Faculty of Legal Studies South Asian University New Delhi

FACULTY OF LEGAL STUDIES
SOUTH ASIAN UNIVERSITY

NEW DELHI
CCLSAARCN
WEEK-3
THE FUNDAMENTAL PRINCIPLES OF COMPARATIVE CONSTITUTIONALISM
Constitutionalism; The Norms and Forms of Constitutionalism; Classical, Modern, Liberal, Political and
Contemporary Constitutionalism, The Concept of State in the Third World and the Problematics of
Constitutionalism, the Crisis in the Modern Constitutionalism, Pluralism and International
Cosmopolitanism, the Twilight of Comparative Liberal-Democratic Constitutionalism, the Contemporary
Constitutionalism as the Law of the Peoples, Constitutionalism in a Polycentric Polity, Inter-
Constitutional Collisions, Comparative Constitutionalism in South Asia, The Predicament of
Constitutionalism in South Asia, Constitutionalism and the Rule of Law in the 21st Century, Alternative
Secularism, Constitutionalization, Reflections on Constitutionalism; From Balanced Constitutionalism to
Sustainable Constitutionalism, People & Societies in the SAARC & Beyond and Summation.
BY
NAFEES AHMAD
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THE FUNDAMENTAL PRINCIPLES OF
COMPARATIVE CONSTITUTIONALISM
 DISCUSSION TOPICS:
 What is a new Constitutional Question?

 What is the relationship between a written constitution and
constitutionalism?
 Can there be Constitutionalism without a Constitution?
 What is Constitutionalism and Extra-Constitutionalism?
 Comparative Constitutionalism: Universal or Particular?
 Is there Unstable Constitutionalism in South Asia?
 Does Constitutionalism necessarily entail pre-commitment through
entrenched law?
 Does Constitutionalism necessarily require commitment to specific
substantive norms?
 Is European Constitutionalism not merely an intra-European
phenomenon that can also be compared to other major forms of
Constitutionalism?
 What is the distinction between European Constitutionalism and US
Constitutionalism?
THE FUNDAMENTAL PRINCIPLES OF
COMPARATIVE CONSTITUTIONALISM
What are the Inter-regime Conflicts in Constitutional Law?

What are the Intercultural Conflict norms and how to manage
Intercultural Conflicts?
What are the Guiding Principles in Various Constitutional Conflicts?
What is Cultural polycentrism?
What are the contours of Constitutional Law and Politics in South
Asia?
What are the Constitutional Challenges in SAARC Nations?
How to map the Common Constitutional Problems in SAARC
Nations?
Tension between Constitutionalism and the Judicialization of Politics
in South Asia?
Competing Nationhood and Constitutional Instability in South Asia?
Mapping the Plurinational Understanding of Constitutionalism in
South Asia?
What is the future of Constitutionalism in South Asia?
Cooperation among the SAARC Nations on Constitutional
Commonalities.
AN APERCUS
 That social scientists across various disciplines have long

recognized the fierce difficulties that human beings face in
organizing themselves into self-governing and self-sustaining
communities.
 That anthropologists and sociologists have identified certain
necessary starting mechanisms for the creation of norm-based
social systems, including legal systems.
 That the most obvious of such mechanisms is the basic rule of
reciprocity: promises made are to be kept; debts incurred are to
be repaid; kindnesses received are to be recognized and returned.
 That the idea of reciprocity helps to sustain a community over
time has a long pedigree.
 That the reciprocity is the ultimate constitutional rule, and what
we more commonly understand as the constitutional law is a
means of formally consecrating the norm for particular needs and
circumstances.
 That constitutionalism can of course exist without a written
constitution. But the concept of constitutionalism has today
evolved into an institution deeply rooted in its written nature.
AN APERCUS…
 That from the early Legal Codes of Mesopotamia to the

Solomonian Constitution, from the Hebrew Bible to the
Quran, from the Vedas to Magna Carta, from the US
Constitution to the UDHR, humanity has across the ages
developed a profound reverence for textuality.
 That accessible and touchable, the written form invites the reader
to take hold of the text as her own and to engage with it in ways
that outflank even the grandest ethereal ideas and spoken
promises.
 That the result is salutary—both for the project of building

nationhood and for the challenge of entrenching public
citizenship—because it constructs a collective identity and
orients citizens toward their common interest.
 That writtenness has brought along with it a cavernous hazard:

the advent of the written constitution has spawned a culture of
constitutionalism that threatens to devolve into a cult of
constitutionalism defined more by artifice than virtue.
TRADITION OF CONSTITUTIONALISM
 That the idea of a constitution as a contrivance which not only

describes but confines government, at least in its everyday activities.
 That the argument for such confinement was stated by Alexander
Hamilton in The Federalist:
 "In framing a government which is to be administered by men over
men, the greatest difficulty lies in this: you must first enable the
government to control the governed; and in the next place oblige it
to control itself. A dependence on the people is, no doubt, the
primary control on government; but experience has taught
mankind the necessity of auxiliary precautions."
 That to these auxiliary precautions we give the name
constitutionalism. The tradition of constitutionalism begins in ancient
Athens and has had a long, interrupted, and irregular history to the
present day.
 That it has embraced devices of two kinds; Institutional arrangements
of one sort or another have been advocated on the ground that they
protected substantial interests from governmental encroachment.
 That "Checks and Balances" have been the machinery on which
most of these contrivances relied; they have been nothing less than a
fetish with constitution-makers.
CULT OF CONSTITUTIONALISM
Constitutionalism compels, constrains and commands all

dimensions and dynamics of our everyday lives in ways
large and small that we often do not fully appreciate—
perhaps because constitutions take many forms that we
do not generally associate with constitutionalism. From
the arts, sports, trade, entertainment, politics, science,
technology and war, constitutionalism is both the point of
departure and the port of call.
THE IDEA OF CONSTITUTION
AND CONSTITUTIONALISM
 The supreme law of the land.

