The 4 Theses Of Sujit Choudhry About Constitutional Resilience In The Face Of A Populist Challenge

Sujit Choudhry is an internationally recognized figure when it comes to comparative constitutional law, having worked as an advisor to constitution building processes, governance, as well as rule of law processes for more than 2 decades in places such as Jordan, Egypt, Ukraine, South Africa, and more. He spoke or gave lectures in 30 countries, sometimes working during ceasefires or conditions of political violence. He has experience in technical advice to multi-party dialogues, leading stakeholder consultations, facilitating public dialogue sessions with stakeholders and civil society groups, drafting technical reports, engaging party leaders and parliamentarians, training civil servants and bureaucrats, and performing detailed advisory work.

Recently, he shared his thoughts in regards to the idea of enhancing the resilience of a constitution in order to ensure that it survives in the face of a populist challenge, setting out his argument in 4 theses. Before outlining his theses, he mentioned Mattias Kumm, who, as he points out, argues that the populist challenge to constitutional democracy is ‘systemic’, due to the fact that its not targeting one of the core features of constitutional democracy, but instead it is aiming at all of them. Sujit Choudhry notes that according to Kumm, populists deny the idea of legitimate opposition as well as the claim that pluralism is politics’ normal condition.

His first thesis begins with a plea for modesty, noting that constitutional democrats have to be realistic and clear-eyed about what good constitutional design can achieve. Mr. Choudhry considers that we have to steer a middle course between constitutional nihilism and constitutional idealism. Idealists argue that good constitutional design can largely eliminate the risk that populism poses, where as constitutional nihilists argue that there is little (if anything) that the constitutional design is capable of doing to secure a victory when facing a populist challenge.

The second thesis that he brings up is the idea that the challenge that populism poses to constitutional democracy is widespread but also misunderstood. He notes that commentators often times are conflating autocrats with populists. He points out that populists are different, due to the fact that they are claiming to represent a true electoral majority, and in some cases they might genuinely command support from the majority, even conditions of competitions are fair and free. The distinction between populists and autocrats, according to Mr. Choudhry, has important implications when it comes to the goals and means of constitutional resilience.

The third point that he raises notes that we should distinguish between two ideas of constitutional resilience. On one side there’s the view which considers the threats to constitutional democracy to be coming from populist political mobilization, with politics being seen in a negative light, and on the other side there’s the view which argues that constitutional stability rests on a political foundation of power relations, and that the constitutions are providing infrastructure for a partisan and pluralist contestation. He considers that turning our back upon politics will undermine constitutional order in the long run in the face of populist challenge.

The forth and final thesis of Sujit Choudhry states that if constitutional resilience has constitutional infrastructure for political competition at its heart, then we should be broadening the institutional viewfinder of constitutional law behind its narrow focus on electoral system design. He brings up the fact that Polish contributors to the workshop have highlighted the weakening of opposing rights when it comes to the legislative process, which has been an important dimension in regards to democratic backsliding. Constitutional designers have imagined the idea of opposing rights in terms of voting rules, but they are also encompassing other tools, such as agenda-setting, oversight powers, committee chairs, etc.

Find out more here http://www.dougsandler.com/news/sujit-choudhry

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