Post-colonialism is a complex landscape riddled with conflicting ideas, particularly when confronted by unfamiliar guests like constitutionalism and human rights. Constitutionalism, encompassing governance structures, power legitimization, and notions of justice and rights, becomes a battleground for different perspectives on development and autonomy, presenting narratives of authority and resistance.
While commonly associated with written constitutions, constitutionalism extends beyond the text itself, challenging the idea of writtenness in two significant ways. Firstly, unwritten conventions and practices resist explicit codification, forming an unwritten constitution that often overshadows the written one. This leads to situations like “constitutions without constitutionalism.” For example, executive war powers may override explicit constitutional constraints, or constitutional dictatorships legitimize power through written devices while operating outside the specified constraints.
Modern constitutionalism’s history exposes growing imbalances between domination and resistance, especially during colonialism’s heyday in Europe. Postcolonial societies’ constitutionalism highlights the limitations and criticisms of liberal thought’s achievements.
During colonial rule, imperial powers focused solely on governance, disregarding fundamental rights for the people. Challenges to this authority were deemed acts of rebellion and betrayal. The concept of “justice” and “development” in colonial legal systems served imperial domination, being paternalistic tools. While early forms of constitutionalism emerged during colonial insurgency, they were mainly for governance, not safeguarding people’s rights.
It is crucial to differentiate constitutional forms and ideals from colonialism as they were always separate entities. The enactment of a constitution marked a significant historical shift away from colonial influences.
Yet, colonial legal cultures did impact certain aspects of constitutions, with civil law and common law traditions influencing governance structures. The context of the Cold War also shaped Third World constitution-making practices, leading to significant differences between liberal bourgeois and revolutionary socialist constitutionalism:
Liberal constitutionalism emphasized private property rights, while socialist constitutionalism celebrated state ownership of all property.
Political representation in liberal constitutionalism was based on class domination, while socialist constitutionalism focused on representing workers, peasants, and masses through the Party.
Adjudication in liberal constitutions was relatively independent, while socialist constitutions tied it to the Party and the State, serving a pedagogic role in constructing the new socialist human persona.
Socialist constitutionalism emphasized citizens’ fundamental duties, whereas liberal constitutionalism focused on their fundamental rights.
These distinctions influenced governance structures, with socialist societies exhibiting gulags and rule-of-law societies dealing with repression such as McCarthyism, racism, and patriarchy.
The rivalry between superpowers during the Cold War militarized ex-colonial states, impacting human rights in those societies. Both capitalist and socialist imperial hegemonies influenced the context and content of constitutionalism in decolonized nations.