This article was first published on 31 May 2013 in the New York Law Journal. The original is available here.
Sujit Choudhry last month returned from a trip to Tunisia with 16 members of the recently established Constitutional Transitions Clinic at New York University School of Law, which he directs. Tunisian protesters triggered the ‘Arab Spring’ of 2011, when they drove a 23-year president from office.
When the United States’ Founding Fathers met in Philadelphia in 1787 to produce what was then one of the world’s earliest written constitutions, they had few places to turn for advice. Choudhry hopes that the research produced by the NYU clinic will provide ‘back-office’ real time support to proliferating constitution drafting efforts around the world like those under way in Tunisia. The students journeyed there to discuss their research.
Born in Delhi and raised in Canada, Choudhry, 43, started writing in the late 1990s in the wake of the democratization of South Africa and Eastern Europe. In addition to his scholarship, he has provided advice in the field for constitution building in ethnically divided societies. The use of outside advisors in the effort has been controversial, but he argues that a nation can decide what its constitution should be ‘by using others as a tool for self-reflection.’
Studying pre-med at McGill University in Montreal, Choudhry became interested in the law after a summer internship in bioethics. He holds law degrees from Oxford, Toronto and Harvard. He taught at Toronto from 1999 until he joined NYU in 2011.
Q: Why did you feel there was a need for your Constitutional Transitions Clinic?
A: I have worked as a foreign constitutional expert for over a decade in support of constitutional transitions in a number of countries: Sri Lanka, Nepal, Egypt, Tunisia, Libya and Jordan. The idea for the clinic came from my work in the field. Here is a bit of context. Constitutional transitions are a pervasive feature of modern political life. Since 1978, 185 new constitutions have been drafted and adopted around the world. New constitutions are central elements of regime change and democratization.
Constitutional transitions draw freely on ideas and experts from around the world. Constitutional advisors are asked very sophisticated questions by local political actors and members of civil society, but do not have access to a research infrastructure on the ground—a library, student research assistants, fast Internet access—to easily access the relevant legal research that would enable them to provide effective advice in a quick and timely fashion. Moreover, the organizations that deploy foreign constitutional advisors to the field are limited in their ability to provide this support because they lack a standing in-house research capacity.
The idea behind the Constitutional Transitions Clinic is to serve as a ‘back office’ in New York, staffed by law students, to respond to requests from the field for focused research support. We are the missing link that enhances the effectiveness and efficiency of field missions.
Q: How does your clinic differ from traditional law school clinics?
A: We are the first clinic devoted to supporting constitutional transitions in the world. In that sense, we are unique. However, we are like many other law school clinics where students work on public policy projects. At NYU, for example, there are a number of other policy clinics—such as the Institute for Policy Integrity and the Center for Human Rights and Global Justice—where students produce high-quality, in-depth research reports that feed into the public policy process. What makes us different is our substantive focus.
Q: Does your clinic have clients?
A: Absolutely. Clients are indispensable to our work. One of the most important features of our work is that we partner with clients who are present on the ground, and who are directly involved in providing support to constitutional transitions. They have an acute sense of the dynamics of constitutional processes, know which issues are relevant and where foreign constitutional advice would be helpful (and where it would be unwelcome), and have direct access to key decision-makers to ensure that our clinic’s work gets to where it is needed.
Our current client is the International Institute for Democracy and Electoral Assistance (International IDEA), an international organization with 28 member states that is headquartered in Sweden. We are working closely with International IDEA’s regional office in Cairo, which operates programs across the Middle East and North Africa in Morocco, Libya, Tunisia, Egypt and Jordan. In addition to providing support for their constitutional activities out of our New York office, we are deploying summer interns to provide research support in their Cairo office. In effect, we have built them a research department.
Q: What skills do your students gain from the clinic?
A: This year’s clinical students are J.D.s and LLMs, drawn from 8 countries. The students are divided into teams, and have had to learn how to engage in legal practice in a global, multicultural environment, which will hold them in good stead in a variety of practice environments, whether they ultimately go on to do transactional work with global clients, serve abroad with the State Department, or work with the United Nations.
They also have learned about the role of a foreign legal expert in a national political process. Constitutional transitions belong to the people of the countries involved. Although they will make decisions based on their needs and political interests, they are usually very interested in the experiences of other countries.
In the Middle East and North Africa, for example, there is great interest in the lessons to be learned from other countries that have made the transition from authoritarian to democratic rule, such as Germany, Argentina and South Africa. Our role is to provide them with the best available information on the constitutional experiences of other countries, in a way that responds to their needs and concerns.
Q: You recently journeyed to Tunisia with members of your clinic. What did you do there?
A: Along with Katy Glenn Bass, who co-directs the Constitutional Transitions Clinic, I took with me a delegation of 16 students to Tunis in April. The clinic has been preparing a series of research reports for our client on three major constitutional issues facing the Middle East and North Africa in the wake of the Arab Spring—the design of constitutional courts, political party finance regulation, and systems of government that share power within the executive branch between a directly elected president and an indirectly elected prime minister (like in France). The teams presented their key research findings at a conference at the University of Tunis Al-Manar’s Faculty of Law and Political Science. The audience posed a variety of probing and challenging questions, and seemed particularly interested in how to make things work on the ground. Their questions both demonstrated the clear importance of the topics we had been asked to research, and suggested ways in which our reports could be further adapted to the current regional context.
