Constitutional Resilience in South Asia

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South Asia has had a tumultuous and varied experience with constitutional democracy that predates the recent rise in populism (and its study) in established democracies. And yet, this region has remained largely ignored by constitutional studies and democracy scholars. This book addresses this gap and presents a contribution to the South Asia-centric literature on the topic of the stability and resilience of constitutional democracies. Chapters deal not only with more extensively covered South Asian countries such as India, Bangladesh, Pakistan and Sri Lanka, but also with countries often ignored by scholars, such as Bhutan, Nepal, Maldives and Afghanistan. The contributions consider the design and functioning of an array of institutions and actors, including political parties, legislatures, the political executive, the bureaucracy, courts, fourth branch/guarantor institutions, the people and the military, to examine their roles in strengthening or undermining constitutional democracy across South Asia. Each chapter offers a contextual and jurisdictionally-tethered account of the causes behind the erosion of constitutional democracy, with some examining the resilience of constitutional institutions against democratic erosion.

Author(s): Swati Jhaveri; Tarunabh Khaitan; Dinesha Samararatne (editors)
Publisher: Hart Publishing
Year: 2023

Language: English
Pages: 501
City: Oxford

Foreword
Acknowledgements
Table of Contents
List of Contributors
PART I: CONSTITUTIONAL RESILIENCE DECODED
1. Constitutional Resilience in South Asia: A Primer
I. Introduction
II. Pathologies in Comparative Constitutional Studies
III. A Proto-comparative Approach
IV. Diagnosing Constitutional Decay in South Asia – Mapping the Terrain
V. Furthering the Field of Study
PART II: CONSTITUTIONAL DESIGN
2. Institutional Resilience and Political Transitions in Sri Lanka and Beyond
I. Introduction
II. Political Change and Institutional Reforms
III. Evolution and Implications of Reforms
IV. Political Culture and Lessons on Institutional Resilience
V. Conclusion: The Twentieth Amendment, Constitutional Realities and the Road Ahead
3. Old Powers and New Forces in the Bhutanese Constitution – Anticipating the Resilience of a Young Constitution
I. Introduction
II. The Vision of the Constitution
III. Old Powers and New Forces
IV. Conclusion
PART III: FEDERALISM
4. Territorial Dynamics in Sri Lanka: Federalism, Unitarism and Path Dependence
I. Introduction
II. Path Dependence of Institutions
III. Unitarism in Sri Lanka: Why it is Stable
IV. The Possibility of Federalism: A Viable Pathway
V. The Limits of Functional Federalism in Sri Lanka
5. Proposing a Solidarity-Based (Federal) Solution for Sri Lanka
I. Introduction
II. The Current Constitutional Context in Sri Lanka
III. The Thirteenth Amendment and Devolution
IV. The Meaning of Solidarity
V. Entrenching Solidarity in the Sri Lankan Constitutional Discourse
VI. Conclusion
6. The Constitutional Resilience of Human Rights in New Federal States: Local Government and the National Human Rights Commission in Nepal
I. Introduction
II. The Fourth Branch and Federal States
III. Human Rights in Post-conflict Nepal
IV. Local Government: An Important All-Weather Rights Actor
V. Challenges to Human Rights Implementation at the Local Level: Accountability and Capacity
VI. The National Human Rights Commission: Guaranteeing Rights Across All Levels of the Federation
VII. Conclusion and Recommendations
PART IV: THE POLITICAL BRANCHES
7. Killing a Constitution with a Thousand Cuts: Executive Aggrandisement and Party-State Fusion in India
I. Introduction
II. Mechanisms for Executive Accountability
III. Attacks on Electoral Accountability
IV. Erosion of Institutional Accountability I: Containing the Opposition
V. Erosion of Institutional Accountability II: Capturing or Undermining the Judiciary and Fourth Branch Institutions
VI. Silencing Discursive Accountability Mechanisms
VII. Conclusion
8. Dysfunction and Ad Hocism in Agenda Setting: Compromising of the Lok Sabha in India
I. Introduction
II. Agenda Setting in the Lok Sabha
