This Working Paper presents a framework for considering constitutional transitions that involve significant territorial cleavages. It is designed to assist political leaders, citizens and advisers engaged in a process of constitutional transition where the territorial character and structure of the state is an issue alongside other constitutional questions. Part of the Dealing with Territorial Cleavages in Constitutional Transitions project.
Publications Archive - Constitutional Transitions
Edited by Sujit Choudhry and Tom Ginsburg, Constitution-Making, collects some of the most important academic contributions on constitution-making. Focusing on a set of important case studies, yet also featuring classic articles on the subject, this volume is a critical assembly of theoretical literature. Ensuring wide geographic and historical coverage, and including an original introduction by the editors, this collection provides an essential overview of the myriad of circumstances in which constitutions can be made.
The Meeting the Challenges of Emerging Constitutional Democracy Working Paper Series is a resource for practitioners working in the field in countries undergoing constitutional transition and in new democracies where efforts are being made to consolidate the transition to democracy, and will also be of interest to scholars. The Working Papers in the series address the creation of constituent units and federal and politically devolved systems; semi-presidentialism; democracy without political parties; and minority rights.
Constitutional Transitions mobilized knowledge through an innovative clinical program at the New York University School of Law from Fall 2012 through Spring 2014 that provided “back office” research support to constitutional advisors in the field, and deployed faculty experts and field researchers for support on the ground -- the Constitutional Transitions Clinic. We met field missions’ needs for comprehensive research, dramatically enhancing their effectiveness and efficiency in their role as policy advisors and actors.
The Constitutional Transitions Clinic published six reports (in English and Arabic) jointly with International IDEA and (for three reports) the United Nations Development Programme on combatting corruption; constitutional courts; semi-presidentialism; political party finance regulation; decentralization, and oil and gas regulation:
- “Combating Corruption: Constitutional Frameworks for the Middle East and North Africa"
- “Constitutional Courts after the Arab Spring: Appointment Mechanisms and Relative Judicial Independence”
- “Decentralization in Unitary States: Constitutional Frameworks for the Middle East and North Africa”
- “Oil and Natural Gas: Constitutional Frameworks for the Middle East and North Africa”
- “Political Party Finance Regulation: Constitutional reform After the Arab Spring”
- “Semi-Presidentialism as Power Sharing: Constitutional reform After the Arab Spring”
This Report explores how decentralization in unitary countries can deepen democratic values, and improve the quality of life and human security in neglected communities. It addresses the benefits of decentralization to the MENA region and how constitutional incorporation of various principles can increase opportunities for decentralization and help improve standards of living. Prepared by the Constitutional Transitions Clinic.
This Report focuses on the relationship between oil and gas and constitutions. It addresses possible constitutional design options for the regulation of oil and gas resources to enhance accountability, transparency, fair distribution, and efficiency. Prepared by the Constitutional Transitions Clinic.
This Report considers the constitutional frameworks and mechanisms available to prevent and reduce corruption, with particular reference to the Arab region. It argues that most successful anti-corruption frameworks combine a number of preventive, corrective and restorative safeguards, and adopt a coordinated, rather than piecemeal, approach to the problem of corruption. Prepared by the Constitutional Transitions Clinic.
This Working Paper addresses the question of what role political parties generally play in democracies, and asks whether an electoral system can establish effective and democratically accountable government in the absence of political parties. The Working Paper identifies the democratic functions ordinarily performed by political parties in electoral democratic government, describes how parties are typically regulated in constitutions, and discusses constitutional design options for electoral democracy in which political parties play a minimal role. Part of the Meeting the Challenges of Emerging Constitutional Democracy Working Paper Series
The semi-presidential form of government offers a middle ground between “pure” presidential and “pure” parliamentary systems of government, and may for this reason be especially attractive to new or transitioning democracies. This Working Paper considers the options available for structuring the semi-presidential system under three headings: constitutional architecture; the distribution of executive powers; and security and emergency powers. Part of the Meeting the Challenges of Emerging Constitutional Democracy Working Paper Series.
How should cultural diversity be reflected in the constitutional and governmental arrangements of a country emerging from a history of dictatorial or oppressive government? Minority groups may seek special arrangements to protect their basic human rights as well as constitutional provisions providing specific rights to protect their cultural identities. This Working Paper considers a range of approaches to dealing with these questions during constitutional transition. Part of the Meeting the Challenges of Emerging Constitutional Democracy Working Paper Series.
Dealing with the Creation of Constituent Units in Federal and Politically Devolved Regimes: A Brief Guide for Practitioners
This Policy Manual sets out elements of analysis and questions that are intended to aid practitioners and advisers in addressing how to define or delimit constituent territorial units within federal countries. Part of the Meeting the Challenges of Emerging Constitutional Democracy Working Paper Series.
