Constitution-making in Asia

Decolonisation and State-Building in the Aftermath of the British Empire

H. Kumarasingham, H. Kumarasingham

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317245094
• Edition: 1
• Topic: Historia
• Subtopic: Historia de la India y el sur de Asia

Britain's main imperial possessions in Asia were granted independence in the 1940s and 1950s and needed to craft constitutions for their new states. Invariably the indigenous elites drew upon British constitutional ideas and institutions regardless of the political conditions that prevailed in their very different lands. Many Asian nations called upon the services of Englishman and Law Professor Sir Ivor Jennings to advise or assist their own constitution making. Although he was one of the twentieth century's most prominent constitutional scholars, his opinion and influence were often controversial and remain so due to his advocating British norms in Asian form.

This book examines the process of constitutional formation in the era of decolonisation and state building in Asia. It sheds light upon the influence and participation of Jennings in particular and British ideas in general on democracy and institutions across the Asian continent. Critical cases studies on India, Pakistan, Sri Lanka, Malaysia and Nepal – all linked by Britain and Jennings – assess the distinctive methods and outcomes of constitution making and how British ideas fared in these major states. The book offers chapters on the Westminster model in Asia, Human Rights, Nationalism, Ethnic politics, Federalism, Foreign influence, Decolonisation, Authoritarianism, the Rule of Law, Parliamentary democracy and the power and influence of key political actors. Taking an original stance on constitution making in Asia after British rule, it also puts forward ideas of contemporary significance for Asian states and other emerging democracies engaged in constitution making, regime change and seeking to understand their colonial past.

The first political, historical or constitutional analysis comparing Asia's experience with its indelible British constitutional legacy, this book is a critical resource on state building and constitution making in Asia following independence. It will appeal to students and scholars of world history, public law and politics.

1 Eastminster – decolonisation and state-building in British Asia¹

H. Kumarasingham

‘Vous l’avez voulu, George Dandin’ mischievously exclaimed the Soulbury Commission’s report in 1945, implying that their recommendation of the British parliamentary system was at Ceylonese instigation if anything went wrong. The report quoted French playwright Molière’s 1668 comedy Dandin and defended their counsel that Ceylon adopt a Westminster inspired constitution on the grounds that not only was it best suited for the island, but it was also appropriate since ‘the majority – the politically conscious majority of the people of Ceylon – favour a constitution on British lines. Such a Constitution is their own desire and is not being imposed upon them’.² Ceylon strolled towards independence on 4 February 1948 with an unabashed fervour for Westminster government. The Soulbury Commission dutifully served an institutional tiffin that satisfied in large measure the specific appetite of Ceylon’s elite. A republic would have been as welcome as an Indian invasion, and instead a unitary bicameral realm within the Commonwealth was established that self-consciously saw any other style of government as beneath the dignity of the Ceylonese elect. As such, the new constitution was generally deaf to the apprehension from corners in the Colonial Office, old Ceylon civil service hands and a few local lawyers of loquacious and argumentative tendencies. The result was that precious few alterations were made of the Westminster model for the context, complexities and conventions of Ceylon.

This system was more commonly associated with the British settler countries like Australia, Canada and New Zealand, where ‘kith and kin’ links with Britain seemed to make this appropriate. However, the British and the Asian indigenous elites saw advantages in applying this very British system to the very different context of the East. These Asian nations did not have centuries to interpret and adjust in order to develop their constitution as the British had. Instead within months they needed to formulate and design a constitution and therefore invariably drew upon the system of their imperial master. The local elites with the involvement of external actors like Sir Ivor Jennings determined that Westminster could work in the East. Since the Westminster system is based on convention and ambiguity and not rigid rules and clarity the same Westminster system could be adopted and manipulated to produce diverse results and reactions that would shape their countries forever. These states therefore became Eastminsters that consciously had clear institutional and political resemblances to Britain’s system, but with cultural and constitutional deviations from Westminster, five of which will be explored below.

