HLS Library Book Talk | Mark Tushnet on ‘Unstable Constitutionalism: Law and Politics in South Asia’
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HLS Library Book Talk | Mark Tushnet on ‘Unstable Constitutionalism: Law and Politics in South Asia’

September 12, 2019

SUZANNE WONES: Hello, everyone. We’re going to go ahead
and get started here. I’m Suzanne Wones. I’m the Executive Director of
the Harvard Law School Library. And on behalf of
the library, I’d like to thank you all for
coming to tonight’s book talk on Unstable Constitutionalism– Law and Politics in South
Asia, edited by Mark Tushnet and Madhav Khosla. We’re going to be raffling
off two copies of the book. So these little slips here
are the raffle entries. Once you’ve filled them out, you
can put them in the glass jar that Jim Casey’s
holding up over there. And we’re going to notify
the winners by email, so you’ll hear tomorrow who won. So I would just like to make a
couple of housekeeping notices. One is the talk today
is being videotaped, so if you ask any questions
during the question and answer period at the end, those will
be part of the recording. And without further ado,
I’ll go ahead and introduce tonight’s panelists. So we have Professor Mark
Tushnet, the William Nelson Cromwell Professor of
Law at Harvard Law School and co-editor of today’s book. And we also have
Nicholas Robinson, Resident Fellow at The Center
of Legal Profession here at HLS. And Rohit De, Associate
Research Scholar in Law at Yale Law School and Assistant
Professor in the Department of History at Yale University. Thank you all. Mark, do you want to start? MARK TUSHNET: Yeah thank you. Thank you all for coming. My job is basically just
to introduce the panel. And, excuse me, give a
series of thank-yous. So first to the library
for arranging this event and doing all the
logistical stuff associated with it, which is
always an important phenomenon. Second, I want to thank the
various entities at Harvard that provided support
for this project, in particular the South Asia
Now Institute, which provided important financial support in
connection with a conference that we held to begin to
put this project in shape and the several
components of the, I think of them as the
international studies elements at the law
school administered by Professor William Alford. And finally, to Madhav
Khosla, who’s not here. He’s in India, working on
his dissertation research. But this project was
basically Madhav’s idea. He came to me and said it seemed
to him that there was probably something worth doing
on constitutionalism in South Asia. And in particular,
that perspectives from scholars in
the region would be quite helpful in expanding
the domain or the subject matter of comparative
constitutional law. Just as a minor
bit of background, if you look at the field of
comparative constitutional law, it is heavily
dominated by, call it Atlantic scholarship–
that is US, European, the Commonwealth countries. And with some, but relatively
little contributions either from or maybe
either about or more significantly from other
regions in the world. And there is now a literature
on the northern nature of comparative
constitutional studies or a critique from
the global south and Madhav thought
and I agreed that it would be useful to see what
we could get on the region, again, mostly from
scholars from the region. I think only one of our
contributing contributors, aside from me, is
not from South Asia. So that’s the genesis of this. I wanted to say one word about,
you know, a paragraph or two, about the substance
of the collection, and in particular
about the title. The title and the theme that
we state in the introduction came out of reflecting on
the initial contributions that we had from
the contributors. We actually didn’t give people
guidance about what to write. We picked people who knew about
the nations they were writing about and then just
asked them to write on some dimension
of constitutionalism and the nations that
they knew about. But it seemed to
me in particular, that in listening to and reading
the preliminary presentations, there was a theme
which is captured by the phrase, in some
sense an odd phrase, unstable constitutionalism. What I meant by that, and Madhav
went along, I guess I’d say, is that most of the
contributors describe situations in which participants in
constitutional discourse, including drafters
and politicians, regard the creation of
a constitutional order as either essential for or
desirable for the creation of stability in their nations
which have experienced instability in a
variety of forms and for a variety of reasons. But constitutionalism
holds out the hope to all of these participants
of a stable solution. And that’s what
they’re committed to– constitutionalism as
generating stable solutions to the problems of instability
that each nation has confronted. But it turns out that
that commitment is itself, the commitment is constant,
I’d say, overstating it. But manifests itself
in ways that are unstable within each system. So the idea is again, this
is oversimplifying it, the idea is that at time one
in let’s say, Bangladesh, there is a vision of a
constitutional settlement that will permanently
stabilize the nation. But at time two, another
vision of a settlement that will permanently stabilize
the nation comes into being. And so you get this
kind of instability in pursuit of a stable solution
to the national problems. I should say that there
was one contribution from Asanga Welikala
about Sri Lanka that rejects this conceptualisation
because he sees the Sri Lanka settlement as now stabilized,
but in a strongly, in his view, anti-constitutional way. Because he gives
constitutionalism, a thicker substantive
content than my description of constitutionalism has. So that’s sort of