 The basic law of a state which sets out how that state will
be organized, the powers and authorities of government
between different political units, and by stating and the
basic principles of the society.
 In Black Law Dictionary, "The fundamental and
organic law of a nation or state that establishes the
institution and system of government, defines the
scope of governmental sovereign powers, and
guarantees individual civil rights and civil liberties.”
 Tomas Paine remark that, "Government without a
Constitution is a power without a right.”
AND CONSTITUTIONALISM…
 WHAT SHOULD CONSTITUTIONS DO?
To answer this question, we must begin with a prior one: What is a
constitution?
 That the idea of a constitution is very old, roughly as old as
systematic thinking about politics.
 That it was a central idea in the thinking of the Greeks, the first
systematic political scientists.
 That but if we go to Plato or Aristotle expecting to find the
concept of constitution we deploy when we speak of
Constitution, we will be surprised and perhaps disappointed.
 That they use the term in the primordial sense of the word that
we still readily recognize when we speak of someone as having
a strong constitution.
 That the Constitution, as used here and by the older political
writers, means primarily the makeup of something–in the
political case, the structure and arrangement of political offices.
In the first instance, “constitution” was a descriptive term, but
the Greeks also regularly asked: What is the best
constitution?–a variant of the question we are asking, “What
should constitutions do?”
 That from antiquity, people have committed to writing the rules
designed to govern their affairs.
 That a most basic reason for preferring a written to an oral record has
been to facilitate communication across time.
 That in Enlightenment conceptions of the social contract, Rousseau
and Montesquieu, Hobbes and Locke, imagine each citizen
voluntarily ceding to all others, or to the polity, or to a particular
leader, the unrestrained liberty of a state of nature in exchange for the
security necessary to the tranquil enjoyment of life, especially
security in one’s property.
 That John Locke, the most influential social contract theorist in the
North American colonies, was an Englishman, and his thinking
clearly reflected his experience under the British constitution.
 That Locke published his Second Treatise of Government in 1690,
few governments in the world could assert a more just claim to having
struck the proper balance between freedom and security—to have
arrived at the proper replication of the social contract
 That Holland in the seventeenth century was a crucible of
individualism, religious pluralism, and economic liberty; and Spain
had combined mercantilism and monarchy to extend its influence
across the continents.
 That the origins of American constitutionalism drawn from
eighteenth century Americans who had conceived of
constitutionalism in instrumental terms – as a consciously
contrived mechanism for yoking limitations on government to
the will of the people in a dynamic, geographically distributed
manner.
 That American constitutionalism was thus distinguishable at the
time of the American Revolution from the organic and taxonomic
British notion that viewed the constitution as little more than an
historical description of the proper functions of government.
 That the American Framers really had no choice but to produce a
written constitution, in order solemnly and credibly to assure the
states—large and small, free and slave—that their conflicting
interests would be accommodated, and their continuing
sovereignty respected.
 That the Constitution established the roles and functions of the
national government: legislative, executive, and judicial,
separated in keeping with the teachings of Montesquieu, Locke,
and Blackstone.
 That it specifically enumerated the powers of each branch, identified
those matters for which national authority would supplant state
authority, and attended to such administrative matters as succession
and apportionment.
 That a common misconception holds that only with the later
addition of the first ten amendments, the Bill of Rights, did the
Constitution include guarantees of individual liberties.
 That as Madison pointed out during the debates over ratification,
‘‘the Constitution proposed by the Convention contains . . .a number
of such provisions,’’ including the prohibition of ex post facto laws,
the availability of habeas corpus, and the right to a jury trial in the
state where the crime was committed. And within two years, of
course, the Bill of Rights itself was added to the document.
 That the Framers bequeathed a written constitution, it behooves to
review the advantages and disadvantages that come with that legacy.
 That Constitution should provide a durable statement of what the
basic law is; of what the Framers would communicate could they
still do so; of how Government should work and of the constraints
upon its actions.
 That Chief Justice John Marshall, assessed the virtues of the
written Constitution in his seminal opinion in Marbury v.
Madison wherein Chief Justice Marshall took the occasion to
announce ‘‘that a law repugnant to the constitution is void;
and that courts, as well as other departments are bound by
that instrument.’’
 That consider the Dred Scott case, in which the Court for the
first time in the 56 years since Marbury invalidated an Act of
Congress. The Congress had enacted the Missouri Compromise
in 1820, prohibiting slavery in the Louisiana Territory north of
Missouri. Scott’s previous owner had taken Scott from Missouri
to a territory in which slavery had been outlawed by the
Compromise and then back to Missouri, where the owner sold
Scott to Sandford.
 That Scott brought an action in federal court seeking his freedom,
claiming that he became a free man by virtue of his presence in
the territory where the Congress had outlawed slavery.
 That the Court held that the Congress was without power to
divest Scott’s previous owner of his property interest in Scott, and
hence the Missouri Compromise was void.
WHAT IS CONSTITUTIONALISM?
 That the doctrine or system of government in which the governing power is

limited by enforceable rules of law, and concentration of power is limited by
various checks and balances so that the basic rights of individuals and groups are
protected.
 That “A commitment to limitations on ordinary political power; it revolves
around a political process, one that overlaps with democracy in seeking to
balance state power and individual and collective rights; it draws on
particular cultural and historical contexts from which it emanates; and it
resides in public consciousness.”
 That Constitutionalism recognizes the need for government with powers but at
the same time insists that limitation be placed on those powers. It envisages
checks and balances by restraining the powers of governmental organs by not
making them uncontrolled and arbitrary.
 That a constitution can be defined as the fundamental laws custom, conventions,
rules and regulations, stipulating how a country is governed, while
constitutionalism can be defined as a principle which is not just a constitution but
put limitations to the activities of individuals and the government.
 That the implication of constitutionalism is that in exercising its powers the
government should be limited by law. Its authority over the people is dependent
on its observance of the limitations under the law. Those limitations are usually
enshrined in the constitution.
WHAT IS CONSTITUTIONALISM?...
 Neil Walker suggests, "[C]onstitutionalism is the set of beliefs

associated with the idea of constitutional government.”
For example, the French would emphasize the organic unity of the
People and the General Will; Americans would focus on federalism
and checks and balances between the branches of government;
Canadians might emphasize the value of multiculturalism.
 That another constitutional theorist, Ulrich Preuss, defines
constitutionalism as "the basic ideas, principles, and values of a
polity [that] aspires to give its members a share in the
government.”
 That in this view, the analyst focuses on what Joseph Raz identifies
as the "thick" elements of a constitution: those foundational notions
of how, "in our political system," "we" organize the state, constitute
our government, provide for representation and participation, protect
minorities, promote equality, and so on.
 That here again, Constitutionalism will vary; institutional
arrangements and public policies that are viewed as legitimate, or
even required, in one country may be considered unacceptable in
another.
 That a constitution is a charter of government deriving its whole authority

from the governed. ‘Constitutionalism’ means limited government or
limitation on government. It is antithesis of arbitrary powers.
 That for the political scientist, Carl Friedrich, Constitutionalism refers to
"limited government," situations wherein the higher law "effective[ly]
restrains" those who control the coercive instruments of the state.
 That Koen Lenaerts, a law professor and a judge on the European Court of
First Instance, similarly defines Constitutionalism as “limited government
operating under the rule of law.”
 That Michel Rosenfeld, notes that “there appears to be no accepted
definition of Constitutionalism,” but then states that “modern
constitutionalism” requires imposing limits on the powers of government,
adherence to the rule of law, and the protection of fundamental rights.
 That still, others take an even thicker, cultural view of constitutionalism,
conceiving it as an overarching ideology of politics, community,
citizenship, and the state.
 That in this tradition, constitutions are analyzed in terms of their capacity
to express the collective identity of a specific people through their values,
aspirations, and idealized essence.
 That to these scholars, a robust Constitutionalism is a well-

spring of legitimizing resources for the body politic, helping it to
evolve as circumstances change.
 That in contrast, a weak Constitutionalism fails to represent
collective identity and fails to reconstruct the legitimacy of the
state in times of crisis.
 That many Notions of Constitutionalism are explicitly
normative, emphasizing the good or proper functions that a
constitution is alleged to perform, such as limiting government,
embodying political ideals, and expressing collective identity.
 That a Constitution without reference to the "good" or "proper."
 That again, a constitution is a specific cluster of meta-norms,
those systemically-constitutive rules and principles that guide us
on how all other lower-order legal norms are to be produced,
applied, and interpreted.
 That where we see meta-norms, we observe a constitution.
Thus, Constitutionalism may be conceptualized as the
commitment of a polity to govern itself in conformity with the
meta-norms.
THE EVOLUTION OF CONSTITUTIONALISM?
 That in the past, Constitutions were promulgated by Kings.
 That the concept of governing a country on the basis of a constitution,
drafted by a special representatives is the product of democratic
revolutions.
 That Constitutionalism first found its expression in the Philadelphia
Convention in the USA and it was the 1st nation to experiment with a
written constitution.
 That the American constitution laid the foundation to the art of
Constitutionalism.
 That later French revolution succeeded in giving a greater development
to the Constitutionalism.
 That Constitutionalism suggested a way of reconciling of the power of
the state with individual liberty & rights and the evolution of these
rights has a long history in the UK, USA and France.
 That Magna Carta in 1215, Habeas Corpus Act of 1679, Bill of Rights
in 1689 in the UK , Declaration of Independence in 1779 in USA &
French Declaration of Rights of Man and Citizens of 1789.
 That after the end of the conflict between monarch and the feudal lords.
The results of the revolutions of different kinds in France, USA,
USSR, and the overthrow of the colonial rule in the 3 rd world countries,
the concept of “Constitutionalism” has taken deep roots.
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THE CONCEPT OF CONSTITUTIONALISM
 That it may be impossible to define the concept of

Constitutionalism in a relatively consensual, straightforward way.
 That the preferred concept of Constitutionalism denotes the
commitment on the part of any given political community to be
governed by constitutional rules and principles.
 That Constitutionalism is a variable, the commitment to live under a
constitution, rather than to seek to undermine or destroy it, varies.
 That in any context, this commitment, as an indicator of a
constitution's social legitimacy, can be strong or weak and its
character can change over time.
 That Constitutionalism to refer to those practices and
understandings of government that are derivable from, or inhere in,
any particular constitutional order.
PRINCIPLES OF CONSTITUTIONALISM
 KEY PRINCIPALES
 Checks & Balances
 People’s Rights
 Individual Rights
 Collective Rights
 Popular Sovereignty
 Separation of Powers
 Limited Government
 Constitutional Governance
 Accountable Governance
 Responsible Governance
 Participatory Governance
 Transparent Governance
 Republicanism
 Federalism
 Transcendental Judicialism [I perceive as…]
 Judicial Review
 Judicial Institutionalism [I perceive it as…]
 Judicial Constitutionalism [I perceive it as…]
 Rule of Law
PRINCIPLES OF CONSTITUTIONALISM…
 That the term Constitutionalism has not been defined authoritatively any
where, however a common understating in legal scholars does obtain
about how the idea is understood.
 That Louis Henkin has given a basic list for the Contents of
Constitutionalism which are:
 Government according to the Constitution

 Separation of Powers
 Popular Sovereignty and Democratic Governance
 Constitutional Review
 An Independent Judiciary
 Controlling the Police
 Civilian Control of the Military
 Individual Rights
 Suspension and Derogation Provisions
 Provision of Amendment
THE INTERRELATIONSHIP BETWEEN
CONSTITUTIONS AND CONSTITUTIONALISM
 That Constitutions and constitutionalism vary across time and place.

