Asanga Welikala, courtesy of South Asian History and Culture, 2015, vol. 6/5 where one finds Welikala’s review of A Political Legacy of the British Empire: Power and the Parliamentary System in Post-Colonial India and Sri Lanka, by Harshan Kumarasingham, New York and London, I.B. Tauris, 2013, 297 pp., (hardback), ISBN 978-1-78076-228-9. [Special lower priced South Asia edition (2014) available from Viva Books: http://vivagroupindia.com/frmBookDetail.aspx?BookId=10884&Status=N%5D
The comparative study of India and Sri Lanka – the only two uninterrupted post-colonial democracies in South Asia – makes for promising investigations in any branch of the social sciences including comparative constitutional law and politics. The convergences and the divergences in the two countries’ constitutional forms and traditions, the character of their democracies, their trajectories of post-colonial nation-building, the nature of the state, the contrasting ways in which they have responded to the challenges and opportunities of constitutional modernity, and for lawyers especially, the functioning of the two common law Supreme Courts, yield insights that are relevant far beyond South Asia. From the point of view at independence from the British Empire, the one is an improbable success as a secular, pluralistic federation and constitutional democracy; the other was the most promising prospect among the decolonising states which nonetheless deteriorated into conflict, authoritarianism and ethnocracy. The Indian republic rejected the monarchical forms of the British inheritance early, while ardently embracing its liberal democratic substance, whereas Sri Lanka, much later, repudiated both.
Harshan Kumarasingham’s book compares the reception of the Westminster model of government, with a particular focus on the executive branch, in India and Sri Lanka in the first decade of their independence. It combines the methodological approaches and substantive concerns of both political science and constitutional history. It is characterised throughout by meticulous archival research that adds a great deal of information to older treatments of this period by political historians, and by the author’s sharp eye for the telling as well as entertaining anecdote. The book is based on a well-constructed theoretical framework drawing upon the concepts of horizontal accountability and delegative democracy, critical juncture and path dependency, in explaining how these ‘Eastminsters’, i.e., the re-articulation of the Westminster model in the cultural conditions of these Asian polities, impacted on the historical trajectories of India and Sri Lanka in the critical immediate post-independence phase. Within this framework, Kumarasingham deploys an engaging style of writing and a competent handling of a vast amount of material to tell a fascinating and insightful story from which both scholars and general readers will learn much, including how the first decade of Eastminster shaped certain issues that became enduring constitutional concerns in these countries. In India, this concerns its endlessly complex and evolutionary federal system that has by and large succeeded against the odds in preserving democratic unity in diversity; and in Sri Lanka, its constitutionally unresolved problem of communal pluralism, which led to war in the past and may even lead to conflict in the future.
Kumarasingham’s aims in the book are threefold. First, the analysis of the local cultural conditions (by which is meant the political culture of institutional behaviour) in order to show the different values, styles, dispositions and imperatives of the two cases that re-defined the ways in which the Westminster system was implemented. This is particularly important given the highly ambiguous, flexible and convention-dependent nature of the system itself, and is central to the characterisation of the two cases in the discrete category of Eastminster. Second, an institutionally immanent analysis of how the system’s checks and balances functioned within the cultural context of Eastminster, with the focus on the actors within the executive (i.e., the prime ministers and governors-general/titular presidents). This is where Kumarasingham’s highly detailed primary research is especially visible. Third, the consideration of a major issue of path-dependent resonance during the immediate post-independence period – federalism in the Indian case and communalism in the Sri Lankan – which analyses how the Eastminster institutional form and the political behaviour of executive actors that it encouraged, shaped these issues of longer historical significance.