III. Analysing Agenda Setting in Practice: Methodology
IV. Analysing Agenda Setting in Practice: Unpredictability and Dysfunction in the Agenda-Setting Process
V. Conclusion
9. Dysfunctional Resilience in the Afghan Civil Service
I. Introduction
II. Reform and the Reality of Governance
III. Failed States can be Surprisingly Resilient
IV. Troubled Memories
V. Cherished Continuities and Reasonable Resistance
VI. Conclusion
PART V: THE JUDICIARY
10. The Maldives: A Parable of Judicial Crisis, Institutional Corrosion and Democratic Demise
I. Introduction
II. Impact of Constitutional Design on Democratic Decay and Breakdown
III. Effects of Politicisation of the Judiciary: Judicial Overreach and Disruption of Constitutional Institutions
IV. The Road to Resilience: A Proposal for the Constitutional Reform of the Judiciary
11. Judicial Evasion, Judicial Vagueness and Judicial Revisionism: A Study of the NCT of Delhi v Union of India Judgment(s)
I. Introduction
II. Laying Down the Principles: The Five Judge Bench
III. Applying the Principles: The Two-Judge Bench
IV. Judicial Evasion, Judicial Vagueness and Judicial Revisionism
V. Conclusion
PART VI: FOURTH BRANCH (GUARANTOR) INSTITUTIONS
12. Sri Lanka's Guarantor Branch: Constitutional Resilience by Stealth?
I. Introduction
II. The Guarantor Branch, Constitutional Resilience and Vulnerability
III. Sri Lanka's Guarantor Branch: Constitutional Innovation
IV. Threats and Constitutional Vulnerabilities
V. Resilience by Stealth?
VI. Conclusion
13. The South Asian Fourth Branch: Designing Election Commissions for Constitutional Resilience
I. Introduction
II. Constitutional Resilience and Election Commissions
III. The South Asian 'Fourth Branch'
IV. The Challenges to the South Asian Model
V. Conclusion
14. Between Trust and Democracy: The Election Commission of India and the Question of Constitutional Accountability
I. Introduction
II. Jurisprudence of Deference
III. Democracy and Distrust
IV. Trust and Accountability
V. Trust Over Democracy
VI. Conclusion: The Challenge of Operational Accountability
15. The Turbulent Journey and Overlooked Opportunities of Electoral Democracy in Bangladesh
I. Introduction
II. Mandate of the Election Commission: A Toothless Tiger?
III. Dereliction of the Election Commission and the Emergence of the Non-party Caretaker Government
IV. The Thirteenth Amendment Judgment: An Assessment from the Perspective of Consolidation of Electoral Democracy
V. Conclusion
PART VII: THE MILITARY
16. Rescuing the Agency and Resilience of Civilian Political Actors: Civil-Military Relations in Pakistan, 2008–20
I. Introduction
II. The Existing Narrative on Military Dominance in Pakistan
III. Mainstreaming the Agency of Political Elites
IV. Conclusion
17. A Frozen Democratic Transition: Pakistan's Hybrid Regime and Weak Party System
I. Introduction
II. Pakistan as a 'Hybrid' Regime
III. Pakistan's Political Parties: Flaws and Struggles
IV. Inconsistency, Centralised Decision-Making and Weak Accountability in Political Parties
V. Conclusion: Political Expediency, Weak Party System Institutionalisation and Regime Hybridity
PART VIII: THE PEOPLE
18. Rethinking Constitutional Resilience from Below: Dalit Rights and Land Reform
I. Introduction
II. Constitutional Performance Reconsidered
III. Dalit Mobilisation and Land Reform in Surendranagar
IV. Law and Navsarjan's Efficacy: Politics in the 'Shadow of Law'
V. Rethinking Constitutional Resilience
19. Constitutional Patriotism in India: Appreciating the People as Constitutional Actors
I. Introduction
II. Beyond Institutions – People as Constitutional Actors
III. Constitutional Patriotism
IV. India as a Site of Constitutional Patriotism
V. Indian Constitutional Patriotism as a Tool of Constitutional Resilience
VI. Conclusion
PART IX: CONCLUSION
20. Epilogue: Resilience and Political Constitutionalism in South Asia and Beyond
I. Foreword to the Epilogue
II. Introduction
III. South Asia and the Question of Case Selection
IV. Constitutional Resilience and the Diversity of Challenges
V. 'Beyond Courts' – or Political Constitutionalism and the Paths to Resilience
VI. Conclusion and Some Desiderata for Future Research
Index