what I saw and Madhav saw as the theme of the work. There are, in my view, a number
of extremely interesting, discrete analyses of nations. And one contribution
of this collection is to bring the
attention or to expand the database on which
comparative constitutionalists can work. Just so as an example, there’s I
think a quite wonderful chapter on Bangladesh about the use
of the chief justiceship as the mechanism for
what are purportedly interim or caretaker
governments, but that actually
are the government for quite a long time. That’s just an
interesting fact of which I was completely unaware. And you know, I follow
a fair amount of stuff. So it suggests to me that this
database contribution may also be significant. So I want to say, I don’t know
a lot about constitutionalism in the region beyond
what these articles did and what these chapters did and
some other reading about India in particular. But I think in some ways
an important contribution of the work is to expand the
sense of constitutionalism in the region beyond India. So I am now in a
position to say, I am really quite interested in
seeing what Nick and Rohit have to say about the topic, not
necessarily about the book, but just about the topic. So I will stop and turn it over. We didn’t really organize
this, right to left. NICHOLAS ROBINSON:
OK, sure, happy to. Thank you, and
thanks for having me. It’s a real pleasure to be
here to celebrate this book. I’m constantly amazed
by not only the breadth of your scholarship, whether
its US constitutional law or comparative
constitutional law, but also the real pioneering and
an incredibly substantive ways in which you engage. And this book is no exception. And you were really able to
bring together a superb group of scholars in South Asia. And I want to emphasize just
how difficult this is to do. Many of these countries have
really nascent legal academies. It can be difficult to identify
who the appropriate people are to contribute, and
then get over all the logistics involved, as– you’re smiling
now– to make sure that you can bring them together
and they can contribute. And I think it really speaks
to the respect you inspire, your intellectual capaciousness,
your tirelessness, and your underlying
scholarly generosity, that you were able to convene
this, group which really is some of the leading
lights in terms of scholars who do this sort of work
on constitutionalism in South Asia. And I’m not going to try to
encapsulate all of the chapters here. I think as you mentioned,
there’s several chapters that I think are
major contributions in their own right,
just stepping away from this project. Whether that’s
Pratap Banhu Mehta has a wonderful chapter talking
about how the Indian Supreme Court is very difficult to fit
into traditional narratives about what courts do,
and argues that it’s much better to view it as a
conflict manager in India. Or a scholar I
hadn’t been aware of, but you had just mentioned a
young scholar, Asanga Welikala, who has this fascinating
account about Sri Lanka and how it’s best
viewed as pluranational or as two nations
sharing the same state. But what I want to do
with my limited time is to really focus on
the title of this book and the unifying idea
that you brought up, which is unstable constitutionalism. And I think that this
term is quite useful. And the core of the
idea as you say, is that all of these countries,
that most of the participants if not all of
them, are committed to an idea of
constitutionalism, but that they struggled to settle on stable
institutional structures. And I think this creates
a helpful organizing idea for dialogue
across South Asia and opens up a space
for further work, for further theorization,
for further debate that I’m sure will inspire a number of
other scholars going forward in this area. And I want to push you
just on three fronts and push the idea
on three fronts. So the first is the question
of regional constitutional identity or uniqueness
to South Asia. And some of the
authors mentioned this in their chapter
contributions, that you could use the same idea of
unstable constitutionalism to describe countries in the
West and certainly countries in Southeast Asia, Latin
America, or Africa. And I think in general,
one thing that’s been striking to me is
South Asia doesn’t have a particularly strong center
or self-conscious sense of constitutional identity. Even though it has these
shared British roots, I think this is partly
coming out of partition, kind of the dominant role
that India plays, sometimes an
antagonistic role that it has with some of its neighbors. And yet there are these
shared British roots. There are similarities
in economic background of many citizens. There’s shared religious
and ethnic groups. And even I think there’s
some potentially shared understandings among
judges about what political and
constitutional development means in their countries. And I’d love to get your
perspective as an outsider, to some extent, and an insider,
kind of an outsider insider, about what strikes you as
different about unstable constitutionalism in
the south Asian context, or I think, also part of
the strength of the idea is it also unifies,
connects it to other parts of the world at the same time. And you can make
comparisons there. Second, you point to
some common causes about unstable
constitutionalism. So the military,
religion, ethnicities, and some common responses that
you see across these countries, whether that’s increased
judicial activism, different experiments
with federalism. And so another question here
is what kinds of lessons can we learn here
that can be shared either across these countries
or from this region of the world to other parts of the world? So take, for example,
