On 3 May 2013, Constitutional Transitions’ Faculty Director Sujit Choudhry gave a plenary address at an international conference on the establishment of an International Constitutional Court. The conference was convened by Moncef Marzouki, President of the Republic of Tunisia. Creating such a court is an initiative of the Tunisian Presidency. The proposed court would serve as a check against the capture of democratic institutions, by an actor acting in blatant contravention of the existing constitutional order (e.g. a military coup d’état), or by an actor that has been properly democratically elected, but then uses the rules and institutions of the state to capture it and put an end to political competition and democratic rule. In either case, the beleaguered democrat has no effective recourse to the courts, as they will likely have been captured or otherwise lack the legal authority to reverse authoritarian actions achieved through legal mechanisms. The proposed court would serve as an international institution that can sit in review of a state’s constitution, laws, and actions for compliance with the essential features of democratic governance.
Professor Choudhry’s plenary address situated this proposal against the backdrop of existing international and regional mechanisms that address the risk of democratic capture. In his remarks, he briefly outlined the mechanisms employed by two international organizations: the Organization of American States (OAS) and the African Union (AU). Both of these organizations impose as a condition for states to remain members in good standing that the government not have come to power through unconstitutional, and in particular, undemocratic means. These mechanisms have been used in a large number of cases. Professor Choudhry argued that it was worthwhile to look at the experiences of these mechanisms for two reasons. First, we can learn helpful lessons that can shape the discussions over the establishment of an International Constitutional Court. Second, if an International Constitutional Court were to be established, careful attention would need to be paid to defining the relationship between the new court and these existing mechanisms.
Watch President Moncef Marzouki’s opening address at the International Constitutional Court conference (Arabic, English, then French)
Watch President Marzouki’s opening address at the International Constitutional Court conference
(3 May 2013; Arabic, English, French)