism marks an important contribution to the burgeoning constitutional discourse on consequential23 courts, and the invaluable role they can and must play even in authoritarian regimes.24 For this reason alone, this volume should be on the must-read list of every comparative constitutional law scholar in the twenty-first century.

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