Sujit Choudhry on Today’s Political Climate: A Disintegrating Democracy

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Professor Sujit Choudhry is an internationally renowned scholar whose research addresses a wide spectrum of issues in comparative constitutional law and politics. This includes constitutional design as a tool to manage the transition from violent conflict to peaceful democratic politics, constitutional design in ethnically divided societies, federalism, decentralization and secession, semi-presidentialism, constitutional courts and transitional justice, official language policy, minority and group rights, bills of rights, constitutional design in the context of transitions from authoritarian to democratic rule; constitution building processes, security sector oversight and basic methodological questions in the study of comparative constitutional law. He has also written extensively on Canadian constitutional law.

His most recent publication is a book chapter that is planned for release in Constitutional Democracies in Crisis? In particular, Choudhry focuses on a tweet by Eric Holder, the former Attorney General under President Obama, that was published to his followers in December of 2017. In it, Holder called any potential termination of White House Special Counsel Robert Mueller an “absolute red line.” He also suggested that, should anything happen, peaceful demonstrations should ensue. “If removed or meaningfully tampered with, there must be mass, popular, peaceful support of both. The American people must be seen and heard – they will ultimately be determinative,” Holder wrote in his tweet.

According to Choudhry’s dissection of Holder’s tweet, the Attorney General’s call to action is based upon two concepts – one being the symbolic “red line,” or an uncontroversial constitutional boundary in American democracy, and the other concept being that Holder leaves it up to the American people to determine whether officials have indeed abused their authority and transgressed said boundary. What is more, Choudhry underlines that Holder insinuates that the reaction of the American people will determine how the issue is resolved – that is, whether the crossing of the red line will be upheld or reversed.

Choudhry points out that Holder’s tweet is built on the idea of “constitutional self-enforcement, built around the concept of a focal point.” And as constitutions are governing expectations of officials and citizens that revolve around the appropriateness of the behavior of public authority by focusing on focal points, or constitutional rules. Furthermore, violations of these constitutional rules does not warrant a court to label them as such, and Choudhry expresses a sense of surprise in Holder’s tweet. He writes, “Indeed, it is striking that Holder, once the nation’s chief law enforcement official, does not even mention a legal challenge to attempts to obliterate Mueller’s authority, even in a supporting role.”

According to Professor Choudhry, another example of a focal point is a presidential term limit that, in the United States and across the world, limits an individual to a total of two terms as president. He goes on to write that an autocrat would want to break that focal point – or constitutional rule – by attempting to stay in office for longer “declaring a state of emergency, dissolving the legislature, and/or suspending elections.  It is clear when this is happening, and more often than not, attempts to do will lead political opponents to mobilize against such attempts, and bring citizens into the streets.”

Choudhry writes that when taken within a specific context, Holder’s ‘red lines’ can be considered an example of a democratic failure. He further writes, “Disregarding term limits are one example of a more general category termed the self-coup or autogolpe, which is an attempt by directly elected executives to extend their power once elected, invoking a democratic mandate from the people.  Another is the outright unconstitutional seizure of power without any electoral legitimacy, in a coup d’état (for example, by the military).  A third is blatant electoral fraud by incumbents to maintain the façade of democratic legitimacy.”

The chapter is Professor Choudhry’s commentary on several aspects of the current political climate in the nation, specifically examples in the media and other places in the world that allude to a deterioration of constitutional democracy as well as the presidency as an autocracy. According to him, the threat to democracy has evolved since the Cold War. In particular, he focuses on the example of Poland’s Law and Justice Party, referred to it by its Polish initials, PiS, which a nationalist, populist and right-wing party that has won a legislative majority in the 2015 elections to Poland’s parliament, the Sejm. The government has since focused all its efforts on undermining the framework of Poland’s constitutional democracy in order to both eliminate obstacles to its rule as well as ensure its power in future electoral cycles.

Choudhry goes into great detail as he describes the threats that constitutional democracy has faced in Poland via the PiS. According to him, the first focus had been on Poland’s Constitutional Court as well as other ordinary courts. He collectively referred to them as “La Suite Polonaise,” to “capture that they are a series of distinct initiatives which nonetheless are components of a coherent strategy with thematic unity.”

He describes how new rules governing the constitution of panels, voting, the assignment of judges to cases, a creation of an Interim President, were all means by which a party through seemingly technical procedures in nature, rather than the ulterior motives that truly represent them, steered the Polish government in their favorable direction over the course of a year.

