Podcast on Comparative Constitutional Studies – Law School Policy Review

Introduction To The Personality 

Zainaba – Welcome to our podcast. Today we have with us Dr Dinesha Samararatne, who is a constitutional law scholar and an Attorney at Law. She is currently teaching at the Department of Public and International Law at the University of Colombo, Sri Lanka.  She was appointed to the Constitutional Council of Sri Lanka as an independent expert in 2023. Her work focuses on the development of public law, public participation in constitution making and comparative methods in constitutional law. She is further involved in research in fields such as administrative law and human rights law, where she has published widely. This podcast will focus on her recent work with regard to Comparative Constitutional Studies from within the Global South. We are very honored to have you in our podcast, Dr. Samararatne.

Dr. Samararatne – Hi Ayishath, very happy to be here. I look forward to having a conversation with you on this topic.

Ayishath Zainaba – Alright, lovely. We’ll start right off. For our first question, what led you to approach Comparative Constitutional Studies from within the Global South? How do you think a special focus on the Global South can benefit the study of Comparative Constitutional Studies as a whole? 

Dr. Samararatne – As you would also appreciate, Ayishath, when we study law as South Asians, we always begin by acknowledging that historical experience through which we have received modern law. So the law, at least in some ways, has been complicit in the project of colonialism. And as people who live in South Asia, we know that history continues to have its impact today. In fact, I often say in my classroom that one of the enduring legacies of colonialism is the law. At least in Sri Lanka, and I know also in India, we still use many of the legislations that was introduced during that time. 

This is not to pass judgment and reject those laws, it is just our lived reality. So, I think from my student days onwards, and in learning to develop my research skills, I quickly began to be sensitive and mindful of what many other scholars and lawyers in the Global South had already been thinking about and writing about, which is the focus on what has been described as the usual suspects – leading jurisdictions in the world developing theory out of that experience, and then using it elsewhere without doing the necessary work to translate that theory to the elsewhere – wherever that elsewhere may be.  

Of course, my own entry into Comparative Constitutional law happened at a time when people also started writing more distinctively about it. Philip Dan and others’ work on the global south and comparative constitutional law has ended up becoming a turning point in this conversation. So reading that introduction was actually a very significant moment in my own intellectual journey. It affirmed to me that these concerns that I had were not only shared by many, but also ready for theorising. So that’s, I think, how I got more concretely into this debate and conversation from an intellectual perspective.

So on your second question about how a focus on the global south can help us. First of all, there are many ways to answer it. But I’ll try to give you an answer that tries to capture many of the subpoints to this conversation.

One, and this is important, I think scholars and students who are dealing with issues in relation to constitutional law in the global south, whether they’re living in the global south or not, feel seen and heard and recognised. And as much as that seems like a secondary outcome, I think it’s an important outcome that scholars who work in the Global South or work in relation to the Global South feel seen and heard.

But getting more concretely into our intellectual endeavours, speaking in distinct ways about the Global South helps us to do two things. One, it helps us to bring that experience to the table, again, in clear and definitive ways. And the moment we do that, we are also then able to begin that process of theorising from the global south, which is why I developed Philip Dan’s idea and sort of emphasise on the words from and within. Because not only do we then account for our own experiences in the global south, but we also can then begin to look across the global south to other jurisdictions and engage in south-to-south comparison as well. 

So to summarise, I think there are at least three main advantages or benefits. One is that anybody who’s working in this area feels seen, recognised and heard. Second, it helps us to bring the Global South experiences into the discussion in a clear way. And when we do that, we are also able to theorise from the experiences of the Global South. And they are not only are we looking at distinct jurisdictions, but we are also able to compare across the Global South without having to always refer to the Global North as a point of reference.

Mrigank – When it comes to your work on the Global South, do you believe that people from the Global North approach it in a fundamentally different manner? What could be some implicit biases that people from the Global North or people with privilege may have when aiming to understand constitutionalism in the Global South? 

Dr. Samararatne – This is a very difficult question to answer, Mrigank.  Because terms like bias, privilege, positionality cannot be described in easy terms. Whatever we say about our positionality, whatever we say about bias, or privilege has to always be qualified several times over. So I’m very mindful of that. As much as I work with the categories of Global North and South, I always try to make it clear that there are limitations to these categories. And that it’s only by being sensitive to those limitations that we can have a meaningful, helpful, and, if I may also add, a respectful conversation on this topic. 