the striking power of courts in South Asia. And I don’t want to
overstate this argument. There’s plenty of
examples samples in each South Asian country
of incredibly pliable courts. But one of the common
themes that you see in a number of the chapters,
whether it’s discussions about India, Pakistan,
Bangladesh, even Nepal, is how the courts have
played this critical role in the political histories
of these nations. And even some have
claimed, you know, they’re these
overreactive judiciaries, and perhaps they’ve gone too far
in a number of these settings, which is not a complaint
that you sometimes hear necessarily in all
other parts of the world. And when we do this comparison
about judicial activism, you know, are there
lessons that can be learned about when it
happens, when it’s successful, unintended consequences. And even just kind
of more pragmatic or prescriptive
interventions as well of kind of a comparative exercise. So for example, one of
the big debates in India is about whether the Indian
Supreme Court sits in panels. There’s demands by many in the
southern part of the country and some of the other
parts of the country that the court should
have different benches in different parts
of the country so they could be more accessible
to citizens in these regions. And there’s lots and lots
of discussion about this. The members of parliament
will talk about it, but one thing that
struck me is it’s almost never mentioned that
this is exactly how Pakistan organizes its Supreme Court,
where the Pakistan Supreme Court sits in benches
in different provinces of the country. So if you wanted to think about
it in the Indian context, what might be the consequences
of having these benches that sit in different parts of the
country, looking to Pakistan, looking to neighbors might be
a helpful mode of analysis even within South Asia. And I’m curious if you
see other kinds of areas that are ripe for analysis. That’s one that certainly
has always struck me. And then finally I
wanted to push you on this question of methodology. And so, in his
chapter in this book, Sujit Choudry, who actually just
became the Dean of Berkeley Law School, points to,
or makes an argument that, there’s a gap in the
literature about how judgements are discussed in South
Asia, that they’re too often discussed
in a vacuum or a void away from the constitutional
politics and history of the nation. And that you know,
it’s really a plea for a sort of qualitative
contextualism, that I think a
lot of the authors in a lot of the chapters really
take some inspiration from, if not from Sujit’s analysis,
from that chain of reasoning. But as you know,
there’s something of a schism in comparative
constitutional law right now. And so you know,
there’s another set of really pioneering
and influential work by the likes of Tom Ginsburg,
of David Law, that’s much more historical and
quantitative, comparing how many different
constitutions in the world have this right
or this structure or share this language. And you can imagine similar
work being done in South Asia. So for example, within the
constitutions of South Asia, many of them share
language in their constitutional
provisions, and how have these been interpreted. Many major pieces
of legislation, including things
like criminal law because of shared British
roots, have similar language. You could even do, you
could imagine still just some sort of
quantitative analysis about particularly
countries outside of India. India doesn’t tend
to cite judgments very much from other
countries in South Asia. But other countries
in South Asia do cite the Indian
Supreme Court. They do cite other supreme
courts in the region. And you could see how these
ideas go from one jurisdiction to the other, whether that’s
being adopted as an idea or being reacted to as an idea. And so as you know,
there’s so much work to be done in South Asia. But there’s also, on one
level, you just want to say, we should do everything. We should just explore kind
of all methodologies, all these topics, whether it’s
the basic structure doctrine or federalism or judicial
activism or public interest litigation, all these
need to be explored. But there’s limited academic
resources within South Asia. I think you do have to be
somewhat strategic about it. And so I wonder what you think
are the most useful places for comparative
engagement, and how perhaps maybe this idea of
unstable constitutionalism fits into that or could
provide an umbrella for some of that work? So I think I’ll end there. But as I said, your book
is an incredibly important achievement, I think,
and will be wonderfully generative for an area
of comparative law in South Asia, which is really
very much in its early days. ROHIT DE: Thank you,
Professor Tushnet, for inviting me to
discuss this book. I want to echo Nick
in saying, this is really a
remarkable collection of essays that add a
lot both empirically and methodologically in
understanding the region. And I particularly
want to gesture in terms of methods on Mara
Malagodi’s article, which looks at, literally relates
the physical architecture of legal buildings in Nepal to
the changing sort of controls in Nepali constitutionalism. But what I want to actually
talk about in my comments is how this book really
offers an original way, and I think an important
way of thinking about the purpose of
comparative constitutional law more broadly, not just
limited to South Asia. So maybe begin with, I’d like
to begin perhaps thinking about why study South Asia? It’s a collection of countries
that are linked by geography. Some share a common
history, but others don’t. It’s a set of
disparate systems that include at very points of time
a constitutional monarchy, presidentialism,
military presidentialism, French semi-presidentialism
in Sri Lanka, and a parliamentary