 That a constitution can be "bad" for democracy, with meta-norms
establishing dictatorship and a polity's constitutionalism actually
legitimizing authoritarianism.
 That no obvious or necessary correlation exists between a stable
community's "collective identity" and the social legitimacy of any
legal system, constitution, or state.
 That many obvious examples evidence this disconnect, even among
relatively resilient Western states.
 That some "nations" or societies possess strong collective identity, but
have neither a constitution nor a state (for example, the Basques).
 That other constitutional regimes, such as Canada, are relatively
robust, despite cultural heterogeneity and weak collective identity.
 That some supposedly strong cultural systems-France, for example-
have experienced constitutional chaos over centuries. France has had
fifteen different constitutions since the Great Revolution of 1789.
CATENA OF CONSTITUTIONALISMS
 IDEATED CONSTITUTIONALISMS
 Compensatory Constitutionalism
 Institutional Constitutionalism
 Functional Constitutionalism
What characterizes functional constitutionalism is a bold and
uncompromising—and for some perhaps a disconcerting— amorality
about the role of a constitution. Functional constitutionalism pays no
heed to questions of right and wrong, virtue or vice, just or unjust. It
is “wholly neutral in moral and political terms,” and makes no
judgment as to whether a given constitution “is good or bad or
about whether it is worth commending or condemning.”
 Transformative Constitutionalism
 Classical Constitutionalism
 Modern Constitutionalism
 INDIVIDUALIZED CONSTITUTIONALISMS
MY–NESS OF CONSTITUTIONALISM
 Constitutionalism is an architecture of equality, liberty and

fraternity duly institutionalized by a hierarchical system
impregnated with good governance, tranquil transparency
and assident accountability.
 Constitutionalism is a justicial juxtaposition of institutions

and instrumentalities of the state ordained by equality with
equity, liberty with limitation and democratic governance
enunciated in the highest order.
 Constitutionalism is the province of powers of state

determined by the supremacy of social justice, paramountcy
of institutional fairness and majesty of law.
 Constitutionalism is a code of state behaviour whereby it

transacts legislative, executive and judicial obligations based
on rule of law.
MY–NESS OF CONSTITUTIONALISM…
 Constitutionalism is unlimited with limited continuum in

democratic political set-up wedded with an enterprise of rule
of law.
 Constitutionalism is the legitimacy of governance sanctioned

by the rule of law.
 Constitutionalism is the constitutional constraint entrenched

by the rule of law.
 Constitutionalism is a DNA of a geo-political entity

wherefrom a trinity of governance, guidance and grace stem
to establish egalitarianism of human existence.
WORLD CONSTITUTIONALISM MODEL
 That World Constitutionalism can even grow without a written

document as in some countries Constitutionalism preceded the
Constitution. In fact, it can have extra legal origin, say through
academic debate, and peoples’ discussion via the net using various
communication techniques.
 That the best reason for its acceptance is that World
Constitutionalism has already stepped the threshold of International
Law under various guises as its principles are applied in
Environmental Law, Human Rights, and many other fields.
 That another reason is that World Constitutionalism has several
advantages of a World Constitution itself with the added
characteristic that it is free from the element of imposition and
apprehension of power control. A unique feature of
Constitutionalism is its flexibility.
 That besides Constitutionalism goes much beyond the Constitution
itself. Even after enactment of a Constitution, Constitutionalism
grows and flourishes, as Constitutions are not dead documents.
WORLD CONSTITUTIONALISM MODEL…
 Briefly here are some points for consideration on World Constitutionalism:

 World Constitutionalism does not require a written document to start with as
evidenced from history of some countries.
 Writteness is not essential element of Constitution and much less of a World
Constitutionalism. Though Constitutionalism in some countries such as India
and US grew rapidly with the document, a document or series of documents is
not a sine qua non for starting Constitutionalism.
 Constitutionalism can provide philosophy, culture, concepts and values, for the
future Constitution.
 The process of developing philosophy, culture, concepts and values for the
future Constitution has already begun under different forms the world over.
World Constitutionalism will strengthen all such movements.
 Constitutionalism can start before a Constitution is framed or it can be a path
for future guidance of any such enactment.
 One can undertake a concerted effort to identify Legal Principles, Values,
Concepts, for world order under the umbrella of World Constitutionalism.
 Such principles and legal values may help in orientation of municipal courts,
national legislatures and national executives even before the law is made
enforceable.
CONSTITUTIONALISM, LEGAL PLURALISM AND
INTERNATIONAL REGIMES
 That the international legal order, although pluralist in structure, is in the process
of being constitutionalized.
 That different notions of "constitutional pluralism," and legal pluralism is not
necessarily antithetical to constitutionalism
 That the increasing complexity of norms and forms of international governance
and the transnational nature of many regulatory problems means that these
orders inevitably come into contact with one another and, at times, with national
constitutional orders.
 That the interaction of these autonomous legal orders will partly determine how
the overall system will develop and the system may well develop in ways that
are meaningfully constitutional.
 That the first way to conceptualize constitutional pluralism emphasizes how
constitutional orders are organized within a system that is otherwise pluralist, or
anarchic, in the sense that the system is not one of sovereign governance.
 That a second way of conceptualizing constitutional pluralism begins with
describing what is "constitutional" before describing what is "pluralistic."
 That some constitutionalists point to or seek to construct a body of higher-law,
international legal norms. The most invoked norms are, in fact, meta-norms such
as jus cogens norms, basic human rights, and procedural guarantees associated
with due process and access to justice.
ABSOLUTISM vs. CONSTITUTIONALISM
 PRE-CONDITIONS
 Since mid-17th century new tendencies in political thinking and
philosophy.
 Connected with Enlightenment (Enlightened Absolutism)
 Absolutism as system of modern statehood
 Absolutism as period: notion of despotism, unchecked monarchic power
 Why different from earlier periods, forms of statehood?
 THE SPECIFICITY OF ABSOLUTISM

 Enlightenment as background
 Increasing claim by monarchs for full authority over territorial state
 No princely responsibility to higher authority (e.g. law)
 Legitimacy derived exclusively from God
 MODERN ELEMENTS IN ABSOLUTISM

 Centralised administration
 New developments in warfare
 Outer appearance of rule: e.g. royal palaces (Versailles)
 Rationality as main principle, esp. in social and economic policy
(mercantilism)
 Religious tolerance
 Goal: public wealth
 Increasing importance of national principle
ABSOLUTISM vs. CONSTITUTIONALISM...
 PRE-REQUISITES
 Increasing readiness of local nobility to cooperate
 Reasons: desire for stability
 Pre-history: ongoing warfare (30 Years War, French civil war –
Fronde- 1648-53, British civil wars, Oliver Cromwell)
 CHARACTERISTICS
 Royal power not really absolute
 Ideological foundations (e.g. Louis XIV. as Sun King), Gloire as
motivation
 Militant: expansionist wars in Europe (French-Spanish war 1668-
72, Spanish succession war 1701-14, Silesian wars)
 CONSTITUTIONALIST DEVELOPMENTS
 Enlightened political thinking: Voltaire, Locke, Robbespierre, Kant
 Constitutional statehood: Poland (Szlachta, constitution 1791, USA
1776, French Revolution 1789)
 Enlightened restricted Absolutism survives in large parts of
Europe until 20th century
THE EVOLUTION OF ENGLISH CONSTITUTIONALISM
 FROM THE MAGNA CARTA TO THE GLORIOUS

