Constitutional Resilience in South Asia

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. 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 "This book interrogates the reasons why constitutional democracies in South Asia are under threat, provides a coherent and calibrated account of the causes behind their erosion, and evaluates the resilience of democratic institutions to combat such threats. It considers the design and functioning of institutions including political parties, legislatures, the political executive, the bureaucracy, courts, fourth branch/integrity institutions (such as electoral commissions) and the military to understand their roles in strengthening or undermining constitutional democracy in South Asia. It is written at a time when concerns about the stability of constitutional democracies, even long-established democracies, have been rising globally. South Asia has had a tumultuous and varied experience with constitutional democracy that predates the recent rise in populism. Pakistan and Bangladesh have frequently changed regime type, from democracy to autocracy and back. Sri Lanka and India have been relatively more stable, but serious concerns are being expressed about the resilience of their democratic institutions. Nepal and Afghanistan, as some of the youngest democracies in the world, pose another set of questions on the issue of democratic and constitutional stability. And yet, the global South has remained largely ignored by constitutional law and democracy scholars. This book addresses this gap. Contributors come from across South Asia, including India, Bangladesh, Pakistan, Sri Lanka and Afghanistan, to present a unified contribution to the South Asia-centric literature on the topic of the stability and resilience of constitutional democracies."-- Provided by publisher 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 relatively well known 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 (such as electoral commissions), 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, and some examine the resilience of constitutional institutions against democratic erosion.