Unstable Constitutionalism

This book examines constitutional law and practice in five South Asian countries: India, Pakistan, Sri Lanka, Nepal, and Bangladesh.

This book provides a fascinating analysis of a single jurisdiction, Brazil, and accounts for both the successes and the failures of its most recent constitutional project, inaugurated by the Constitution of 1988. It sets out the following aspects of the constitutional development and erosion: - the different phases of the promised transition from military rule to a 'social-democratic constitutionalism'; - the obstacles to democratisation derived from the absence of true institutional reforms in the judicial branch and in the civil-military relationship; - the legal and social practices which maintained a structure that obstructed the emergence of an effective social-democracy, such as the neoliberal pattern, the acceptance in the political field of unlawful organisations, such as the milícias, and the way the digital revolution has been harming the formation of democratic sovereignty. Situating Brazil in the global context of the revival of authoritarianism, it details the factors which are common to the third wave of democratisation reflux. Accounting for those aspects, particular to the Brazilian jurisdiction, it shows that there is a tension in the Brazilian constitution. On the one hand, such constitutionalism was renewed by democratic pressure on governments to undertake social politics since 1988. On the other hand, it retained authoritarian practices through the hands of diverse institutions and political actors. By exploring the ideas of constitutional erosion and collapse, as well as democratic, social and digital constitutionalism, the book presents a comparative analysis of Brazil and other jurisdictions, including the United States, South Africa, and Peru.

Examines the political dynamics of constitutional review in hybrid regimes in the context of China's Special Administrative Regions.

This book makes the radical claim that rather than interpreting the Constitution from on high, the Court should be reflecting popular will--or the wishes of the people themselves.

Examines of the rise of constitutionalism from the "democratic strands" in the works of Aristotle and Cicero through the transitional moment between the medieval and the modern eras.

This book analyses the equal citizenship claims of women and sexual and gender diverse people across several Asian jurisdictions. The volume examines the rich diversity of constitutional responses to sex, gender and sexuality in the region from a comparative perspective. Leading comparative constitutional law scholars identify 'opportunity structures' to explain the uneven advancement of gender equality through constitutional litigation and consider a combination of variables which shape the diverging trajectories of the jurisdictions in this study. The authors also embed the relevant constitutional and legal developments in their historical, political and social contexts. This deep contextual understanding of the relationship between sex, gender, sexuality and constitutionalism greatly enriches the analysis. The case studies reflect a variety of constitutional structures, institutional designs and contextual dynamics which may advance or impede developments with respect to sex, gender and sexuality. As a whole, the chapters further an understanding of the constitutional domain as a fruitful site for advancing gender equality and the rights of sexual and gender diverse people. The jurisdictions covered represent all Asian sub-regions including: East Asia (Japan, Taiwan, Hong Kong and South Korea), South East Asia (Malaysia, Singapore, Philippines and Indonesia), and South Asia (India, Nepal, Pakistan and Sri Lanka). The introductory framework chapter situates these insights from the region within the broader global context of the evolution of gender constitutionalism.

This book examines a selection of themes that have become salient in contemporary debates on constitutional democracies. It focuses in particular on the experiences of India and Germany as examples of post-war and post-colonial constitutional democracies whose trajectories illustrate democratic transitions and transformative constitutionalism. While transformative constitutionalism has come to be associated specifically with the post-apartheid experience in South Africa, this book uses the transformative as an analytical framework to transcend the dichotomy of west and east and explore how temporally coincident constitutions have sought to install constitutional democracies by breaking with the past. While the constitution-making processes in the two countries were specific to their political contexts, the constitutional promises and futures converged. In this context, the book explores the themes of Constitutionalism, Nationalism, Secularism, Sovereignty and Rule of Law, Freedoms and Rights, to investigate how the contestations over democratic transitions and democratic futures have unfolded in the two democracies. It offers readers valuable insights into how the normative frameworks of constitutional democracy take concrete form at specific sites of democratic and constitutional imagination in Dalit and Islamic writings, as well as the relationship between state and religion in the writings of public intellectuals, political and legal philosophers. The book also focuses on specific sites of contestation in democracies including the relationship between sovereignty and citizenship in post-colonial India, free speech and sedition in liberal democracies, questions of land rights in connection with economic and political changes in contemporary contexts, and the rights of indigenous communities with regard to international conventions and domestic law. Given its scope, it will be of interest to students and scholars of political theory, political philosophy, comparative constitutionalism, law and human rights.