REVOLUTION
 THE TRADITIONAL ROOTS

 The English inherited a strong tradition of limiting royal
authority from their Saxon Ancestors.
 In 1215 The Barons of England forced the King to sign the
Magna Carta
 The English developed a council which advised the King called
“Parliament.”
 THE STRUGGLE OF KING HENRY VIII

 King Henry VIII needed a son to inherit his kingdom.
 He separated England from the Catholic Church because they would
not annul his marriage.
 Henry went on to marry and divorce six wives until he finally got a
son.
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THE EVOLUTION OF ENGLISH CONSTITUTIONALISM…
 THE TUDOR DYNASTY: RELIGIOUS CIVIL WAR

 Edward VI (r. 1547-1553) Promoted Protestantism, condemned
Catholicism and published the first book of common prayer.
 Mary I (r. 1553-1558) Condemned Protestantism and tried to revive
Catholicism.
 Elizabeth I (r. 1558-1603) Restored Protestantism but allowed
religious tolerance as long as people acknowledged her right to rule.
(Elizabethan Religious Settlement)
 THE STUART DYNASTY: A STRUGGLE FOR ABSOLUTE

POWER
 James I (r. 1603-1625) Argued for the Divine Right of Kings and
struggled with Parliament to get absolute power over government in
England but was frustrated by Parliamentary power over taxes and
government finances.
 Charles I (r. 1625-1649) Tried to expand royal power through
foreign wars but was stopped by Parliament’s lack of support. When
he dissolved Parliament it caused a Civil War.
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 THE STUART DYNASTY STRONGLY BELIEVED IN DIVINE

RIGHT OF KINGS
 James I
Always a supporter of Protestantism he is famous for the King James
Bible. Yet he constantly struggled with Parliament over the rise of Puritanism
and control of state money.
 Charles I
He fought with Parliament for money to support his foreign policy and
when they refused he disbanded the government. Later he was forced to recall
Parliament and sign the Petition of Right which limited his power.
 THE ENGLISH CIVIL WAR: PARLIAMENT’S EMPTY VICTORY

 Charles I dissolved Parliament and created a split within the government.
 The members of Parliament raised an army (Roundheads) led by a puritan
named Oliver Cromwell (r. 1653-1658).
 The Royalists raised an Army to protect the King (Cavaliers).
 Cromwell’s New Model Army won the war.
33
DNA
 Cromwell did not want to rule England after the civil war but was
pressed by Parliament to do so. Once in power Cromwell enacted many
Puritan reforms such as closing theaters and enforcing a strict moral
code. When Parliament challenged his authority he dissolved it and
became a military dictator as Lord Protector of England.
 Although very successful as a general, Cromwell was not a good
politician and angered many in England. The Monarchy was restored
shortly after his death in 1658.
 THE RESTORATION
 Parliament asked Charles II (son of Charles I) to return and rule
England.
 Charles II became king and allowed Parliament to run the country.
 Charles II died with no legitimate heir and his throne went to James II
(his brother).
 James is a Catholic and came immediately into conflict with Parliament
and the English culture.
 The later Stuart kings were in England at Parliament’s invitation and
had little power to affect government independently.
34
DNA
 CHARLES II (R. 1660-85)

 Basically Charles II was a party animal who had little interest in
government. He rubber stamped all of Parliament’s laws to exclude
Puritans and Catholics from society and government
 JAMES II (R.1685-88)
 James II was more interested in taking an active role as king. He was
Catholic and wanted to remove the discrimination in English government.
When he tried to dissolve Parliament, the government turned against
him.
 THE “GLORIOUS REVOLUTION”

 James II tried to overturn Parliament’s laws.
 Parliament protested and James II tried to dissolve it.
 James’ Catholic wife had a son which would be heir to the throne.
 Parliament asked James’ Protestant daughter from his first marriage to
rule in his place.
 William and Mary brought a Army to England and drove James II out
without a battle.
35
DNA
 WILLIAM-III AND MARY-II (r.1689-1702)

 William and Mary allowed Parliament to control
government while they focused on foreign policy.
 The two signed the English Bill of Rights which
permanently limited the power of the monarchy and
insured that a Catholic would never become King or
Queen of England. Parliament won the Revolution!
36
DNA
FROM EVOLUTION TO EXECUTION OF
BRITISH CONSTITUTIONALISM
 PHILOSOPHICAL AND HISTORICAL BASIS FOR BRITISH

DEMOCRACY
 Features of the British Constitutional Order
– Common Law and Unwritten Constitution
– Majoritarianism/Parliamentary
– Unitary Government
– Role of the Crown
 A LITTLE POLITICAL HISTORY OF BRITAIN IN 19 TH

CENTURY
 Insular status
-Since the Norman invasion of 1066, no one has successfully invaded
Britain.
-Isolation - Aided in cultural distinction but also allowed
evolutionary political development
 There was violence
– English Civil War 1641-1651
37
DNA
BRITISH CONSTITUTIONALISM…
 BRITAIN HAD DEVELOPED INSTITUTIONS OF
DEMOCRACY FAIRLY EARLY ON IN ITS HISTORY
 Magna Carta Liberatatum (Great Charter of Freedoms) 1215- limited
power of King John
 Subsequently the “Provisions of Oxford” (1258)
 Emergence of parliament in 13th Century as an institution (although
dominated by nobility
 Glorious revolution (1688) and English Bill of Rights (established
parliament supremacy)
 Early establishment of accountability of the Crown to representatives
of the people In stark contrast to the growth of absolutism in places like
France and Spain
 Framework for system was established
 End of Napoleonic Wars in 1815 and Britain emerged as a predominant
global power (sense of security enhanced)
 In part contributed to the “relaxation” of the elite and a lessened fear of
revolution and the mob
 19th century witnessed expansion of the franchise (right to vote)
38
DNA
 ENGLISH INDUSTRIALIZATION AND THE SOCIAL

MOBILIZATION OF SOCIETY IN 19TH CENTURY
 Britain was the first country in Europe to industrialize itself.
 Britain was the dominant economic power of the world
from the 1700s to 1946 (roughly).
 Industrialization led Britain away from agrarian society
and toward industrial, urban society
 Industrialization led to empire
 And also led to significant social class differences
 Brought more people into the political process
 In 1831 only about 400,000 out of 14 million could vote
(largely due to property requirements)
39
DNA
 REFORM ACT 1832

 The Act granted seats in the House of Commons to large cities that had
sprung up during the Industrial Revolution , and took away seats from
the “ rotten boroughs” (districts with very small populations)
 Increased the right to vote by reducing property requirement to include
650,000 adult males
 Second Reform act in 1867 further expanded the vote to include about 2
million voters out of approximately 5 million adult males by reducing
property and income requirements
 Enfranchised the middle and working classes
 EVOLUTIONARY DEVELOPMENT
 Slow change has always marked the evolution of British institutions
 Britain resembles Edmund Burke's "organic society" where things
change slowly, by evolution rather than by revolution.
 Britain avoided abolition of the monarchy, unlike France, Italy, and the
United States.
40
DNA
 FEATURES OF THE BRITISH CONSTITUTIONAL ORDER

 Common Law and Unwritten Constitution
 MAJORITARIANISM/ PARLIAMENTARY
 Majority rule is maximized when one political party supported
by a majority in the legislature controls the cabinet.
 This one party majority cabinet should predominate over the
legislature. Theoretically powerful legislature, but
government sets the political agenda
-Legislature is bicameral with aristocratic House of Lords and
directly elected House of Commons
-House of Commons selects Prime Minister and Cabinet i.e.
Cabinet members are not merely advisors to the Prime Minister
 The legislature should be unicameral in order to ensure one
clear majority (to avoid competing majorities in other bodies)
 The governmental system is unitary and centralized not federal
41
DNA
 The cabinet and the parliamentary majority should not be

constrained by constitutional limitations (this is where an
unwritten constitution is less constraining than a written one)
 The courts should not have the power to limit the majority’s
power via judicial review
 Two party system
 One dominant political cleavage(e.g. socio economic)
 plurality electoral systems- as in the US. (NOT proportional
representation as in continental Europe)
 UNITARY GOVERNMENT
 Unitary government rather than federalism as a form of
government.
 National government is supreme.
42
DNA
 ROLE OF THE CROWN

