Borrowing and Transplant in South Asian Constitutionalism: Comparative Analysis

Authors : Zobayer Akon, Asm Mahmudul Hasan, Md. Minhajul Abedin Chowdhury Chowdhury

Pages : 149-196

Doi:10.26650/ppil.2023.44.1.13062158

View : 35 | Download : 37

Publication Date : 2024-08-21

Article Type : Research Paper

Abstract :The study at hand positsthatthe phenomenon of constitutional borrowing and transplantin South Asia is evidentin both big-C and small-C constitutional frameworks. Thistextsubmitsthat the demonstration ofshared constitutional features encourages borrowing through constitutional similarities. The journey of constitutional formation in South Asia following decolonisation is frequently infused with global commitment to rights. The growing significance of international law and globalisation has contributed to the upsurge of constitutionaltransplants as a trend in South Asia. The presentresearch illustrates how the rise of judicial activism in favour of welfare for average citizensin South Asia functions as a precursorto the adoption of constitutional borrowing. The assertion is put forth that when extra-constitutionalism takes hold, the constitutional behavioural patterns in thisregion remain homogeneous. Therefore, lending and borrowing occurin two distinct ways: plausibly and abusively. Several factors, such as colonial legacy, legal education, and the active role of constitutional experts in the workflow of constitutionmaking, contribute to the increase in constitutional borrowing and transplantation in South Asia. This argument proposesthat the consideration of context specificity is imperative in the study of comparative public law and should not be brushed aside. Simultaneously, judicial art that considers globalisation is more beneficial to justice than parochialism.
Keywords : Anayasal Ödünç, Uluslararası Anayasacılık, Kanuni Nakil, Kamu Yararı Davaları, and Güney Asya