The book is structured in nine chapters. The first sets out its theoretical framework for analysis and comparative assessment of the two cases in the light of the dictates of the overarching Eastminster model. Chapters 2-4 deal with India in terms of the three aims described above, while chapters 5-7 address the Sri Lankan case in the same way. These are the most detailed chapters, and as mentioned before, they constitute the core of the book’s strength in terms of original archival research. The last two chapters provide a detailed comparative discussion of the two cases in the light of preceding discussions, and conclusions. While the author maintains a scrupulous scholarly detachment and judgement throughout the book, in these final observations one might detect a certain partiality to the Eastminster model, in which the shared Commonwealth heritage of constitutional values is tempered in implementation by local culture and needs. It is difficult not to share this prejudice, for as he says, “India and Sri Lanka for all their rhetoric and denunciation of the Westminster legacy, still have Westminster blood in their constitutional veins.” (232)
In conceptualising the idea of Eastminster, Kumarasingham has given us a new theoretical tool that is useful not only for historians but also for contemporary political analysts and constitutional designers. In furthering our understanding of the culture, origins and dynamics of executive behaviour in Eastminsters, it provides a basis for more contextualised analysis and therefore better-informed approaches to reform. In the Sri Lankan case, for example, current debates on the reform or abolition of the (rightly) much-maligned executive presidential system are striking for the assumption among reformists that a return to a parliamentary executive is a panacea for most if not all its constitutional ills. Eastminster and Kumarasingham’s broader historical discussion should serve to sharpen the focus of these debates, in particular to ensure that the malleable nature of the Westminster executive does not inadvertently replace presidential authoritarianism with the ‘elective dictatorship’ that Lord Hailsham decried in Britain.
The book’s focus on the executive however does not mean that its insights are confined to that particular institution. Scholars of political leadership, tradition and modernity, nationalism and ethnicity, democracy and democratisation, liberal and political constitutionalism, federalism and unitarism, should all find something useful in Kumarasingham’s discussion. It also should be of interest to those beyond South Asia, especially to public lawyers, political scientists, and historians of the broader Commonwealth. In this regard the publication also underscores a critical point: that comparative constitutional law, and Commonwealth comparative constitutionalism in particular, has much to gain from the consideration of these Asian cases and that there is a solid pedagogic case as to why the field must be broadened beyond the narrow focus on what Peter Oliver described as the ‘well-behaved’ dominions of Australia, Canada and New Zealand, in addition to the UK itself. To extend the metaphor without necessarily endorsing it, it is precisely from the bad behaviours displayed in some of these cases that we might learn some of the most valuable and counter-intuitive lessons for democratic constitutionalism, as constitutional law becomes an ever more globalised and pluralistic enterprise.
Kumarasingham’s elegant book also represents in many ways a resurrection of the tradition and field of ‘constitutional history’, which used to be the dominant method of understanding institutions, law and politics in the English-speaking world (classically represented by Maitland and Bagehot, but including Perham, Wight, Mansergh, and even Jennings, as well as the late Granville ‘Red’ Austin, the great biographer of the Indian constitution, who died in July 2014). In the past few decades, this approach has been denounced as elitist and ideologically loaded, and inadequately attentive to broader social, cultural and economic forces and ‘subaltern’ interests. Its lucidity and candour has been equated, speciously, to a lack of depth, nuance and substance. In relegating the old tradition, however, what has happened all too often is that incomprehensibility and arcane particularism are now seen as signs of profundity and scholarly rigour. We must of course acknowledge both the limitations of the old positivist approach as well as the obvious value of more sociologically focussed or culturally hermeneutic approaches to history, politics and law. But it would be an arrogant fallacy to think that accounts of institutions, elites and leaders have no relevance to how we understand the evolution of states, nations and constitutional systems. In other words, transactionalism has its place, if only we know how to use it wisely. Kumarasingham’s book, emulating the seemingly effortless mastery of materials, the stylish presentation of issues and arguments, and even the understated humour that marked the work of those older constitutional historians, but with a more rigorous foundation in analytical theory, is therefore a pleasant reminder not only that this tradition is yet alive, but also that it has much to offer us still.
Asanga Welikala: ESRC Teaching Fellow in Public Law, School of Law, University of Edinburgh
Lord Mountbatten, the last Viceroy of India, salutes the Indian flag as Lady Edwina and Prime Minister Jawaharlal Nehru look on. – Pic from QuoraThe first day Indian Constituent Assembly on 11th Dec, 1946 –Pic from Wikimedia
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