“Again, unlike a single, comprehensive constitutional amendment, the capture of the Constitutional Tribunal took place over a period of slightly over a year, at an uneven pace, with periods of intense activity followed by months of apparent inactivity,” he writes.

Choudhry also writes, “Indeed, they seem like housekeeping matters that fall within the scope of legitimate constitutional design and reasonable disagreement far from the shoals of constitutional capture.  And the objections to them are also highly technical: for example, the apparent circumvention of the Vice President of the Tribunal by creating an Interim President.” And yet they were small steps to an entire overhaul – a threat to constitutional democracy.

The next of several points Sujit Choudhry mentions as being threats to constitutional democracy is a term that was first mentioned by Nancy Bermeo, one that has increasingly replaced coup d’états and autogolpes. The term is ‘democratic backsliding’ or ‘authoritarian backsliding.’ This, according to Choudhry, is a situation “whereby a democratically elected government or president uses legal means to manipulate rules and institutions to remain in power in future electoral cycles, inter alia with respect to electoral system design, election administration, political party regulation, presidential term limits, civil and political liberties, and independent institutions such as constitutional courts and agencies.” Choudhry mentions that a classic example of this is the fall of Weimar Germany that was captured from within. He goes on to write that this shift from coup d’états and autogolpes to democratic backsliding is widely due to the changes in the international environment that accepts democracy to be “the only game in town” and that political legitimation can only be attained via democracy, even if only used hypothetically as a means to cover up undemocratic regimes. This, according to Choudhry is a degradation of democracy. “There is no binary, either-or distinction between democracies and autocracies with a bright line between them.  Rather, we have a spectrum of regimes along a continuum with democracy and absolute dictatorship at its poles,” Choudhry writes.

According to him, democratic backsliding has triggered several new terms, all of which have contributed to its “vexing ambiguity” as Bermeo argues. These include “illiberal democracies” (Fareed Zakaria), “competitive authoritarian regimes” (Steve Levitsky & Lucan Way), “defective democracy” and “electoral authoritarianism” (Matthijs Bogaards), all of which are shades of gray of the original. Yet Bermeo warns that “democracy is ‘a collage’ of institutions” that is “put together piece by piece, and can be taken apart the same way. In other words, rather than focusing “on clear cases of democratic collapse,” scholars of democratization must view it as “slow slides toward authoritarianism.”

“Less of a focus ‘on economic and institutional correlates’ and more attention to ‘choices and choosers’ is vital, because the latter ‘may be more amenable to direct influence and rapid intervention’,” Choudhry suggests, quoting Bermeo.

Choudhry finally discusses Poland’s capturing of the Constitutional Tribunal as an example of democratic backsliding and parallels it with the Eric Holder case in the United States, whereby Holder called any potential termination of White House Special Counsel Robert Mueller an “absolute red line” and he insisted that the American people must be seen and heard as they will be determinative in the end. Choudhry concludes that the American example is similar to the Polish one despite the fact that the US “constitution serves as the common reference point for political life, and constitutional argument is part of the grammar of politics, perhaps more than anywhere else in the world.”

“While the great American contribution to constitutional thought is the anti-positivist idea that even the most basic, seemingly uncontroverted constitutional claims are interpretative, in Ronald Dworkin’s famous formulation, that noble idea has been taken up by conservatives and liberals to turn the legal system into a terrain of elemental, total ideological struggle where there no longer few, if any, right or wrong answers at all,” the scholar finally writes.

Choudhry’s latest publication is a book chapter forthcoming in Constitutional Democracies in Crisis? from Oxford University Press in which he dissects and comments on several themes that are a reflection of the current political climate in the nation. He mentions examples in both the media as well as the world’s politics that point to a deterioration of democracy as well as the presidency sliding into autocracy. As he lists examples of the aforementioned, Choudhry mentions several countries and how their political climate is a threat to the fundamental definition of democracy – these include Poland, South Africa and Germany.

In the very beginning of the Chapter, Choudhry mentions a tweet that was published by Eric Holder, the former Attorney General under President Obama, in December of 2017. In it, Holder called any potential termination of White House Special Counsel Robert Mueller an “absolute red line.” He also suggests that, should anything happen, peaceful demonstrations should ensue. Holder wrote that, “If removed or meaningfully tampered with, there must be mass, popular, peaceful support of both. The American people must be seen and heard – they will ultimately be determinative.”

