Constitutional Design in Plural Societies

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Following are some excerpts of the 13th Neelan Tiruchelvam Memorial Lecture delivered by Prof. Sujit Choudhry, Law Faculty Director, Centre for Constitutional Transitions, NYU School of Law

My principal task is to set out two of the major conceptual frameworks for constitutional design in plural societies, which have been termed integration and accommodation. The debate between these models has become as polarized as the ethnic conflict itself. These two models are currently at play in the Sri Lankan constitutional debates over how to fashion Sri Lanka’s post war constitutional settlement. After setting out what those models mean in practice for constitutional design, I want to suggest how we should move beyond the sharp dichotomy between integration and accommodation.

The first premise concerns the constitutional significance of plural identities. For integrationists, ethno-cultural diversity is a reality that cannot be denied. However, they relegate these identities to the private sphere, and do not give them any significance in the design of public institutions. The model here is the treatment of religion in liberal democracies. In order to prevent religious diversity from translating into political division, liberal democracies set out two constitutional principles,

non-endorsement and non-interference. Non-endorsement means that the state is religiously neutral, and has no official religious identity. Non-interference means that religious identity is a strictly private matter, with individuals free to choose their religious identities free from force or fraud within a framework provided by the rule of law. Integrationists would extend this approach from religion to ethnicity, race, and culture.

The second premise concerns the character of political competition, and emerges from pluralist accounts of democratic politics. The question posed by pluralists is why political actors who lose within democratic institutions do not respond to those losses by turning on the system itself and attempting to undermine it. The answer is the theory of crosscutting cleavages, which holds that individuals belong to a number of different interests and outlooks. Crosscutting cleavages have two moderating effects. First, because individuals are members in multiple social groups, they will come into contact with a multiplicity of perspectives, and will possess a complex set of interests, which will tend to moderate their political attitudes. Second, in the absence of sharp partisan division among individuals, political elites will face pressure to moderate their political positions. This account of the nature of political cleavages is closely tied to the case for a competitive model of democratic politics. On the pluralist view, politics is characterized by shifting coalitions and majorities, which change from issue to issue, and do not endure over time. Political parties compete for median voters at the centre of the political spectrum, which promotes moderation. The assumption is that parties will cycle in and out of government, as they assemble shifting coalitions of voters in their competition for the political center. Since there is no permanent exclusion of any segment of society from political power, the loser accepts this loss in the hope they will win another day.

Now let me turn to accommodation, which proceeds from twin premises that are direct responses to the foundational premises of integrationists.

First, integrationists claim that civic political identities are culturally neutral and that can serve as a common point of reference for members of different ethnic groups. But accommodationists counter that even in states that adhere to the integrationist credo, civic identities often privilege a dominant ethnic group. The principal source of evidence for this charge is a large body of historical and sociological research on the manner in which states have created overarching civic identities within specific national contexts. This practice is known as “nation-building,” and consists of public policies that promote a common language, a shared history and a shared culture, usually facilitated by the centralization of legal and political power. Nation-building emerged as a tool of political consolidation in Western Europe, and spread with the rise of nationalism to Eastern and Central Europe, and with decolonization to Asia and Africa. The theory behind nation-building is that citizens must identify with political institutions in order for them to agree to work within them and accept their decisions. A shared civic identity built around abstract principles of liberal political

morality will not be enough to generate this kind of bond. Those principles need to be rooted in a story of the national political identity. But accommodationists argue that nation-building can operate as a vehicle whereby a politically powerful ethnic group universalizes its particular identity. Perhaps the leading example is language, a common element in nation-building. Official language status operates to distribute economic and political power. If a group’s language becomes an official language, it has an immediate advantage in access to public sector employment, political office, higher education, and public services. Indeed, the accommodationist critique of official monolingualism sounds in the same register as the justification of those policies –a single official language can serve to impede democratic participation, social mobility, and administrative efficiency.

Second, plural societies often witness a breakdown in political competition that converts it from a mechanism to moderate ethnic conflict into a force that makes it far worse. The competitive paradigm of democratic politics depends on two assumptions—that opposition parties will eventually share power and that, because of the shifting nature of majority coalitions, governing parties will not abuse their power. But these assumptions do not hold in plural societies, because political mobilization occurs on the basis of ethnic identity, and political parties respond by organizing themselves on this basis. Ethnic political parties do not compete for median voters, and indeed, do not compete across ethnic divides. The precise consequences of the institutions of majoritarian democracy in plural societies will depend on the precise demography of the polity in question.

If there is a clear ethnic majority, the result is not a temporary minority that will eventually cycle into power, but a persistent minority that will permanently be in opposition and excluded from political office, and a permanent majority that will be free from the restraint that a future loss at the ballot box imposes on the abuse of power. Where there is no clear majority, coalitions of minorities can produce the same effect.

Minorities that are persistent losers with no prospect of wielding power may sit outside of politics and turn on the system itself, potentially through violence.

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Constitutional Design in Plural Societies

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