This chapter focuses on Westminster’s trajectory through the Asian states of India, Pakistan, Ceylon, Malaya and Nepal when it tranformed into Eastminster. Analysis is centred on the period when these states adopted a parliamentary state modelled on the British example set at the colonial and metropolitan levels. The approach taken will be to understand much of the state-building that occurred through the work of Jennings.³ This Cambridge educated scholar advised all these states in their constitutional quests in the state-building period with the exception of India, where he instead acted in those transition years as a major constitutional authority and commentator. Jennings’ work on India was highly cited in those early years when few others existed from his vantage as a world famous English constitutional expert living and working in Asia.⁴ For India, Pakistan and Ceylon the key period observed was within the first five to ten years of freedom in 1947–1948. In Malaya Jennings was active with the Reid Commission leading up to independence in 1957,⁵ while in Nepal he worked for a short, but crucial time in 1958 in preparation for the Himalayan kingdom’s first general election in February 1959. Though Nepal was never formally under British rule it was nonetheless very much part of imperial interests in the region from the nineteenth century and can be designated within the British ‘sphere of interference’.⁶ Through the role of Jennings it is possible to gain a unique and comparative perspective of constitution-making and state-building in these key Asian territories. Jennings’ work by no means fairly or comprehensively covers how these processes worked, but as an individual he is exclusive in linking these states constitutionally with his first-hand experience of them during the era of state-building in the wake of the British Empire. Never before has a study constitutionally linked these states to understand their constitutional lineage with Britain during their quest to craft a parliamentary state. Part I of this chapter examines the scholarly importance and present gap in history, law and politics of examining the British constitutional legacy and Westminster model in Asia. Part II will place Jennings’ work and role in the region in context and Part III will outline five interrelated deviations the Eastminster model historically had from the traditional settler states.

Eastminster happened in a context when South Asian decolonisation captured international attention. India’s first ambassador to Washington, M. Asaf Ali, told the New York Times that his country’s independence was in the ‘spirit of the American revolution’ and for the benefit of his audience that the ‘battle cry’ of India’s revolutionaries was also, curiously enough, Abraham Lincoln’s everlasting and inspiring dictum, ‘Government of the people for the people and by the people’.⁷ The government in India was still very much, however, drawn from the British and not the American model. Woodrow Wilson had believed in 1884, at the height of the British Empire, that the Westminster model had become the ‘world’s fashion’⁸ and it remained so as the empire decolonised. Sir James McPetrie and Sir William Dale, as legal advisers to the Colonial and Commonwealth Offices respectively, recorded an enormous international appetite for Whitehall constitutional devices. McPetrie noted the ‘exceptional activity’ of the post-war era where, in the short period between June 1959 and June 1960 alone, 92 constitutional instruments were drafted by the Colonial Office for territories around the world.⁹ Dale wryly commented that very often the Colonial era legislation endured after independence since even though ‘there was a new emperor … his suit of clothes was far from new’.¹⁰

However, despite such activity there was no uniformity of approach even within regions. The 1956 colonial law of Loi Cadre dictated by the French metropolitan state, which provided a detailed institutional framework for an almost blanket application of major governance reforms across the French African empire would find no equivalent in the British decolonisation process in Asia or elsewhere.¹¹ The 1931 Statute of Westminster may have provided a critical constitutional milestone for the few settler dominions by clarifying their political independence, but with just four and half pages it could not, and did not, claim constitutional homogeneity, as the diversity of dominions and their individualist political temperament made any such attempt undesirable. Compared with continental cases the British Westminster model was malleable, moveable and mendacious. As Sartori assessed, unlike Britain most states could ill ‘afford the luxury of not formalizing their constitutions’ and observed that it was better to see the British constitution as ‘written differently’ than ‘unwritten’. British constitutionalism unlike its European and American counterparts was not meant to be ‘prescriptive’, but instead practical.¹² This analysis lends weight to the view that British ‘institutions prove themselves capable of adaptation to new conditions; and this arises in large measure from a refusal to define. The task of definition is left to academic lawyers who, being independent, are ipso facto irresponsible’. One of those ‘irresponsible’ academic lawyers and author of the above quote was Sir Ivor Jennings.¹³ The flexibility of the ‘refusal to define’ feature of Westminster allowed liberties and possibilities for the model to drift away from its moorings both geographically and theoretically leaving great scope for individuals to influence the constitutional character of their states more than any statute could. Jennings sought to explain why Westminster travelled East:

The one common characteristic of all these Constitutions was that they were all based on the unwritten British Constitution. This was a deliberate choice by the local politicians and it has, I suppose, several explanations. First, all the countries concerned had been under British rule, were familiar with British methods, and knew no other. Secondly, all the politicians concerned had been educated in British universities, or called to the English Bar, or educated in local institutions using an English ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• Preface
• 1 Eastminster – decolonisation and state-building in British Asia
• 2 British constitutional thought and the emergence of bills of rights in Britain’s overseas territories in Asia at decolonisation
• 3 Discretionary reserve powers of heads of state
• 4 A British misreading: Sir Ivor Jennings’ early assessment of the Indian constitution
• 5 Pakistan’s first decade: Democracy and constitution – a historical appraisal of centralisation
• 6 ‘Specialist in omniscience’? Nationalism, constitutionalism, and Sir Ivor Jennings’ engagement with Ceylon
• 7 Constitutionalism and the politics of constitution-making in Malaya, 1956–1957
• 8 Constitution drafting as Cold War realpolitik: Sir Ivor Jennings and Nepal’s 1959 constitution
• 9 Sir William Ivor Jennings: a centennial paper
• Select bibliography
• Index