Formal Presentation HUMR 5110
Asad Durrani
Tentative Outline
Who wants to ratify another convention? Constitutional enforcement of Human Rights: A case for Constitutionalism.
1. Introduction and background
1.2 Thesis Problem
1.3 Assumptions/Suppositions
1.4 Research question
1.5 Scope and purpose of this study
2. Background to the problem
2.1Constitutional and political legacies of the two states
2.2 Constitution making experiences in the two states
2.3 Constitutionalism as a tool for rights enforcement
3. Some thoughts on Methodology
3.1 Study of case law from India and Pakistan
3.2 Comparative method of law
3.3 Interdisciplinary approach
4. Preliminary Conclusion
5. Bibliography
Who wants to ratify another convention? Constitutional enforcement of Human Rights: A case for Constitutionalism.
1. Introduction and background
States are the primary entities protecting and enforcing the rights of the individual. In this context a question of critical importance is through which national mechanisms, institutions and procedures states actually enforce and internalise human rights norms? This is primarily done through legislative, executive and judicial procedures. Though most states are part of a uniform international system for human rights enforcement they still display great difference in their respective human rights records at the domestic level.
Of the many means adopted by states for rights implementation at state level constitutional enforcement or rights has gained great importance recently. In Post Communist Central and Eastern Europe over two dozen new constitutions with provisions for rights implementation have been drafted since the early 1990s. Constitutional development has also been feverish in Africa with new constitutions drafted for more than one dozen states in the past fifteen years.
As spelled out above many of the new constitutional projects, including those constitutions which have now been around for some time, have incorporated human rights norms packaged according to their interests and outlooks. The level of success that have been achieved so far in these constitutional projects are as varied ranging from utter failures to very inspirational cases[1].
This difference in rights standards is most peculiar in the South Asian region where India, Pakistan and Bangladesh show varied standards of human rights records and increasingly divergent trends in their legal and constitutional practices. The South Asian region though having an overall common historical ethos is variegated with cultural, religious and social diversity. This diversity is also reflected to some extent in the political and constitutional systems which have evolved over the last hundred years in the eight states that comprise the region today.
1.2 Thesis Problem
My original ideas on the thesis topic were revised after some discussions with my supervisor. From an original proposal which undertook to explore rights implementation at the national level primarily from a constitutional perspective at the same time enriched with political theory and further infused with perspectives from sociology it has now been trimmed down to a study in the constitutional implementation and protection of rights. Thus leaving me utterly confounded and nearly lost in an area of legal doctrine which is extremely vast and complex. At this stage in the research process I have been able to formulate my problem statement as under:
What should be the ideal constitutional structure required to ensure that rights are protected in a given state. In addition what other associated political principles are necessary as corollaries for the constitutional system to function effectively and ensure the maximum security for basic rights. Further why are some states with all the trappings of a well embellished constitutionl order unable to maintain good humanrights records.
Though this formulation of my research problem might suffer for being some what descriptive, at this point in the research process I have not been able to reconceptualise my central idea inorder to produce a completely original work. I hope that that will happen as I progress.
I will assess the risks associated with this project of ‘importing’ a liberal constitutional model on to states whose populations are not culturally, religiously or ethnically homogeneous. I will also try to explain why some of the bills of rights that are incorporated into modern constitutions are not worth the paper they are written on. And of course I will conclude that the compatibility of human rights norms with alternate political systems such as a monarchy, military/benign dictatorship, single party rule or theocracy is very limited in scope and at the very best would yield compromising results
1.3 Assumptions/Suppositions
My questions concerning enforcement of human rights at the national level and mainly through constitutional means which finds its basis in constitutional and political theories belonging to the Western liberal stream of thinking is based on a number of assumptions/supposition:
· Human rights are best protected through constitutional means by way of entrenched bills of rights.
· It is highly improbable that human rights can be secure in non democratic societies.
· Constitutionalism holds great potential for securing rights in states and societies of various shades.
· Constitutional models can be transplanted and expected to work effectively given that the right conditions are available for the transplant to take root.
· Cultural relativism as an argument opposing constitutionalism is not valid since modern states can not operate without formal constitutions.
1.4 Research questions
Here I have a list of additional questions which, some of which I might need discard as I progress with my project, are at the moment crucial for laying the basis for the thesis and a core forming a skeletal structure for the project. These are:
· Is there a real and significant difference between ‘constitutional rights’ as they are enshrined in bills of rights and international human rights as enumerated in various international conventions?
-Is the normative basis for the rights as packaged nationally and internationally the same?
-Do national courts construct constitutional rights[2] differently in their adjudication than the construction offered by the international human rights system?
· Considering that under international law states implement human rights on the basis of the principle of ‘subsidiary’ what could possibly be the effect of contradiction between judgments of national courts and interpretation of rights under international human rights system?
· What could possibly be the ideal model for a constitutional system for rights enforcement considering that constitutional structures vary from state to state and a search for ‘the’ most superior constitutional system might prove to be futile one?