democracy in India. It includes [INAUDIBLE] Hindu
kingdom, a Buddhist kingdom, an Islamic republic, a
former Islamic republic, and a secular republic that’s
struggling to stay secular. So maybe we can
think about, what are the various
reasons why people do comparative constitutionalism
and what are the models? One very common one seems
to be the United Nations model of constitutionalism,
which Nick referred to, which is let’s create a database
where we fill in the data from every country in the world. And perhaps distill
common norms and practices and look at how they move. The second, and that’s
been very common, particularly with the
South Asian scholarship, is there are
questions of interest to particularly
American, but also European constitutionalism, what
does South Asia have to offer on that? And there’s a distinct
number of essays which look at the citation
of international law or foreign judgments in the
Indian courts, something which is of completely unremarkable
and of no interest to most Indian scholars because this is
just how common law operates. You cite foreign judgments
and the no legitimacy crisis about it. The third, you should look
for spectacular difference. And if you look at a
certain Westlaw search, you’ll find an
overrepresentation of pieces talking about a
couple of issues– the personal law system
in South Asia, which allows for religious family
laws to exist within the secular state, and a focus
on the element of the constitutional
amendments, which really is seen as the innovation
of South Asian jurisprudence. And the fourth is a slightly
embarrassed approach, put forward by several
scholars of South Asia of an early
generation, which sees south Asian
constitutionalism in some ways as inauthentic,
as hostage to politics. And [INAUDIBLE] Kuwaraswamy,
the Sri Lankan scholar, described it as a sort of
bastard child of Anglo American constitutionalism, an
import from outside, not really rooted to the
society that it governs. And this echoes through
many other narratives. So I’m reminded of a short
story by a short story writer [INAUDIBLE]. And here he talks about the 1935
Government of India Act which is coming in. And his protagonist
is a [NON-ENGLISH], a sort of poor man who drives a
horse-drawn cart around Lahore, who is excited about this
idea of this new constitution. So he keeps telling his
passengers, a new constitution that’s coming that’s
going to end oppression, that’s going to change things. And the constitution
is finally announced. And that day, he sees a British
gentleman standing on the road. And he’s reminded of the
fact that this British guy had told him off earlier. So he insults him and he knocks
his hat off his head and says, the new constitution is in place
and I can do this to you now. And then obviously,
the British man calls the police and
the police beat Mangu up and they drag him away,
kicking and screaming. But he keeps shouting, but
there is a new constitution. There is a new constitution. And he’s taken into prison. And the short story is
often used by people to point to the fact that
despite the fact that South Asia has in terms of its texts,
many progressive constitutions, social reality remains
very different. Our politics dominates
constitutionalism. And in some ways,
constitutionalism is a sham, is a spectacle, that’s fooled
the people of the region. But what I think is captured
by this book really well is that despite the politics
and the politicking, there is an investment in the
idea of constitutionalism. And Mark, of course, picked
unstable constitutionalism as the title. But the other term that’s
used a couple of times in the introduction is
rambunctious constitutionalism, which I think in some ways
captures it even better, a sense that the
constitution matters. And this comes through again
in the introduction very beautifully, where
it says that it’s important to understand
that even though many of these legal
struggles are shaped by external politics and
often petty politics, there is a concern
of putting this through a legal
arrangement, the debates are through legal forums, and
the emphasis should do this through legal terms. And particularly reminded
of this because as we speak, in Nepal, there are
protests around the streets. There are
demonstrations and there is fighting about fixing
certain terms in the Nepali constitution is a
constitution which deals with, which deals with federalism. So why is this important? Why is it important to capture
a particular cited practice of constitutionalism which
offers something qualitative? And I think it should
perhaps caution us from certain models of
doing comparative law and comparative
constitutional law. So there’s an older sort
of body of work arising from Jeremy Bentham,
which is trying to find a distillation
of the models and practices of legislation
going back to the 19th century. And this model of
comparative law seeks to sort of
define a norm and then try to see to what extent
is the norm followed? And what often happens
is most of the world, so Asia, Africa,
Latin America, is defined as falling outside
the norm as a deviation from the norm. But I think what scholars
like Bhattacharjee have asked us to do is to
recognize the fact that many of these norms are
essentially at either of the historical practices
of Western Europe and North America. So naturally the rest
of the world then has to be explained
as a deviation. What this book
offers is to treat the historical
experiences of South Asia as norm generative in itself
and theory generative as itself. And it comes through really
clearly in both Pratap Mehta and Sujit Choudry’s essays. And Choudry invites us to think
about what are the issues that are important for the courts
and peoples of South Asia, and to define the questions