So with that kind of disclaimer, let me say that to the extent that a scholar is, let’s say not from the Global North, but working on issues that arise in the Global North, and I come to the whole question of positionality at the end, will have, I think, we are generalising, but there are certain ways in which their attention is focused on issues that I think are different to the issues that someone looking at the Global South would be looking at. 

And again, I think it’s a logical difference. Our experience of colonisation is different. We both experienced colonisation, but in different ways. The current distribution of population, economic power, military power is quite different. The way climate change is impacting us is different. So if we subscribe, and I do, to the idea that our context and our experience shapes the way we approach our intellectual work, then it, I think, logically follows that we can say that there is a difference because we are focusing on, largely speaking, different sets of experiences. 

Now, on the question of where the scholar is from, I think it’s fair to say, in comparative constitutional law, that most of the work that we look at in the English-speaking world are produced from places in the Global North. These scholars may identify as being from the Global South or not, but they’re produced in the Global North. So we have had that problem for a while. I don’t think that makes the work less relevant or less meaningful. Ultimately, the measure of our intellectual work is whether it conforms to the standards that we have subscribed to as an academic community. 

But that is where, in this draft chapter that I shared with you, I also try to bring in the dimension of the scholar as a person who is engaging in this work. And I think we have to account for that and have a conversation about that as well. And the last thing I would say is most of the colleagues that I work with are from the Global North, or placed in positions of privilege in the Global North. Without their support and solidarity, I couldn’t be doing the kind of work that I am doing where I am. That’s a given. So rather than seeing ourselves as being here or there, I think it’s far more useful to see ourselves as part of a community, informing each other’s work through our own work. 

On this question of privilege, my view is that I may be a scholar in the Global South, not privileged relative to my colleagues in the Global North, but in my own society, extremely privileged. So we really, I think, have to be very self-conscious when we use these terms about bias and privilege and be self-reflective of how we are also contributing to it and part of it as well. Feel free to ask any follow-up questions if any of it was not clear. Thank you.

Mrigank – Yes, Professor, that was very interesting and I think this brings me to my next question very well. So when it comes to more generalising terms with respect to constitutionalism, so terminology such as “Asian constitutionalism”, where certain scholars categorise constitutional practices based on “Asian” values that are common to certain countries, do you believe that such terms can be descriptively useful terms or could such terminology have graver implications or be overall harmful?

Dr. Samararatne – Again, a very important question and one that is also very difficult to answer. So I think one of the themes that are now being drawn out in our field is the theme related to ideology that informs constitutionalism as a concept. I think it’s fair to say that in the mainstream we almost assume that liberalism is what informs constitutionalism, but so many of us are doing different types of work through which we are questioning that assumption.

This is not to say that scholars are not committed to certain values in constitutionalism. I think if most scholars are committed to the value of limited power of government, accountability, judicial review, etc., and that’s in terms of value commitments. But in terms of our intellectual work, we have to be able to study what constitutionalism means in different contexts. And when we are seriously pursuing that goal is when we come to these terms such as “Asian Constitutionalism” or “Buddhist Constitutionalism” or “Socialist Constitutionalism”, etc. And now there are so many different words that are used to qualify constitutionalism. So that is not so much a normative project, but a project through which we try to understand what constitutionalism means.

Again, it’s complex because you have to navigate the politics of these terms. Whether when you recognise and study a particular form of constitutionalism, are you also endorsing it and prescribing it? That brings us back to that earlier point I made about always trying to check the academic rigour of our work and the intellectual objectives of our work. When we work as scholars, we have to set ourselves up for the task in a very clear way. So is my task to understand, let’s say, in the Sri Lankan context, what Buddhist constitutionalism means? I then try to interpret it. But that doesn’t necessarily mean that I am going to be part of a political project, which advances a particular notion of constitutionalism, whether it’s informed by a very particular interpretation of Buddhism or a particular rejection of what is known as Western and therefore valorising the Asian, etc. I hope that’s helpful. I always find it very difficult to respond to this question, although I recognise its significance.

Let me also add another point. A lot depends on, again, the perspective. So when we say, let’s say, Asian constitutionalism, whose perspective are we thinking about? Is it that of governments, of political parties, of people, of scholars? And the moment we start probing those perspectives, I think the picture becomes that much more dynamic and colourful, and it becomes hard to essentialise these terms.