· Can rights be secure under non democratic and non liberal political arrangements or in other words what is the relationship between democracy and human rights?
· What scope do human rights have under a constitutional system based on liberal Constitutionalism?
· Where civil society remains weak and repressed in many countries, should reformers put liberal constitutionalism low on their priorities?[3]
· How effective is the practice of ‘constitutional borrowing’ or ‘copying’ or ‘transplanting’ particularly in the case of states where the conditions are at variance with the state from where it originates?
· Is it possible to have constitutionalism without a written constitution?
· What is the relationship between ‘democratic theory’[4] and ‘constitutionalism’ and do they compliment each other and what is the nature of the strains and tensions between the two?
· Could ‘constitutional democracy’ be an ideal form of system combining a participatory political process with institutional restraints?
· What should be the system for authoritative interpretation of the basic law
1.5 Scope and purpose of this study
As stated above the thesis statement tries to grapple with a fairly broad theme on the theoretical level, however to make the project manageable the research will focus mainly on the constitutional developments in the South Asian region and there in on Pakistan and Indian as two case studies. There are various reasons why have chosen the two countries and relegated for the time being two major constitutional development cases of Post Communist Russia and Post Colonial Africa. This choice has been motivated by three reasons. First, I have a fairly reasonable knowledge about the constitutional and legal systems of the two countries. Second, both the countries have a more or less common legal and political background with numerous similarities. Finally, both the cases countries have over the course of fifty years developed very distinct bodies of constitutional jurisprudence and practices especially concerning safeguarding constitutional rights.
The primary focus for the study will be on the constitutional theory while on the periphery I will consideration the over all social, economic and political environment in which both the constitutional systems developed and took root.
2. Background to the problem
2.1Constitutional and political legacies of the two states
India and Pakistan emerged as independent states in 1947 as a consequence of the portioning of India by the British. Prior to independence the British India was ruled from Westminster, through a Viceroy and his council who represented the Crown, with no or little consent of the subjects. However towards the years preceding the partition of India legislative reforms[5] were introduced which allowed native Indians to participate, though in a limited way, in the legislative and executive affairs of the government.
The British Empire which was the supreme power ruling over India had been built on the vestiges of the once great muslim Mughal Empire. The population of the vast British Empire comprised of two major and distinct religious groups Hindus and Muslims. The British brought with them their Common law system however they allowed the different religious groups to practice their personal laws. Over the course of years the two groups had developed separate political and social aspirations and skills. These were also transmitted to the two independent states of India and Pakistan in 1947.
2.2 Constitution making experiences in the two states
The state of India was able to draft one of the longest constitutions[6] in the world in 1949 in just two year after independence. A chapter with a list of basic rights called ‘Fundamental Rights’[7] was added with a substantive content which one could find in most bills of rights. The fundamental rights are guaranteed against infringement through a right to under which an aggrieved person may petition the Supreme Court directly. [8]
Over the years the Indian Supreme Court has developed a comprehensive body of jurisprudence which securing rights for people against an abusive government and upholding the spirit of the constitution. In one of its most well known judgements[9] the Supreme Court placed the basic structure of the constitution beyond the power of amendment.[10] The Indian Supreme Court has over the course of years given numerous judgements protecting the various fundamental rights that are available to under the constitutional provisions of fundamental rights.
But the court has done this in a creative way. Through its judgements it has preserved the supremacy of the constitution and ensured that in the rule of law is maintained under the Indian legal system. For instance judicial review of state legislation and action is a key of principle of an order based on constitutionalism. The Supreme Court has safeguarded this element of the constitutional mechanism from being amended and taken away.[11] In addition in landmark cases like 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.[12]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.
In contrast to 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. 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. 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. Finally in 1973 the last and 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. The Supreme Court in Pakistan has followed a careful and conservative course. When faced with cases concerning abrogation of the constitution and dismissal of democratically elected governments by military dictators it has in most instances legitimised military intervention.[13]
The court instead of upholding the supremacy of the constitution has undermined it in its jurisprudence and allowed for the usurpation of the supreme law of the land. In these circumstances protection of enshrined fundamental is imperilled and the court desists in many cases to check and nullify governmental action where the government has made it clear that it court rule in its favour.[14] This trend caused severe damage to the democratic political process in the country. It does strike one as why and how two countries with more or less similar political and legal heritage could go on such divergent paths.
2.3 Constitutionalism as a tool for rights enforcement
In the case of India and Pakistan and India despite there being many similarities between the two systems the path that the two polities followed has very little in common. By this I do not mean that that India as a state has achieved its highest level of rights realisation.[15]The crucial difference is that they Indian state has adopted a particular constitutional system which sets apart from its neighbours and allows it to construct a state system sensitive to the rights of its people.
This system of Constitutionalism in my view is possibly the ideal system one can advocate for when we are confronted with questions of enforcing rights in states of various shades. The term Constitutionalism has been defined authoritatively any where, however a common understating in legal scholars does obtain about how the idea is understood. Louis Henkin has given a basic list for the contents of constitutionalism which are:
1. government according to the constitution