from those places itself. So what does this,
you know, what does this sort of generation
of theory in the East leave us and what is exciting about it? So again, if you back to what
Western normative theory is based on, it’s often
based on a certain kind of sequential development. So very schematically, we have
a commercial society emerging, some point of time
in the 16th century. This leads to the birth of civic
associations, the development of rational bureaucracies,
industrialization, universal adult suffrage,
and the welfare state. But the experience
of colonialism sees the existence of
a rational bureaucracy before industrialization. We see the bringing in of
universal adult franchise before industrialization
and the welfare state. So really, how we
think of theory, it changes when we look at
the practices of South Asia. And when we are thinking
about norms and institutions for other parts of the
world, perhaps South Asia is a richer space to explore
it than other regions because much of this
is ensconced in flux. And in a way, I would argue
that instability in some ways is actually a virtue, rather
than something to be decried. Because it allows for the
generation of new norms and it allows for those
who’ve been shut out of the constitutional
order to find a way in, to disrupt existing practices
and disrupt elite consensuses. So just very briefly,
I just wanted to raise a set of
questions that arise out of one central theme that’s
common to all the works and Nick referred
to it, which is the role the judiciaries
play in South Asia. And really a
methodological question about how do we read judgments. So as Pratap Mehta points
out, while we are theorizing how judges are behaving, and we
are theorizing judicial norms, it’s unclear the
judges themselves feel bound by this form
of normative theory. So what really
are judge bound by and what do judges
think of when they are actually making decisions? The second, again, I
think Nick referred to as an institutional
practice, is that when we talk about judiciaries
in South Asia, we’re not talking about a group
of judges who remain in place for an extended period of time. Judges often sit in panels. So a constitutional
judgment is decided often by three judges of the Indian
Supreme Court or the Pakistani Supreme Court. And judges often have very short
terms in the Supreme Court. So the Supreme Court is in some
ways a rotating group of judges who cycle in certain
panels and leave very soon. So how do you then discern
a judicial philosophy that is not linked to
a particular individual and is not explicable by
a particular individual’s class or ideological biases? Lastly, I like to think– again, this comes through the
Bangladesh people most clearly, is the kind of political role
that judges begin to play. So Bangladesh formalizes
this by essentially saying the chief justice runs
the country as a caretaker when elections are being held. But more recently, when we look
at both Nepal and, I’m sorry, both Pakistan and
Sri Lanka, we see that the courts,
the chief justices have become sites of
attacks, and judges are moved by political
masters, in one case a general, in the other case a
popular president. And in both cases,
the chief justices come back, often on the
shoulders of a powerful lawyers movement, where lawyers
take to the streets, engage in civil disobedience,
and assert for the rule of law to come back, where
the rule of law is defined as a particular
chief justice who will come back and take up office. So I want to close
again by saying that this is an enormously
important and provocative book, not just for thinking
about South Asia empirically, but
thinking about what is it that comparative
constitutional law should do more broadly. MARK TUSHNET: Thank you. I just want to say a
few things in response to these extremely
generous comments, and then open it up for
discussion with the audience. First, there are a series
of comments about the nature of the regional inquiry here. And there’s an
interesting question about whether
regions are in fact coherent objects of inquiry
for a comparative enterprise. There are works on East Asian
constitutionalism, and now this South Asian
constitutionalism and Latin American constitutionalism. And it’s not clear
to me that there is much to be said about those
with one exception, which is that it’s my interpretation
of the literature with respect to every region,
again, overstating it, what happens is that there
is a local, call it hegemon. That’s not exactly
the right term, but a local dominant nation,
which strongly affects constitutional understandings
or constitutional identity in the other nations
of the region, sometimes by
emulation, sometimes by what Kim Shapley calls
aversive constitutionalism. So in East Asia, constitutional
identity is shaped by the fact that we are not China. And in Latin
America, it’s shaped by we need to get out from
under the United States. I’m not sure how much more
can be said about this kind of thing, particularly when
you take into account the now well-established
proposition at the policy level and the constitutional
level that the primary– if you take a
constitutional provision in nation A, the primary– and try to measure
its similarity to constitutional
provisions elsewhere, the index of similarity
will be highest for neighboring countries. There’s a phenomenon of
diffusion that occurs. And so, which
doesn’t tell you much about the system in
the national systems, that is tied to the
interest in methodology. I’m a case study kind of person,
not a quantitative person. But these indices of similarity,
once you take the diffusion into account, are useful. I actually had the
library’s– thank you again– statistical consultant
do something for me over the summer to generate