 The crown is the locus of authority more symbolic than real– provides
legitimacy.
 Although they are elected, the Prime Minister and other ministers of the
crown seek Royal approval for heir nomination to office.
 Ministers work with the Monarch and act in her name, thus creating the
notion that they are not responsible to the people but to the crown.
 DEVELOPMENT OF COMMON LAW

 Common law is "judge made law."
 Stare decisis - "Let the decision stand.” from Stare decisis et non quieta
movere, "Maintain what has been decided and do not alter that which has
been established") is the legal principle by which judges are obliged to
obey the precedents established by prior decisions.
 Continental Europe tends to have statute (legislative) law, so Britain is
unique.
 The Common Law will likely disappear as Britain is incorporated into the
European Union
43
DNA
 THE CONSTITUTIONAL ORDER IS CHANGING

 Devolution since 1997 (Scottish and Welsh autonomy)
 Calling The Abolition of the Crown/Monarchy
 Calling the Abolition of the Hereditary Peerage
 The Abolition of the Judicial Committee of the House of
Lords and Establishment of Supreme Court of United
Kingdom
 Establishment of the Supreme Court in 2009
 Demanding the Secession of Ireland from UK
44
DNA
SOUTH ASIAN CONSTITUTIONALISM
AT THE ANVIL OF HUMAN RIGHTS AND DEMOCRACY
 That the grammar of modern constitutionalism determines the structure and

limits of key components of contemporary legal and political discourse.
 That this grammar constitutes an important part of our legal and political
imagination that determines what questions we ask about our law, polities
and policy as well as the range of possible answers to these questions.
 That this grammar consists of a series of rules and principles about the
appropriate use of concepts like people, self-government, citizen, rights,
equality, autonomy, nation and popular sovereignty.
 That quest about the normative relationship between State, nation and
cultural diversity, the criteria that should be used to determine the
legitimacy of the State, the individuals that can be considered members of
the polity, the distinctions and limits between the private and the public
spheres, and the differences between autonomous and heteronomous
political communities makes sense to us because they emerge from the rules
and principles of modern constitutionalism.
 That responses to these questions are certainly diverse. Different traditions
of interpretation in modern constitutionalism—liberalism,
communitarianism, and nationalism, among others--compete to control the
way these concepts are understood and put into practice
45
DNA
AT THE ANVIL OF HUMAN RIGHTS AND DEMOCRACY…
 That it is hard to deny that constitutionalism and Western legal traditions in

human rights have exerted a strong influence on most Asian legal systems.
 That this influence has been constrained or structured by many factors,
with specific influences explaining the actual impact of Western legal
traditions on the various Asian legal systems.
 That each particular Asian legal system remains unique in many ways, the
end result being a mixture or a “blend” of these numerous factors.
 That it is worth attempting to classify the major Asian legal systems in the
light of these many conflicting influences.
 That history, religion, culture and political regime constitute the major
criteria that can be used to differentiate the various South Asian legal
systems and better measure the influence exerted on them by
constitutionalism and Western traditions of human rights.
 That modern constitutionalism did not emerge in Asia. In many ways, the
values of a limited constitutional state are alien to the traditional Asian
mind and milieu.
 That every Asian state has, beyond possessing a constitution, consistently
espoused constitutional values and principles.
46
DNA
 That no government, no matter how authoritarian, claims to be

anything other than a constitutional government. But, of late,
vibrant constitutional democracies have taken hold in South Asian
soil.
 That scant attention, however, has been placed upon the ways that
constitutionalism has been brought into being and developed into
distinctive forms in South Asia.
 That by studying the South Asian jurisdictions together, a number of
common features shared by constitutional developments in them,
which include instrumental constitutional state building, textual and
institutional continuity, reactive judicial review and a wide range of
rights in tune with social and political progress.
 That these features developed in South Asian constitutionalism do
not merely mirror standard (Western) constitutionalism nor are
under shadow of Asian Values or merely in tandem with transitional
constitutionalism.
 That the full blossom of South Asian constitutionalism has shed a
new light on contemporary constitutionalism and moved itself from
periphery to the center of comparative constitutional studies.
47
DNA
 That South Asian nations have had some difficulty in maintaining their
Independence of constitutions.
 That drafted in the euphoria of decolonization these constitutions have
been challenged by communal politics, revolutions of the political right
and left and military coups.
 That the Constitution of India 1950 has been the only Constitution to
survive these varied onslaughts without a break in application albeit
with almost 100 constitutional amendments.
 That Bangladesh and Pakistan have endured several phases of
constitutional suspension or repeal.
 That the resolution of the ethnic conflict in Sri Lanka rests on a
comprehensive revision of the Constitution.
 That in all these jurisdictions, the courts have engaged with some
version of a 'basic structure doctrine'.
 That the Indian Supreme Court has developed the doctrine into a novel
and extensive device of constitutional judicial review.
 That the Pakistani and Bangladeshi Supreme Court have modestly
embraced the doctrine in recent years to warn future coup plotters.
 That the Sri Lanka courts have rejected the arguments that the doctrine
applies to their constitution
48
DNA
 That Constitutionalism has swept the world by the end of the last
twentieth century. More than two-thirds of world populations live
under constitutional democracies that observe to a certain extent
human rights protection, rule of law, judicial review, limited
government and separation of powers.
 That Constitutionalism has moved beyond traditional nation-state
borders and developed into regional constitutionalism or
constitutionalism in blocks.
 That the efforts at making a European Constitution and the
evolutionary process by which traditional European states have
moved closer to one another in a constitutional sense illustrates
this trend well.
 That even North American states including Canada, the United
States and Mexico are gradually becoming a constitutional block
by sharing common regulatory powers in a constitutional sense.
 That an ever closer African Union, formerly the Organization of
African Unity, was launched in 1999, and a constitutive act was
passed in 2001.
49
DNA
 Against this backdrop of global constitutionalism, how are

we going to assess constitutional developments in South
Asia today? Are South Asian states also seen as
functioning constitutional democracies? To what extent
and in what ways are their constitutional functions
characterized as the same or different from others
particularly in the West?
 More importantly, with the rise of regional

constitutionalism, is there any possibility for South Asia
to emerge as a kind of regional constitutionalism or
perhaps a kind of constitutionalism with South Asian
features? If so, what would be possible features? To what
extent would those features include so-called “Asian
values”?
50
DNA
 STAGGERING GAP IN COMMUNICATION AMONG
SOUTH ASIAN SYSTEMS
 South Asia is geographically, culturally and psychologically
integrated.
 However:
- Communications about ‘systems of law and constitution’
among nations of South Asia is largely void.
- Attempts to develop ‘dialogue or interactions’ among these
systems ‘are not encouraging even today’, though the
regional organization of cooperation is set up and regional
trade and exchange of arts, knowledge, and science is
encouragingly widened.
- South Asian nations being so close neighbors, none of
them are spared from impact of ‘events or development’ in
any member.
- This presentation ‘intends to invite young scholars to
engage in comparative study of the SAARC systems of
law, constitutions and other issues pertaining to law and
justice’
51
DNA
 GROUND REALITIES- THE SOUTH ASIAN