Ayishath Zainaba – Thank you for that response, professor. That brings me to the next question. You talk in your piece about methodological nationalism. So could you explain more about what you mean by it, what you think the implications of it are, and how alternative approaches work better for the field of comparative constitutional studies?

Dr. Samararatne – Yeah, thanks. So in the chapter, I say a little bit more about this, but basically, this is my way of reminding ourselves that in law, and very obviously in constitutional law, the state is the focus, and it’s almost always the unit of analysis. But again, we live in a region where the moment we look past the state, we also begin to see so many other interesting continuities and discontinuities.

So if you take, for example, fundamental rights in South Asia and the different approaches to fundamental rights in our different courts, how that travels within South Asia, we begin to see the dominance of Indian jurisprudence in the region. And it’s very rare for the Indian Supreme Court to cite other South Asian jurisdictions. So when we look beyond the state, I’m not sure that’s the best example I could have taken from constitutional law, but we see these different connections.

The other important aspect, and one on which I haven’t really done much work on is the connections between people. We see them travelling across borders, creating certain continuities and discontinuities. I mean, looking at it from Sri Lanka’s perspective, the state of Tamil Nadu, and the connections, historical connections, and linguistic connections that it has with Sri Lanka is just one example. But if you also look at the issue of refugees, displacement, etc., we see that. So then we also begin to see questions about citizenship, statelessness. We see the connections between international law and constitutional law.

So, I do think that while we use the state as our primary unit of analysis, it is always useful to be self-reflective about the ways in which it can sometimes hide the lived experiences that we are studying about. In terms of alternative methods of studying constitutional law, I hope the examples that I cited help us to think differently. So, instead of using Sri Lanka as my unit of analysis, is it possible for us to talk about South Asia and the evolution of constitutionalism? Is it possible for us to study in more intentional ways how international law is impacting constitutionalism? So, part of the work that I’m currently trying to do is to show how programmes run by international organisations, such as the IMF, can really impact this idea of sovereignty and constitutional supremacy. And then to do that, sometimes if you look across to other jurisdictions, it can be helpful to see how these phenomena are. 

Mrigank – Professor, more on your programmes with relation to how the international law and constitutional law can intersect, my follow-up question is quite related to that. When studying fields that require the intersection of constitutional studies with fields such as international law or private law or investment law – you gave an example of your work on Sri Lanka’s port city as well in the chapter that you shared with us –  how do you approach such research when it comes to intersecting fields of law?

Dr. Samararatne – So, again, it’s the fact that I was confronted with this development in Sri Lanka that led me to ask some of these questions. So, in terms of how you do this kind of intellectual work, one important way to do it is to work collaboratively. So, I am blessed in the sense that I have a wonderful colleague in the faculty, Dr. Dilini Patirana, who is an expert in investment law, and also someone who looks at China’s contribution to the field of investment law. And she, in turn, had an interest in public law. So, then we sat together and started thinking about these issues, bringing in the constitutional law and international investment law perspectives together.

So, in order to sort of explore what may be an unexplored area, either in your jurisdiction or in the field more largely, we do have to talk to people who are working in that area and try to find the interface. And when we started having those conversations, what became very clear to us is that there are certain ways in which these two fields interact, which create, I don’t want to say gaps, but create certain kinds of regimes which really undermine the commitments we make to constitutional supremacy. The standard example being – under the constitution, we are entitled to judicial review under certain conditions, of course, but under an international investment agreement, parties can go into arbitration when there’s an allegation that the terms have not been met.

And these two provisions in the two areas of law can create competing obligations, not just for the state, but also then cast certain kinds of burdens on the people. So, it’s the people who are impacted. If there’s a negative outcome from an international investment, people are impacted and they seek judicial review, and maybe they get relief. But if there is an arbitration and the state concern has to pay compensation, it is again the people who are affected by it. 

But because these things happen in a particular way, it’s very difficult really for the people to exercise their agency. So, then we come back to theoretical questions like, Why a constitution? What does a constitution do? Why international law? Who does international law protect? So many different questions come up.  But just to sort of go back to that main question, sticky problems, I think, are best answered collectively. So, working collaboratively, I think, is important. 