a word cloud about three Latin American constitutions. And you look at
the cloud and it’s actually quite
interesting, different from what you get with a word
cloud of the United States or the Canadian constitutions. So there is stuff to be
done along those lines. Just one last observation about
courts, both Rohit and Nick raised questions about courts. Here is a thought that I
derived from these materials and also David Landau’s
work on Latin America. The thought is that
my terminology here is going to be a little
messy, but the thought is that in thinking about
courts, what you need to do is think about
comparative capacity within the national
institutional order. So, what Landau talks
about is the growth of judicial power in Colombia,
because on his argument, the political parties are
unable to organize policymaking. And there’s a need
to get policy made, so comparatively, if
the parties can’t do it, then the courts will do it. My other example actually comes
from the Pakistani experience. And this is a sort of snarky
but not entirely inaccurate way of saying it– the reason for the attraction
of the courts in Pakistan was that although the
courts were corrupt, they were less corrupt
than anybody else. And so if you’re looking for
something fairly decent, not decent, but better
than the alternatives, courts were an OK place to go. I think that kind of internal
comparison of, as I say, governing capacity is likely to
be a productive way of pursuing the comparative enterprise. OK, so with that,
I will moderate your questions or comments. Yes. Do we need the– yeah. This is for purposes
mostly of recording, because I know you can
project well enough. AUDIENCE: Thank you, professors. This was a very interesting
talk and I had the opportunity, thanks to Professor Tushnet, to
read some sections of the book over the past couple of days. I really liked your
comments, Professor Robinson, about the shared identity of,
as far as, I’m from Pakistan. And I think at least from
Pakistani jurisprudence and Bangladeshi
jurisprudence, there is a sort of shared
constitutional identity between India, Pakistan,
and Bangladesh, because Pakistan and Bangladesh
tend to cite Indian Supreme Court and even high
court judgments are quite a lot in both
the high courts and the constitutional courts
and, sorry, the Supreme Court. And I was actually surprised
to know that in India they don’t have registries
for the Supreme Court like we have in all the
provincial capitals. That’s an interesting
thing for me to learn. The most striking
comment for me however, was that of Professor Rohit De
when he said that instability, you said, that
instability provides a way in for the
downtrodden to find a way into the political system. And I think that’s one
place where this book fails. Because the authors of the book,
particularly Professor Mohammad Waseem and Professor
Siddique have failed to take into account the
contribution of Chief Justice Chaudhry in instituting
the human rights [? sale ?] of the Supreme Court of Pakistan
and of his expansive use of Article 1843, of the
Constitution of Pakistan, which provides for the original
jurisdiction of the Supreme Court to issue writs
against the government. Even before he was– even before the whole
lawyers movement took place, he took at least
11 suo moto notices in his first six months. And he also issued the judgment
in the [INAUDIBLE] case which completely stopped
the rise of Islamism in the country, which would have
gotten much worse than it would otherwise happen later on. And also it doesn’t
take into account the fact that a number of
very positive developments took place on the
judicial legislative front in the acid violence case
and the [INAUDIBLE] case, where rights were
granted to transsexuals, and the [INAUDIBLE] case, where
social welfare obligations and royalties with regards to
exploration production– oil exploration production
companies were enforced upon the government. None of this is taken into
account by those two articles, because they’re
basically written from a position of privilege. And I think there’s a lot
of space to explore that. And they also have failed
to take into account a very expansive volume of work
on this subject, which was produced about one
year before this book. And I think that’s
one area which could merit greater
exploration, particularly in context of the work of
the Indian Supreme Court, which is perhaps even more
activist than the Chief Justice Chaudhry and his successor,
Chief Justice [INAUDIBLE]. And also Chief Justice
Chaudhry in particular provides a study
of what you said is lacking in the Pakistan
Supreme Court and the Indian Supreme Court in the sense
that he had eight and 1/2 years as Chief Justice of Pakistan. Well, take out the two
years that he was deposed. Still, six and 1/2 years as
Chief Justice of Pakistan in which study of the
jurisprudence of one particularly dominant
judge can be provided from a perspective,
which be perhaps more unbiased than those
given in this book. Thank you. MARK TUSHNET: Thank
you for the comment. You’re obviously accurate
in reading the contributions about Pakistan. They do come from people who
are skeptical about the exercise of judicial power. And that in itself may
be of some interest. So Pratap Mehta’s paper is
also skeptical in the context of India. And one question to be
explored is sort of about, call it the intellectual history
of these kinds of writing. And in particular for me,
whether that those perspectives are I’ll say unduly
influenced by US constitutional theorizing,
where I would sort of want to trace who’s citing
Alexander Bickle on the contramajoritarian
difficulty, which dominates my way of thinking about
US constitutional law, but may well be,
I mean I know it is inappropriate
in other contexts. So I don’t know. ROHIT DE: If could