CONSTITUTIONALISM MUST TAKE INTO ACCOUNT
 South Asia home of 22 percent of the world population
 It is a home of 43 percent poor people of the world
 Despite promising micro-economic growth, SA is the most
impoverished region looked from human development
indicators, such as health and education
 The region inhabits 47 percent of the world's illiterate
population aged 15 years and above (up to 59 years)
 Over 71 percent of the South Asians live in rural areas mostly
unemployed.
 Estimated 437 million people live below 1.25 US dollar a day
and 237 million live at risk of dying before the age of 40 years.
 867 millions have no access to basic sanitation and more than
300 million undernourished.
 South Asian theories of Constitutionalism must take care of
these people .
52
DNA
 BASICS OF DEMOCRATIC
CONSTITUTIONALISM
 That the all members of SAARC have constitutionally
endorsed the liberal democracy.
 That the quest for sustainability of democratic values
and institutions is unceasing in South Asia.
 That all the members have written constitutions based
on the constitutionalism of separation of powers.
 That the principle of independent of judiciary and its
activist role to ensure implementation of pro-people
and pro-democratic polices is manifestly higher.
 The highest judiciaries in the region have played crucial
roles in shaping the state's pro-people policies and
implementation thereof.
 That the recognition of the jusiticiability of the
economic, social and cultural rights in India, Nepal and
Bangladesh is spectacular
53
DNA
 UPS AND DOWNS OF DEMOCRATIC STRIVE
 That the Third wave of Democracy has swept through South
Asia, which is characterized by five forms of regime change.
 That three of these characteristics witnessed in South Asia;
(a) Cyclical-Alteration between democracy and
authoritarianism,
(b) Second Try-Pattern—being weak structurally as well as
constitutionally gave way to authoritarianism and eventually got
replaced by stronger democratic structure,
(c) Interrupted Democracy—the democratic system was
interrupted temporarily and was restored after a popular
movement.
 That without exception, all nations of South Asia have
manifested one of the above patterns during their political
evolution.
 That today, all members of SAARC have been ruled by
written constitutions under a multi-party structure of
democracy'. The adult franchise has been enshrined into by all
constitutions.
54
DNA
 CHARACTERISTICS OF SAARC DEMOCRACY

 The history of democracy in the region hence presents a
continuous evolutionary process.
 This evolutionary process has encountered setbacks, the
authoritarianism in some countries making an unfortunate
return at regular intervals.
 The evolutionary process manifests two important
characters:
(a) uniqueness of the attempts at democracy, as a
rare lesson in the consistent desire for democracy, despite
recurring failure,
(b) the trial and error are engendering variants of
structures and values quite distinct to that evolved by the
Western liberal democracy.
 The second character is mainly inspired by the failure to
duplicate the popular tenets of Western democracies.
55
DNA
 COUNTRY SPECIFIC DEVELOPMENTS
Bhutan
 That the youngest democracy in the region, adopted a new
Constitution in 2008 clearing the way from hereditary monarchy
to a 'constitutional one' under a parliamentary system.
 That a unique deviation of Bhutanese democracy from the
Western liberal democracy is it 'adopts' a principle of 'cultural
governance' along with individual freedom.
 That the cultural governance here implies a notion that 'the
practice of democratic principles and institutions' should not
defile the 'cultural identity' of the people.
Bhutanese Constitution intends to institutionalize the:
 That democratic nation building by exploring the cultural
connectivity among the people, which interjects some disciplines
of human life as 'symbols of civility'.
 That the blurring of a distinct identity as a pre-condition of
successful democracy is rejected. The notion is that a 'nation can
keep its cultural identity along with democratic institutions and
sovereignty of people lying with the elected representatives'.
56
DNA
Governance efforts for empowerment of people, which can be realized while
asserting their traditional moorings.
Enjoyment of democratic rights or freedoms under conditions of cultural
supervision.
The democracy in Afghanistan also rejected the 'principle of blurring the cultural
and religious identity of democracy'.
The blend of human rights guaranteed by the international human rights
conventions and the Islamic tradition is a unique feature of the 'Afghan
democracy'.
The West minister model of 'governance system' generated an abominable test to
the Western liberal democracy in Nepal, leading to a bloody insurgency for a
decade.
The Interim Constitution of Nepal, 2007, is a 'social contract of the Nepalese
people' which guarantees a system of democracy that will respect the 'participation
of divergent competing ideologies' and 'devolution of powers' to the local people.
The democratic transformation process of Nepal thus will categorically imply

that:
End of bloody revolution was realized by accepting a 'norm within a democratic set up'
to let its propagators engage, without forcing it to compromise its ideological beliefs, in
political competition.
57
DNA
The modus operandi of people for participation in democratic system of
governance is defined by its own constituents, i.e. the people.
Constitutional continuity does not singularly imply the 'notion of political
stability', hence the 'events' that break from the traditional political
system' in order to give space for all in the system should be defined as
'political development' but not the political instability.
After end of the tenure of Bangladesh Nationalist Party (BNP) in 2006,
Bangladesh fell in rule by a 'Caretaker Government' backed by the
Military.
The caretaker government emerged heavily against political leaders in its
mission of anti-corruption 'crackdown‘
The Representation of the People Ordinance 2008 made some interesting
rules:
a) bar on officials on contesting polls within three years retirement,
b) mandatory election fund accounts and determination of individuals
election expenditure
c) Anti-hoarding policies to check price rise, and onslaught on the
Jama'atul Mujaheedeen Bangladesh militants. Democratic rule was
strengthened by ‘electoral reforms’.
58
DNA
 Majdar Hossain’s Case (1999) which is also known as the
Judicial Separation Case, which has relevance and
implications with constitutionalism in Bangladesh
 Anwar Hossain Choudhury vs. Bangladesh, Popularly
known as 8th Amendment case this case is one of the most
important cases decided in Bangladesh where the apex court
of the country as guardian of the Constitution is found to
interfere with the function of the legislature by declaring a
portion of the law amending the constitution as invalid. In
this case the Supreme Court of Bangladesh applied the
doctrine of basic structure of the constitution to decide the
constitutionality of the 8th amendment of the Constitution.
 5th Amendment Case (2005), In this case the Supreme
Court held that some basic structures of the Constitution
were destroyed through the 5th Amendment to the
Constitution. The Court declared all martial Law
Proclamations, order, regulations, rules issued and executed
under the first martial law regime ratified by the 5th
Amendment of the Constitution as unconstitutional.
59
DNA
7th Amendment Case (2011), The Supreme Court, in this case, found
that some basic structures of the constitution were destroyed through
the 7th Amendment to the Constitution. It declared all Martial Law
Proclamations, Orders, regulations, rules issued and executed under the
second martial law regime ratified by the 7th Amendment of the
Constitution as unconstitutional.
13th Amendment Case (2012), A writ petition was filed in the
Supreme Court in 2000 challenging the legality of the non-party
caretaker government system in the Constitution introduced by the
Constitution (13th Amendment) Act, 2006. Four years later, the High
Court Division declared that the Constitution (13th Amendment) Act,
2006 has not affected or destroyed any basic structure or feature of the
Constitution; rather it promoted the concept of democracy and rule of
law in the country.
Proposed Reforms
–Executive Reforms
–Legislative Reforms
–Political Reforms
–Judicial Reforms
60
DNA
 INDIA
 That India is pioneer for designing and enforcing a 'constitution'
popularly made, i.e. through the duly represented Constituent
Assembly
 That the transition from the one-party dominance to coalition politics
and culture - a 'trait of Indian democracy' in recent era with
comfortable resilience and stability
 That the desire for framing the constitution of India by a 'popular
body', the Constituent Assembly, was necessitated by the 'quest for
Swaraj (Self-Rule)
 That the 'constitution', from the light of the history of Indian
Constitution making process, struggle and efforts put into it, is an
evidence of 'national independence as well as the guarantee of
freedoms of people.
 That this doctrine is unique in South Asia as most countries after their
liberation from colonial rule or autocracy made 'all hard efforts to
ensure a "Constitution' with guarantee of freedoms of citizens' as the
precious 'yield' of the revolution or political change.
 That the 'most fundamental embryo' of the South Asian
Constitutionalism lies on this fact.
61
DNA
 That on 13th December 1946, Jawaharlal Nehru, India's first Prime

Minister, moved a resolution: "Aims and Objects of the
Constituent Assembly", which later became the Preamble of the
Constitution. This resolution is 'one of the most historical sources of
South Asian Constitutionalism' today. Some important principles
underlying the resolution are as follows:
a. Autonomy of unit of territory that is associated to constitute the
'Union of India'.
b. All power and authority of the Government of India and its
parts and organs derived from people.
c. A democratic system must guarantee and secure to all the
people social, economic and political justice; equality, before
the law, of status and opportunity; freedom of thought,
expression, belief, faith, worship, vocation, association and
action, subject to law and public morality.
d. As it implies, equality, before the law, is an essence of
democracy as no exercise freedom would be possible without
'equality' of status and opportunity.
 That Adequate safeguards for minorities, backward and tribal areas.
62
DNA
 That in Olga Tellis v. Bombay Municipal Corporation (1985) 3

SCC 545 there has been a concomitant expansion of the
fundamental rights expectations so that the right to life and
liberty includes amongst other, the right to livelihood,
environment and education. But over and above this the Indian
polity was led under a strong commitment for democratic norms
which were at no time in the history of the state disrupted.
 That two recent cases involving the power of courts to review