Mrigank – Yes, professor. And more so in relation to the theme of all your earlier answers as well. So, when it comes to nations of the global south, such as India and Sri Lanka itself, that are largely affected by colonialism, do you believe that post-colonies have certain inherent burdens with respect to constitutionalism, as opposed to a country that hasn’t been colonised? And is there an impact of this on researchers or academics who are studying constitutional law?

Dr. Samararatne – It’s difficult for me to say “in comparison to those who may not be affected by colonialism”, because in the English-speaking world, everyone that you work with is impacted by colonialism, whether they were colonised or were the coloniser. So, in that sense, we are all impacted by it in different ways. So, there are, again, several answers that I can choose. I will just comment on a few.

One is this issue of language. Because of colonialism, if you’re taking India and Sri Lanka, English is the language of the law. And when I say English is the language of the law, I’m obviously speaking about how the privileged use law.

Let me just speak about Sri Lanka, because I think the case of India is perhaps even more complex. In Sri Lanka, our national official languages are Sinhala and Tamil. English is described as a link language. And that’s a very interesting choice of description. But in the law, essentially, what that means is that our case law is reported only in English. Our appellate courts almost always function in English, but our lower courts function in Sinhala and Tamil. So, over time, we have this very interesting interface between the three languages. Legislation in reality is drafted in English. But the legislation itself says that when there is a conflict between the Sinhala and Tamil version of the Act, the Sinhala version shall prevail.

But any drafter or legislator that you speak to will say that the working language of drafting bills is English. That is at the operational and practical level. But language obviously impacts our imagination, the way we understand the world, and how the world speaks back to us. So, if the elite and the privileged see the world through a particular language, and if other parts of our society see the world through other languages like Sinhala and Tamil, does it create certain gaps? Does it create difficulties in communication? 

So, if you think about different terms that we use in constitutionalism or in rights, when we translate them into our local languages, sometimes the meaning doesn’t carry the same way. It can carry in slightly different ways. So, I think that’s a serious issue and an issue which the field of comparative constitutional studies, I think, has not been able to deal with in a useful way. And I’m always sort of reflecting on this in my own publication. So, I publish in English. And I publish really for my fellow colleagues, because academics read academic articles, right? And I always think about how I bring this work back to my own community.

And to do that, it’s one thing to speak in our local languages about our own work. But if we are to also publish in some way for our own communities, we can’t do that as individuals. We need institutional spaces, institutional support, institutional recognition for this kind of work. In the case of India, I know some of my own colleagues like Surbhi Karu and Karun Kaitan are doing that, and others have done so as well. So, I think the question of language and law is one that I’m deeply mindful of in terms of how colonialism impacts today. 

Ayishath Zainaba – That was very interesting to hear, professor, especially how you consider how your academic work reflects in your own community. Another aspect that I found very interesting in your paper was when you spoke about three challenges while doing comparative constitutional studies. You talk about description, conceptualisation, and theory building, and you say that an aspect of this challenge involves the state of legal education. Could you elaborate more on this? What changes do you think could be made in the general approach to legal education?

Dr. Samaratne – I’ll speak on this in two different ways. One is the domestic level. One of the debates Sri Lanka is going through, again, is the medium of instruction for teaching law. In my own institution, up until last year, we taught law in English, Sinhala and Tamil. But when we switched from teaching in only English to Sinhala and Tamil we did not do the work that needed to be done to produce textbooks in Sinhala and Tamil. I also think we could have done better in terms of how we use texts in English when we taught in Sinhala and Tamil. Because of these failures when students were being taught in Sinhala and Tamil, I think it led to neglecting the development of the English language skills of those studying the law in Sinhala and Tamil. 

This led to the realisation that everyone needs to have access in English. As the latest developments in the law take place only in English, you need to be connected to the global community. There has now been a shift to teaching only in English, and in Sri Lanka there are two smaller departments who teach law who now only teach in English. Now when we do that, just like in the 1970s, we should have done more work to make material available in Sinhala and Tamil. Now we need to know how to bring in Sinhala and Tamil when we teach in English. How do we bring the thinking and the experiences that we find in Sinhala and Tamil into English.