just add, I think Professor Tushnet makes
a very interesting point about thinking about
intellectual inferences of those of us who do
comparative constitutional law, and also how ideas
change over time. So one of the things
that struck me was– and this is something
I wasn’t aware of– today in India there
is a general consensus among scholars at least
that India’s basic structure doctrine, you know you might
quibble about how it’s used, but the doctrine itself is
something to be proud of, something to validate,
something to keep up. But reading, I think,
Sujit Choudry’s piece points out that when the
judgment actually came out in ’74, some of the most
progressive scholars in India wrote pieces denouncing a
usurpation of judicial power against democratic forces. And I think that
also helps explain what’s happening in Pakistan. So I think at least from reading
Mohammad Waseem and Osama Siddique’s pieces, they
also gestured to the fact that while Justice Chaudrhy
was able to reinvent the court post-2007, it
also obscured the fact that the court and
Judge Chaudrhy himself was complicit in the past
with many of the things that today he was critical of. So for example, judicializing
the coup in 2001. So I think some
of that narrative comes out of a
skepticism about– but that’s when you
also get caught up in the immediacy of politics and
maybe looking at this 20 years later, when you see what the
actual impact of Chaudrhy 2 is, maybe one would evaluate
this area differently. MARK TUSHNET: Do you
want to say anything? NICHOLAS ROBINSON:
Yeah, I’ll just add in there, in
terms of migration of constitutional
ideas– and I think you’re right to point
out that Pakistan and Bangladesh do cite India. They do cite each other. Although Bangladesh
has this, when it’s citing Pakistani judgments,
it’s changed over time and again, sometimes
it’s reacting against Pakistan because of
the history that’s been there. But one thing that I’ve
noticed just from spending a bit of time
teaching in Pakistan, a bit of time in Bangladesh,
and even less time and in Sri Lanka and
Nepal, is at least in terms of the
interpretation of India, comes to this really
kind of filter, kind of one-dimensional
view of what’s going on. So an example of
that, I remember talking to some of my
students in Pakistan about the right to food
case in India, which for those of you who
don’t know, is perhaps one of the biggest social
and economic rights cases in the world. Where the Indian Supreme
Court, over a series of orders over
many years, really gets into the structuring
of major social welfare programs in India. And one of the things
that was striking to me in discussions with people
in Pakistan about this was the lack of appreciation for
the large kind of civil society movement behind this, how
this fits into Indian politics more broadly. And that if you just looked
at the newspaper accounts or if you just look at the
orders were even worse, you’d get a very
kind of skewed vision of how judgements are
being interpreted in India in these other countries. And I do think,
besides the judges talking to each
other some extent and reading each
other’s judgments, one of the other places
this is happening is some of the social
activist groups, although not as
much as you’d think, do have some communication
amongst each other, so some of the groups
involved in kind of public interest litigation
in these different countries. And one of the
earliest books that I know of that’s kind of an
edited volume across South Asia is looking at public interest
litigation in South Asia and kind of the– but again, it means if you look
at public interest litigation, it ends up meaning very
kind of different things and each of these contexts. And part of that’s like a
misunderstanding and part of that’s an adaptation. ROHIT DE: This gentleman. MARK TUSHNET: Oh, yes. AUDIENCE: Thank you very much. You spoke about
unintended consequences. I just wanted to
link this to one of the ideas Upendra Baxi
has spoken about the way post-colonial
constitutions in Asia, and I think
elsewhere have tended to be more structural and
less justice-pursuing. So structurally
in the sense that issues to do with separation
of powers, division of powers, federalism, and so forth
are overrepresented in those constitutions. And as a result,
therefore, he suggests that, I wonder
whether that would be one of the sources
I know that you spoke about the
sources of instability. Number two is, in terms of
[? state ?] formation in Asia and elsewhere, like
in Africa, there is a Pakistani
scholar who has spoken about the overdeveloped
administrative state, the sense in which the administrative
state preceded the political state. And by that I think he compares
the Americas, for instance, that before you had the
formation of the constitution, there had been all
these processes that were political and democratic. So I wonder, to
what extent in terms of that historical legacy,
the overdeveloped state is perhaps also
one of the causes of this unstable
constitutionalism? ROHIT DE: I think you’re
right on both grounds, except that I think
one of the things that South Asia shows is how a
lot of the structured elements get infused with justice,
with meanings that one would attribute to justice. So it’s interesting
that, I mean, I saw a little bit of the
Nepali constitutional drafting thing working with some of the
constitutional assembly members and one would have assumed the
contentious questions would be things like gay rights
or sexual autonomy for women and things like that. All of that seemed to have
passed without any demur. What they really got stuck
on was naming of provinces and sharing of taxation powers. Because what was essentially,
what seemed to be, a straightforward administrative