Parliament’s legislative and non-legislative functions—the
Coelho and Raja Ram Pal cases—demonstrate the Indian
Supreme Court is embarking on a new era of judicial review,
asserting itself as a co-equal branch of government and a body
dedicated to upholding principles of democratic government.
– I.R. Coelho (Dead) By LRS v. State of Tamil Nadu & Others,

(2007) 2 S.C.C. 1
– Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Others, (2007) 3
S.C.C. 184
63
DNA
 SRI LANKA
 That Sri-Lanka is credited with running a successful

political system through the current century characterized by
regular elections and smooth transfer of power
 That rule by majority has been a 'characteristic feature of
democracy advocated' by dogmas of Western liberal
democracy
 That this dogma has made Sri-Lanka to pay a high cost; the
sidelining of the minority Tamil community eventually
resulted with an 'unprecedented surge of conflicts' tolling
deaths of hundreds of people.
 That Western liberal democracy's trait of ‘majority’ rule has
failed to secure grounding in South Asia.
64
DNA
 PAKISTAN
 The strong personality with weaker system is making
Pakistan's democracy a 'fragile system'.
 Role of Military Establishment
 Role of State Institutions
 Role of Civil Society
 That the first constituent assembly of Pakistan right from the start
got embroiled in a series of divisive disagreements over formulas
of power sharing, ethnic and linguistic issues and religion
 That for nine years the state did not have a constitution and was
provisionally being ruled under the Government of India Act,
1935 which was suitably modified.
 That after a series of crises the first constitution was drafted in
1956. However it did not last for long and a military dictator
abrogated it. Another one was drafted in 1962 that too was
scrapped.
65
DNA
 That finally in 1973 the latest constitution was hammered out
much on the lines of the Indian one with a more or less
similar structure in terms of fundamental rights content,
provisions for the supremacy of the constitution and
provisions for judicial review.
 That the Supreme Court of Pakistan has followed a careful
and conservative course while facing cases concerning
abrogation of the constitution and dismissal of
democratically elected governments by military dictators it
has in most instances legitimised military intervention
 That strangely the Supreme Court has given contradictory
judgments in cases concerning dismissal of governments by
military dictators.
 Benazir Bhutto v. Federation of Pakistan (1988),
 Mohammad Nawaz Sharif v. President of Pakistan
(1993).
 Dr. Mohmmad Aslam Khaki & Another v. SSP
(Operations)-Rawalpindi & Others, Const. P49/2009
66
DNA
 FUNDAMENTAL TRAITS OF SOUTH ASIAN

CONSTITUTIONALISM
 That Constitutions of South Asia 'reflect on aspiration of
people for freedoms and self-governance‘
 That Legitimacy of the South Asian Constitutions is
contingent on 'popular movements of people --against
colonial or authoritarian subjugation or tyranny‘
 That Conventions have had played less role to play in
legitimacy of “constitutions”
 That Restoration or Revitalization of Sovereignty" is an
important principle of ‘Constitutionalism of South Asia‘
 That Constitutions in South Asia thus not only 'body of
fundamental rules for governance', they are also a 'source
or means of restoration of people’s sovereignty'.
 That no constitution of South Asian nation can be
'interpreted or construed in oblivion of its unique political
history of liberation'
67
DNA
 That equally important feature of constitutionalism can

be discerned from political history.
 That since constitution was considered as a 'final
outcome of political movement in each country', the
primacy given to 'its adoption by people representatives
themselves' was invariably emphasized.
 That Doctrine of Necessity is widely practiced 'tool' of
legitimizing the 'constitution' making process.
 That most South Asian countries emerged independent
out of colonial regimes, or colonial backed autocratic
regimes.
 That Judiciary has thus been accepted as the 'custodian'
of the basic structure of the Constitutions.
 That the legislative body does have inherent powers to
'adopt amendments of to the Constitutional provisions'
68
DNA
 A CONCLUSIVE ANALYSIS
 THAT Democracy is a melting pot of diversity is

rejected by the ‘democratic evolutionary’ process in
South Asia.
 THAT South Asian Constitutionalism is largely
structured by innate Contextualism- i.e. the political
history of revolution against colonials and autocrats.
 THAT innate source of South Asian Constitutionalism
lies on aspirations of people to institutionalize national
independence and freedoms of people.
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TRANSITIONAL JUSTICE
 WHAT IS TRANSITIONAL JUSTICE ?
 Transitional justice refers to the set of judicial and non-judicial
measures that have been implemented by different countries in order
to redress the legacies of massive human rights abuses. These
measures include criminal prosecutions, truth commissions,
reparations programs, and various kinds of institutional reforms.
 Transitional justice is not a ‘special’ kind of justice, but an approach
to achieving justice in times of transition from conflict and/or state
repression. By trying to achieve accountability and redressing
victims, transitional justice provides recognition of the rights of
victims, promotes civic trust and strengthens the democratic rule of
law.
 WHY IS TRANSITIONAL JUSTICE IMPORTANT?

 In the aftermath of massive human rights abuses, victims have well
established rights to see the perpetrators punished, to know the truth,
and to receive reparations.
 Because systemic human rights violations affect not just the direct
victims, but society as a whole, in addition to satisfying these
obligations, states have duties to guarantee that the violations will
not recur, and therefore, a special duty to reform institutions that
were either involved in or incapable of preventing the abuses.
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TRANSITIONAL JUSTICE…
 A history of unaddressed massive abuses is likely to be socially
divisive, to generate mistrust between groups and in the institutions
of the State, and to hamper or slow down the achievement of security
and development goals.
 It raises questions about the commitment to the rule of law and,
ultimately, can lead to cyclical recurrence of violence in various
forms.
 As it is seen in most countries where massive human rights
violations take place, the claims of justice refuse to ‘go away.’
 THE ELEMENTS OF A COMPREHENSIVE TRANSITIONAL

JUSTICE POLICY
The different elements of a transitional justice policy are not parts of a
random list, but rather, are related to one another practically and
conceptually. The core elements are:
 Criminal Prosecutions, particularly those that address perpetrators
considered to be the most responsible.
 Reparations, through which governments recognize and take steps
to address the harms suffered. Such initiatives often have material
elements (such as cash payments or health services) as well as
symbolic aspects (such as public apologies or day of remembrance).
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 Institutional Reform of abusive state institutions such as armed

forces, police and courts, to dismantle—by appropriate means—the
structural machinery of abuses and prevent recurrence of serious
human rights abuses and impunity.
 Truth Commissions or other means to investigate and report on
systematic patterns of abuse, recommend changes and help
understand the underlying causes of serious human rights violations.
 Reparations Programs. These are state-sponsored initiatives that
help repair the material and moral damages of past abuse. They
typically distribute a mix of material and symbolic benefits to
victims, benefits that may include financial compensation and official
apologies.
 Gender Justice. These efforts challenge impunity for sexual and
gender-based violence and ensure women’s equal access to redress of
human rights violations. A gender justice approach should be a
central element, exploring how women and men experience conflict
and human rights violations differently. The pursuit of gender justice
includes prosecutions for gender-based violence; reparations delivery
to diverse groups of women and their families; memorials
recognizing women’s experiences; and institutional reform that
serves human security needs and promotes women’s access to justice.
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 Security System Reform. These efforts seek to transform

the military, police, judiciary and related state institutions
from instruments of repression and corruption into
instruments of public service and integrity.
 Memorialization Efforts. These include museums and

memorials that preserve public memory of victims and raise
moral consciousness about past abuse, in order to build a
bulwark against its recurrence.
Although these initiatives are widely understood to form a

basis for transitional justice efforts, they do not represent an
exclusive list.
Many societies have developed other creative approaches

to past abuse—one reason why the field has gained both
strength and diversity over the years.
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 TRANSITIONAL JUSTICE IN INTERNATIONAL LAW