Choudhry discusses several points that are resonant of Holder’s symbolic “red line,” toward the end of his chapter, he gets to the ultimate “red line” of them all, namely a presidential impeachment. And while that is not a live issue in the United States, the Professor mentions South Africa’s urging for the impeachment of their President Jacob Zuma due to the allegations of his self-enrichment at the public’s expense. Zuma was exonerated by a report – commissioned by an ad hoc legislative committee – from the Minister of Police who is a member of his cabinet and who absolved Zuma of all liability. And while South Africa’s Court did find the aforementioned unconstitutional, on the question of impeachment, the Court demanded “legislators put the country before party.” And should President Zuma become at risk of impeachment, the National Assembly would come up with a new procedure that would ensure impeachment would be debated once more, Choudhry argues.

As a parallel, Choudhry mentions President Trump’s travel ban that is inherently based on an unconstitutional motive, namely anti-Muslim animus. And if that was somehow found to be unconstitutional by a court, would the government try to do as the National Assembly? Choudhry writes, “At some point, if a court finds the travel ban unconstitutional, the question will arise whether the government will try to promulgate another ban, which would likely be challenged again.  This would raise a difficult question: whether the governments subsequent actions are forever tainted by its earlier unconstitutional motive, or whether that taint could somehow be cured.”

Choudhry comes full circle in the end as he suggests that courts must call autocracy by its name if the people are to be seen and heard. He concludes the chapter with these thoughts: “Political mobilization may settle the issue. And so too for firing and crippling Mueller – if a court will call autocracy by its name, that will increase the chance that the ‘American people’ are ‘seen and heard’.”

Sujit Choudhry

Sujit Choudhry is an I. Michael Heyman Professor of Law at the University of California, Berkeley and a founding director of the Center for Constitutional Transitions. He is known all over the world for his extensive knowledge on politics and comparative constitutional law.

Choudhry has also been a constitutional advisor for over two decades. He is expert in facilitating public dialogue sessions with civil society groups and other stakeholders, leading stakeholder consultations, performing detailed advisory work with technical experts, training civil servants and bureaucrats, engaging party leaders and parliamentarians, and drafting technical reports and memoranda in the field. He is currently also a member of the United Nations Mediation Roster and consultant to the World Bank Institute at the World Bank and the United Nations Development Program.

Sujit Choudhry has been an advisor to foreign dignitaries who were building constitutions in their own countries, including Sri Lanka, Yemen, South Africa, Ukraine, Egypt, Jordan, Nepal, Libya and Tunisia. The World Bank and the United Nations Development Program invited him to be a consultant to the World Bank Institute. He is also associated with the United Nations Mediation Roster. Choudhry is an internationally recognized authority on comparative constitutional law and politics whose research focus spans across a wide variety of comparative constitutional law and politics issues. He combines a wide-ranging research agenda with in-depth field experience as an advisor to constitution building processes.

The Center for Constitutional Transitions seeks to gather knowledge in the effort of constructing constitutions. Constitutional experts all over the world participate in these research studies that provide evidence for policy options that are offered to those who need them. Many entities take part in these studies, including universities, NGOs, think tanks and multilateral organizations. Through the Center’s partnership with with the International Institute for Democracy and Electoral Assistance, Choudhry co-leads three global collaborative research projects. These include Dealing with Territorial Cleavages in Constitutional Transitions, Security Sector Reform and Constitutional Transitions in Emerging Democracies, and Security Sector Oversight: Protecting Democratic Consolidation from Authoritarian Backsliding and Partisan Abuse.

Sujit Choudhry’s publication record includes over ninety articles, book chapters, working papers and reports. He is author of several books, including The Migration of Constitutional IdeasConstitutional Design for Divided Societies: Integration or Accommodation?The Oxford Handbook of the Indian Constitution and Constitution Making. Choudhry is a member of the Executive Committee of the International Society of Public Law, the International Advisory Council of the Institute for Integrated Transitions, the Scientific Advisory Board of the International Journal of Constitutional Law, the Editorial Board of the Constitutional Court Review, the Editorial Advisory Board for the Cambridge Studies in Constitutional Law, and is an Honorary Member of the Advisory Council of the Indian Constitutional Law Review.

More information on Sujit Choudhry can be found on his personal website sujitchoudhry.com as well as on LinkedIn, Twitter (@sujit_choudhry), Instagram (@sujitchoudhry) and on Facebook. More information regarding the Center can be found on its website constitutionaltransitions.com.

 

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