The following day, a small group of us had the opportunity to meet with U.S. Ambassador Jacob Walles and Public Affairs Officer James Bullock at the U.S. Embassy. We then had the honor to meet with several Tunisian political actors, including a private audience with the president of Tunisia, Dr. Moncef Marzouki. A longtime human rights activist and political dissident, he wasted no time in throwing the floor open to our questions, giving his views on a range of matters, including how to select the members of the constitutional court, the role of transitional justice in the democratic transition, and political parties in the transitional context. In his answers, the president continually emphasized the need to involve all actors who are committed to a democratic system in the political process; to work across Tunisia’s religious, regional and economic divisions; and to strive for consensus in establishing the broad parameters of the country’s future political system.
Following our audience with the president, we went to the Council of Ministers’ meeting room for a discussion with the senior legal advisor to the president, Ahmed Ouerfelli. Ouerfelli presented the president’s initiative for an International Constitutional Court, which proposes the establishment of a mechanism of distinguished jurists to provide legal opinions regarding a state’s adherence to democratic standards, and answered our questions about the proposed court.
We were received at the parliament building that afternoon by three members of the Constituent Assembly, representing both the government and the opposition as well as religious and secular parties. We then had the privilege to spend nearly two hours discussing the constitution drafting process, engaging in a detailed discussion on the wide range of issues we have encountered in our clinic research.
Q: How far along is Tunisia in writing a constitution? Do you think it will be successful? Why do countries like Tunisia need outside advisors in constitutional building?
A: The Tunisian constitutional process is going relatively well. Following the fall of Ben Ali in 2011, the Tunisians held elections for a Constituent Assembly, which has been deeply engaged in the drafting process. Draft constitutions were released in August and December 2012, and again in April 2013. There is still disagreement on a range of issues, but the gaps have narrowed, and the competing positions have become very clear. Overall, I am impressed with the sophistication of Tunisian constitutional actors—their command of the technical legal issues is very good. My guess—and this is just a guess—is that if things remain on track, the Tunisians should reach agreement on a draft constitution by the end of 2013. The process has been inclusive and involves political parties from across the political spectrum, with no one party dominating the process. If the final draft of the constitution secures multi-party support, the chances of it taking hold are good.
Tunisians have looked to foreign constitutional advisors because many of the issues they are grappling with—for example, dividing power within the executive branch —are not unique to Tunisia. Our goal is to educate and inform, but not to advocate.
Q: Is a written constitution, like the one in the United States, a prerequisite to a successful democracy?
A: Almost all constitutions are written, and over time, they have become longer. Indeed, the U.S. Constitution is one of the shortest constitutions in the world. There are a number of reasons why constitutions are written and long. In transitional contexts, the constitutional process is a way for political actors who may distrust each other after past conflict to frame the terms of a new political bargain. Negotiating parties want to make sure they protect their interests in any constitutional pact, especially if they are uncertain about their future political prospects. Written constitutions are the best way to record a political agreement. The same dynamic has driven constitutions to become longer and longer over time.
Q: Has constitution writing flourished or faltered in the Middle East since the Arab Spring?
A: It is far, far too early to tell. We will probably not know for many years to come.
Q: Why were you personally attracted to the field of constitution building?
A: I fell into the field by accident. I won a Rhodes scholarship to Oxford, and I decided to begin my legal education there. I eventually ended up collecting law degrees from the United Kingdom, Canada and the United States. In addition, I spent a summer as a student working on constitutional issues related to the South African transition. At each juncture in this journey, I naturally brought my constitutional training with me from my previous education, and drew on it to better understand the problem at hand. After I began my career as a scholar of comparative constitutional law, I began to receive invitations to serve as a foreign constitutional advisor.
The best thing about being a law professor is the ability to bridge theory and practice, and to work with talented students while engaged in both. Being a scholar gives you a bit of critical distance, and the ability to bring the best research to bear upon a country’s constitutional problems. Working on the ground is the best way to test what we teach in the classroom and read in the library in the real world. My fieldwork has profoundly shaped how I think, write and teach about constitutional issues.
Q: Have your efforts been successful? Have you encountered frustrations?
A: The most important lesson I have learned in my work is the need to be modest and to understand your role. Every now and then, a foreign constitutional advisor may claim that she or he ‘drafted’ a foreign constitution. This statement is both imperial and naïve. It is imperial because as a foreign advisor, you are an outside participant in another country’s constitutional process. You support that process, and do not own it. And it is naïve because even if you propose language that ends up in a constitution, there is a difference between drafting and authorship. Constitutional negotiators know what is in their interest, and will not agree to language that does not serve it—they make the decisions, not you.
CT Clinic Researchers Present Reports at University of Tunis
(8 April 2013)