 As the field has expanded and diversified, it has gained an important
foundation in international law.
 The legal basis for transitional justice is the 1988 decision of the
Inter-American Court of Human Rights in the case of Velásquez
Rodríguez v. Honduras, in which the court found that all states have
four fundamental obligations in the area of human rights. These are:
-To take reasonable to prevent human rights violations;
-To conduct a serious investigation of violations when they occur;
-To impose suitable sanctions on those responsible for the
violations; and
-To ensure reparation for the victims of the violations;
Those principles have been affirmed explicitly in later decisions by the

court and endorsed in decisions by the European Court of Human Rights
and UN treaty bodies such as the Human Rights Committee. The 1998
creation of the International Criminal Court was also significant, as the
court’s statute enshrines state obligations of vital importance to the fight
against impunity and respect for victims’ rights.
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 This is not a closed list. Different countries have added other

measures. Memorialization, for example, the various efforts to keep
the memory of the victims alive through the creation of museums,
memorials, and other symbolic initiatives such as the renaming of
public spaces, etc., has become an important part of transitional justice
in most parts of the world.
 Despite the fact that transitional justice measures rest on solid legal
and moral obligations, there is wide latitude as to how these
obligations can be satisfied, and therefore there is no formula to fit all
contexts.
 A HOLISTIC APPROACH
 Dealing with widespread human rights violations raises large practical
difficulties.
 A country’s political balance may be delicate, and a government may
be unwilling to pursue wide-ranging initiatives, or it may be unable to
do so without putting its own stability at risk.
 The many problems that flow from past abuses are often too complex
to be solved by any one action.
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 Judicial measures, including trials, are unlikely to suffice: If there

are thousands or hundreds of thousands of victims and perpetrators,
how can they all be dealt with fairly through the courts—especially
in cases where those courts are weak and corrupt?
 Even if courts were adequate to the task of prosecuting everyone
who might deserve it, in order to reconstruct a damaged social
fabric, other initiatives would be required.
 Without any truth-telling or reparation efforts, for example,
punishing a small number of perpetrators can be viewed as a form
of political revenge.
 Truth-telling, in isolation from efforts to punish abusers and to
make institutional reforms, can be viewed as nothing more than
words.
 Reparations that are not linked to prosecutions or truth-telling may
be perceived as “blood money”—an attempt to buy the silence or
acquiescence of victims.
 Similarly, reforming institutions without any attempt to satisfy
victims’ legitimate expectations of justice, truth and reparation is
not only ineffective from the standpoint of accountability, but
unlikely to succeed in its own terms.
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 Transitional justice should be designed to strengthen

democracy and peace—the key goals for societies
picking up the pieces after periods of mass abuse.
 These goals are more likely to be reached with active
consultation of, and participation by, victims’ groups and
the public.
 A society’s choices are more likely to be effective if they
also are based on a serious examination of other
societies’ experiences as they emerged from a period of
abuse.
 This reduces the likelihood of repeating avoidable
errors, which transitional societies can rarely afford to
make.
 Finally, a holistic approach implies taking into account
the full range of factors that may have contributed to
abuse.
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POSTAMBLE
 That over the last few decades the world has witnessed a
profound transfer of power from representative institutions to
judiciaries, whether domestic or supranational.
 That the concept of constitutional supremacy-one that has long
been a major pillar of the American political order-is now
shared, in one form or another, by over one hundred countries
across the globe.
 That numerous post-authoritarian regimes in the former Eastern
Bloc, Southern Europe, Latin America, and Asia have been
quick to endorse principles of modem constitutionalism upon
their transition to democracy.
 That even countries such as Canada, Israel, Britain, and New
Zealand-not long ago described as the last bastions of
Westminster-style parliamentary sovereignty-have gradually
embarked on the global trend towards Constitutionalization.
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POSTAMBLE…
 That Constitutionalism is ubiquitous. It informs how states

behave in the international order, how governments treat their
constituents, how communities order themselves, how groups
relate to individuals, and how citizens interact with each other.
 That Constitutionalism compels and constrains all dimensions
of our everyday lives in ways large and small that we often do
not fully appreciate, perhaps because constitutions take many
forms that we do not generally associate with constitutionalism.
 That whether in the arts, sports, trade, entertainment, politics,
or war, constitutionalism is both the point of departure and the
port of call.
 That South Asian constitutionalism embodies without a doubt a
thin understanding of liberal constitutionalism upon which
state, society and individuals are defined.
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POSTAMBLE…
 That despite many state-centered institutional arrangements,

states and individuals become more than ever distinguished, if
not become confrontational.
 That in many aspects, constitutional developments in South
Asia look similar to those in new democracies like Europe. But
they are not the same.
 That the tension between liberal rights and social rights has not
been strong.
 That in a rather significant way, constitutionalism in South Asia
has already developed its own paths and patterns that require
more of scholarly attentions.
 That hopefully, the full blossom of Asian constitutionalism will
shed a new light on contemporary constitutionalism and
become the center of comparative constitutional studies for the
next decades to come.
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Faculty of Legal Studies South Asian University New Delhi

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FACULTY OF LEGAL STUDIES

SOUTH ASIAN UNIVERSITY

THE FUNDAMENTAL PRINCIPLES OF COMPARATIVE CONSTITUTIONALISM

 What is a new Constitutional Question?

What are the Inter-regime Conflicts in Constitutional Law?

 That social scientists across various disciplines have long

 That from the early Legal Codes of Mesopotamia to the

 That the result is salutary—both for the project of building

 That writtenness has brought along with it a cavernous hazard:

 That the idea of a constitution as a contrivance which not only

Constitutionalism compels, constrains and commands all

 The supreme law of the land.

 That the doctrine or system of government in which the governing power is

 Neil Walker suggests, "[C]onstitutionalism is the set of beliefs

 That a constitution is a charter of government deriving its whole authority

 That to these scholars, a robust Constitutionalism is a well-

 That it may be impossible to define the concept of

 Government according to the Constitution

 That Constitutions and constitutionalism vary across time and place.

 Constitutionalism is an architecture of equality, liberty and

 Constitutionalism is a justicial juxtaposition of institutions

 Constitutionalism is the province of powers of state

 Constitutionalism is a code of state behaviour whereby it

 Constitutionalism is unlimited with limited continuum in

 Constitutionalism is the legitimacy of governance sanctioned

 Constitutionalism is the constitutional constraint entrenched

 Constitutionalism is a DNA of a geo-political entity

 That World Constitutionalism can even grow without a written

 Briefly here are some points for consideration on World Constitutionalism:

 THE SPECIFICITY OF ABSOLUTISM

 MODERN ELEMENTS IN ABSOLUTISM

 FROM THE MAGNA CARTA TO THE GLORIOUS

 THE TRADITIONAL ROOTS

 THE STRUGGLE OF KING HENRY VIII

 THE TUDOR DYNASTY: RELIGIOUS CIVIL WAR

 THE STUART DYNASTY: A STRUGGLE FOR ABSOLUTE

 THE STUART DYNASTY STRONGLY BELIEVED IN DIVINE

 THE ENGLISH CIVIL WAR: PARLIAMENT’S EMPTY VICTORY

 CHARLES II (R. 1660-85)

 THE “GLORIOUS REVOLUTION”

 WILLIAM-III AND MARY-II (r.1689-1702)

 PHILOSOPHICAL AND HISTORICAL BASIS FOR BRITISH

 A LITTLE POLITICAL HISTORY OF BRITAIN IN 19 TH

 ENGLISH INDUSTRIALIZATION AND THE SOCIAL

 REFORM ACT 1832

 FEATURES OF THE BRITISH CONSTITUTIONAL ORDER

 The cabinet and the parliamentary majority should not be

 ROLE OF THE CROWN

 DEVELOPMENT OF COMMON LAW

 THE CONSTITUTIONAL ORDER IS CHANGING

 That the grammar of modern constitutionalism determines the structure and

 That it is hard to deny that constitutionalism and Western legal traditions in

 That no government, no matter how authoritarian, claims to be

 Against this backdrop of global constitutionalism, how are

 More importantly, with the rise of regional

 GROUND REALITIES- THE SOUTH ASIAN

 CHARACTERISTICS OF SAARC DEMOCRACY

The democratic transformation process of Nepal thus will categorically imply

 That on 13th December 1946, Jawaharlal Nehru, India's first Prime

 That in Olga Tellis v. Bombay Municipal Corporation (1985) 3

 That two recent cases involving the power of courts to review

– I.R. Coelho (Dead) By LRS v. State of Tamil Nadu & Others,

 That Sri-Lanka is credited with running a successful