Nature of Constitutions in South Asian countries: A comparison

The Constitution of a country is regarded as the fundamental law of the land which
lays down a broad canvass to make laws, rules and regulations for organising
national life at both collective and individual levels. It’s often argued that
Constitutions are tailored in such a way that they succeed in defining how a country
examines its past, determines its present and foresees its future.
Constitutions of the member states of South Asian Association for Regional
Cooperation (SAARC) envision for a republican structure, with Bhutan as an
exception, to preserve the values of democratic principles.
The three democratic countries in South Asia—India, Nepal and Pakistan—have
federal constitutions, while the remaining five states adhere to unitary system of
governance. In other words, there is a clear-cut division of powers between the
federal and state governments in Nepal, India and Pakistan since they have federal
Constitution.

S.No. Constitution Nature

1. Afghanistan Unitary

2. Bangladesh Unitary

3. Bhutan Unitary

4. India Federal

5. Nepal Federal

6. Pakistan Federal

7. Maldives Unitary

8. Sri Lanka Unitary

 However, the nature of the Constitutions of Afghanistan, Bangladesh, Bhutan,
Maldives, and Sri Lanka is unitary—unlike the United States or India—where the
powers of the government are centralised in the Central Government.
What makes a Constitution federal?
Political scientists as well as legal pundits unanimously believe that a charter
establishing self rule within provinces and shared rule at the centre satisfies
conditions to be a federal constitution.
In this context, the Oxford English Dictionary defines federal as, “Pertaining to, or of
the nature of that form of government in which two or more states constitute a
political unity while remaining more or less independent with regard to their internal
affairs.”
Mode of federalism in different countries results in varying outcomes. For instance,
the United States has adopted a federal government with 50 states where the
residuary power is vested in states. Conversely, the residuary power lies in the
centre in South Asian federal states.
Five essentials
In any federal state, both centre and states cooperate and coordinate with one
another. Institutions are independent and ought to execute their respective powers
with mutual adjustment, respect and understanding. Despite this, it should
acknowledge the following essential characteristics:
Distribution of power
The distribution of power is the essential characteristics of Constitution of India,
Nepal and Pakistan. The basis of such distribution is that Centre is entrusted with
powers to deal with the matters of national importance while the matters of local
concerns are governed by the state or provincial units.

S.No. Countries No. of States

1.       India 29

2.       Nepal 07

3.       Pakistan 04
 
It may be noted that Nepal is yet to be restructured into provinces though 2015
Constitution envisages for seven-province federal model.
Supremacy of Constitution
These federal states derive their existence from the Constitution. Thus, every power
—whether legislative, executive or judicial—exercised by the state is controlled by
the Constitution.
Interestingly, Constitution is supreme law of the land in South Asian states.
Written Constitution
Unlike England, there is written Constitution in South Asian states.
Rigidity
The natural outcome of a written Constitution is its rigidity. In a rigid Constitution, the
procedure of amendment is very complicated and difficult. It means that the power of
amending Constitution should not remain exclusively with Central government or
State governments.
Still, an amendment can be made in Constitutions if the resolution to this effect is
supported by the two-third majority of the House.
Independence of judiciary
The legal supremacy of Constitution is essential for maintaining smoother functioning
of a federal system.
Scholars believe that the Constitutionalism could be maintained only when the
judiciary is accorded with due respect. Courts must be entrusted with powers to
prevent the federal and provincial governments from encroaching upon each other’s
powers. The Courts should have power to declare laws made by parliament or state
legislature void on the ground of excess of power. The Supreme Court should have
an independent existence and it must have the authority to say the final word in
matters involving Constitutional interpretation.
In this context, the South Asian Constitutions confer judiciary the last power to
interpret the provisions of Constitution.

Surprisingly, the unitary South Asian states of Afghanistan, Bangladesh, Bhutan,

Maldives and Sri Lanka also adhere to the supremacy of Constitution, distribution of
power, independence of judiciary, rigidity of Constitution and written Constitution.
Despite this, their respective Constitutional provisions are tailored according to their
specific needs and existing normative structure.
It’s accepted by all that centralisation of power, establishment of local government at
centre’s behest and single uniform administration make any state unitary in nature.

S.No. Countries No. of administrative Units

1.       Afghanistan 34 Provinces, (i.e., admin. Divisions)

2.       Bhutan 20 districts

3.       Bangladesh 8 Divisions, 64 Districts Councils

4.       Sri Lanka 9 Provincial Councils, 25 admin. Districts

5.       Maldives 20 districts

 
While introducing the institutions of parliamentary democracy, South Asian
Constitutions remind that the powers have been distributed not merely among state
organs such as executive, legislature and judiciary. The charters confer
extraordinary autonomy to Election Commission, Auditor General, or Human Rights
Commission, although they strictly perform executive or non-legislative functions.
Additionally, the centralising tendencies or Centre’s extraordinary role in issues of
national importance such as selection of Governor, declaration of emergency, or
parliamentary power to alter the boundaries of states make the Constitutions of
South Asian states—India, Nepal and Pakistan—quasi-federal in nature (as they
confer little power to States in certain matters of ‘national importance’ and deny to
acknowledge the purely federal provisions like that of United States, Australia and
Switzerland).
However, what is good for the United States may not necessarily be viable for India,
Nepal or Pakistan. It’s often said that the only difference between medicine and
poison is the dose. The people of a country can digest only the required doses and
the overconsumption may turn fatal (or poisonous) for them. Such may be the case
with importing Constitutional mandates of the US. Even in the US actual practice
always leans towards national interest, and so is the case in federations in South
Asia.
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