structural question, was actually a question of
accommodating ethnic minorities in the south and within
the larger structure. So the debate was often framed
in technical structural terms, but there was a larger question
of regional or community justice that was tied to it. The second bit is
also how, you know, the Indian Constitution
is very long and wordy and it has everything in
it, including references to the auditor general,
which is essentially a bureaucratic figure
that audits accounts. But over the last
10 years, and this comes through Pratap
Mehta’s article here, the auditor general
becomes a figure who is holding the government
to accountability, and in a way destabilizes in some ways, just
the auditor general’s report destabilizes the
last government. Because he’s able to show
that not only is there actual corruption, there
is sort of massive losses that the state incurs
because of corruption, which becomes a public figure. So I think the distinction
we make between structural and justice based is
not limited and there is possibilities of change. On your second point, I think
that’s absolutely right. And that’s partly
why some of these– the administrative state
preceding political society is one of the reasons why
many of these situations remain unstable. MARK TUSHNET: So, I just
wanted to make one comment. And it’s about the
limitations of my perspective, and it is that I don’t find
myself well-positioned to talk about neocolonialist legacies. Partly it’s a
matter of, I’d say, nervousness about the
North-South critique, that I am from the North and
the critique of neocolonialism should at some level
come from the South. But it’s also a lack of, I don’t
know what the right way is, facility or comfort
in talking about that. On the, I just want
to agree with you and Rohit about the importance
of the administrative state preceding the constitutional
state or the political nation. That seems to me just
absolutely right. It’s also, again from
my point of view, it’s not the way I
think about things. But it’s clearly true. Just an anecdotal level, I
don’t want to generalize, but it’s the kind of
thing that drives home the significance of this. I’ve been to Pakistan once,
for a 10-day teaching exercise. And as part of
it, the organizers took us to a number
of institutions to meet people in
the institutions. And at one of them, we had
lunch at the training school for high level military
people who were going to be in high level military. It was like the Raj. I mean it was just– it just felt like India
in, as I understood it to be India in 1925, except
it wasn’t British aristocrats and bureaucrats who were in
charge, it was Pakistani. But the social
relations were the same as I imagined the
relations in 1925. Anything else? OK. So we’ve run through our hour. ROHIT DE: There’s someone there. MARK TUSHNET: Oh, yes. Sorry. AUDIENCE: I think there
are two questions. The first one is, in
India, you mentioned right to food and the
movement around civil society and bringing in socioeconomic
sort of rights based acts. It also was an interpretation
of Article 21, right to life. And it’s very
broad-based, this thing. And I’m not a lawyer. But I’ve spoken to
a lot of people, just I come from the
economic side, trying to understand of sort
of the principles that drive the interpretation
of right to life. And it’s a fairly– the ambit is just wide. I mean I mean I want some
principles that guide it. Which sort of brings
into mind this concept of unstable constitutionalism. It just keeps growing. So one is that. And the second one is something
about the federal sort of structure. We’ve seen this churn
going through almost all of the countries. So I would like to know
your viewpoint about how we see the constitutions
evolving, or just the dynamics. MARK TUSHNET: OK. So I’ll just say a couple of
things about each of those. One is the right to
life, from the point of view of a comparative
constitutional scholar, one of the most
interesting things about the development
of Indian doctrine of socioeconomic rights
is the interpretive way that the Supreme
Court got there. As people may or
may not know, there is a set of socioeconomic rights
in the Indian constitution, but it’s in a separate part
of the constitution, which, as a matter of original
understanding, although it turns out not as
a matter of text, was supposed to be
non-justiciable. And then the Indian
Supreme Court said, well, there is this
justiciable right to life and all the stuff that’s in
these directive principles can be interpreted as
implementing the right to life. It’s a very interesting
interpretive move. The Indian structure is based on
the Irish constitution of ’37. In Ireland they
didn’t do that at all. The text in Ireland
is a little clearer in foreclosing justiciability. On the basic structure
doctrine and unamendability, which Rohit mentioned
as something that is admired in India,
there are origins elsewhere, but the notion of a judicially
enforceable doctrine of unamendability is
an Indian contribution and has spread extremely
widely around the world. There’s now a, not enormous, but
a quite substantial literature in comparative
constitutional law on the idea of unamendability,
of which the basic structure doctrine is a subset. It has been now generalized. And the literature is
interesting in its attempt to accommodate if
at all possible, the ideas originating
in India with, cal it, core democratic theory. Now the Indian Supreme
Court has done a lot to push for really
rather deep consideration of serious foundational
issues of constitutionalism. OK, so we will stop now. I want to thank
you all for coming. SUZANNE WONES: On
behalf of the library, I’d like to thank
Professor Tushnet and– [APPLAUSE]

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