Now, as we all know, you can’t disconnect law and language. They are intrinsically connected. Meaning-making in any legal exercise is closely tied to the grammar, syntax etc., – even the spelling and punctuation of a sentence. So then how do we meet this challenge? If we are to recognise that language is a collection of centuries of our lived experiences and cultures and the law is law in society, we have to connect these different worlds which exist in these different languages. That’s a domestic challenge we have. It’s connected to the international challenge. Most of the legal elite, myself included, obtain a postgraduate education elsewhere in the English-speaking world, which then shapes our skills, experience and perspective. Second, that perspective is often shaped by the usual suspects approach

There are many exceptions. The year before last year, I co-taught an intensive course at Weber Law School Masters programme. So there are universities trying to offer a global perspective to their postgraduate students. But by and large, the elite of the Global South get a particular training and in that there are also methodological biases that my colleague and friend Tarun Khaitan has raised the question over the excessive emphasis placed on judicial review and Courts largely driven by the American experience. In the last 3 or 4 years, we are shifting our focus to other institutions and aspects of Constitutional Law. So, when the Global North and its focuses are part of the legal education of the legal elite of the Global South, it furthers the gap that I spoke about earlier. So again, there is a need for conscious bridge building in the Global North by personnel who travel from the Global South to the Global North and then back. 

This is really not part of the question but I try to club this in, academic institutions and communities need to be mindful that the intellectual flow is from the Global South to the Global North. It is very rare for the flow to be in the opposite direction. So, centres of excellence are constantly attracting the best academics from the Global South. I understand why people leave the Global South but I think we can understand that, be empathetic but still also have this conversation about this uniflow of intellectual resources from the Global South to the Global North. 

Zainaba – That was a very enlightening response, Professor. Now we come to our final question of this podcast and this is a question I am very excited to ask you. As a member of the Constitutional Council of Sri Lanka, what challenges have you encountered with regard to exercising constitutional discretion and articulating your ideas to a political audience? 

Dr Dinesha Samararatne – Again, great question, I could probably take 3 hours to answer it in detail. I would say that professionally the work on the council has been the most challenging work that I have ever had to face in my professional life so far but if you take the difficulty aside and reflect on what I have learnt, I think there are four things I can say. 

One is that in this role one has to speak constitutional logic to restrain and rationalise the exercise of discretionary power but elected representatives come with the political legitimacy of the vote and they need to be confronted with this constitutional logic of restraint and rationalisation, which is quite hard and in many ways has helped me to relearn, almost on a weekly basis what a revolution the Constitution is. It is really just a paper but with the text that we find in this paper we claim to speak logic and rationalisation to political power that comes with the legitimacy of the vote of the people, extremely hard but it still does happen. 

The second scenario is slightly different and occurs when there is an intention to abuse discretionary power, how do you hold the line in terms of constitutional logic and commitments to Constitutionalism. Again extremely hard, it comes with a lot of risk, but experience shows of mine and so many others, consistently holding the line and holding on to the text and its interpretation can have an impact even if not in the immediate sense, in the long term. 

Third, building consensus is essential when you are working in public office. That requires skills that you are not going to learn from an academic article or a book. How do you talk to people who have different commitments and convince them that you should all identify and work under the commitments, we make to Constitutionalism

And then fourth, requiring reasons of my own self, first if I think a decision should be made in a particular way, why do I think so and can I put it on paper so someone else can read it and decide whether I am being reasonable or not. I need to be able to do that first. And then relatedly expect others to also give reasons whether they are my colleagues or not. It’s tough because when we hold positions of power and authority and responsibility I think our human nature pushes us to think that we really don’t need to be accountable, or even if you are accountable there is a limit and we don’t really have to go into too many details. So, pushing that line, first for myself and then for others is challenging but like I’ve said, as tough as it has been, I have really begun to love the law in a different way because I have seen its power in practice. It’s limited, I mean, of course, these are under certain conditions, without these conditions you cannot speak about the law having power, and I am speaking about a certain kind of power. I am not speaking about using that power to abuse the role but it is possible for Constitutionalism to constrain human activity. That’s one of the main takeaways from me of this experience. 

Zainaba: Alright, with that, we come to the end of this podcast. Thank you, Professor Samararatne for taking time out of your very busy schedule to talk to us. It was a very enlightening conversation.

Dr Dinesha Samararatne: My absolute pleasure.

Mrigank: Thank you, Professor. It was a great conversation.