Federal and devolved systems of government are based on a territorial delimitation into political states, provinces or regions. This Working Paper looks at the experiences of over 20 federal and quasi-federal countries in defining new territorial regions or “constituent units”. It examines both the issues around defining constituent units during a period of constitutional transition as well as the rules that have been developed for the incremental creation of new constituent units once a federal constitution has been adopted. Part of the Meeting the Challenges of Emerging Constitutional Democracy Working Paper Series.
Semi-presidential government, if carefully designed, can act as a mechanism to promote power sharing and ensure that presidential dictatorship does not re-emerge in a post-authoritarian context. This report analyzes a range of options for designing a semi-presidential system, considering the extent to which these options can ensure: (1) limited presidential power, (2) an effective legislature capable of exercising oversight of the president and the government, (3) effective and meaningful power sharing between the prime minister and the president, and (4) presidential leadership in times of crisis. Prepared by the Constitutional Transitions Clinic.
Constitutional Courts after the Arab Spring: Appointment mechanisms and relative judicial independence
A constitutional court may play an important role in consolidating democracy after a constitutional transition, and it is important for this reason that constitutional courts are independent, yet accountable institutions. This Report investigates how constitutional court appointment procedures can promote both judicial independence and judicial accountability to a democratically elected government, analyzing four models of appointments as they are applied in six countries (Germany, South Africa, Egypt, Iraq, Italy and Turkey). Prepared by the Constitutional Transitions Clinic.
Political party finance law is the set of norms governing the income and expenses of political parties. Countries transitioning from authoritarian to democratic systems often grapple with questions of how to regulate political party finance in a way that both ensures political parties can compete effectively for votes during elections, while limiting the improper influences of clientelism, vote buying, business and the media. The key questions are what the ultimate goals of the system of party finance regulation should be; which rules will best reflect those goals; and when and how to implement reforms. Prepared by the Constitutional Transitions Clinic.
As Egypt underwent a tumultuous military-led transition from autocracy to democracy beginning in 2011, a chorus of commentators advocated a “Turkish model” for civil–military relations in Egypt’s nascent democracy. This article takes up the task of giving content to that elusive phrase, beginning with an account of Turkish military involvement in politics and ending with an explanation of the recent exodus of the Turkish military from politics. It offers observations and lessons for other nations seeking to normalize their civil–military relations. Part of the I•CON Symposium: Constitutional Transitions in the Middle East.
Constitutionalism is often understood to mean more than mere adherence to the formal terms of a constitution. However, with the example of the 1982 Turkish Constitution in mind, this article develops a theory of “authoritarian constitutionalism” as a system in which the constitution, rather than constraining the exercise of public power, is coopted to sanction oppressive uses of it. This suggests that constitutions do, in fact, “matter,” though not uniformly as a force for political liberalization. Part of the I•CON Symposium: Constitutional Transitions in the Middle East.
In contexts of democratization, the definition of judicial independence may require refinement, in order to take account of the special challenges of moving from the rule of the few to the rule of the many: an independent judiciary may stall legislative and constitutional reform by engaging in a form of constitutional review designed to shield elite preferences from democratic reversal. This article explores this problem through a detailed examination of a recent set of controversial constitutional cases in Turkey. Part of the I•CON Symposium: Constitutional Transitions in the Middle East.
This article contrasts the jurisprudence of Egypt’s Supreme Constitutional Court (SCC) construing the meaning of “shari’a” with the practice of ordinary Egyptian courts construing Egypt’s civil code. The article argues that a shift from the lower courts’ positivist outlook on law to the common-law style of legal reasoning deployed by the SCC would increase the Islamic legitimacy of Egypt’s overall legal system, facilitate Egyptian courts’ reconciliation with the constitutional commitments to Islamic authenticity, modernization and human rights, and assist in Egypt’s democratic transition. Part of the I•CON Symposium: Constitutional Transitions in the Middle East.
In recent years, a growing number of countries have adopted constitutional provisions requiring that state law be consistent with Islamic law (sharia). This article explores the trends that gave rise to “sharia guarantee clauses” (SGCs) and provides a history of their incorporation into national constitutions. It then surveys a number of the remarkably varied schemes that countries have developed to interpret and enforce their SGCs, and it considers the impact that different schemes have had on society. Finally, building on this background, the article considers what types of SGC enforcement scheme, if any, are consistent with democracy. Part of the I•CON Symposium: Constitutional Transitions in the Middle East.