Sujit Choudhry: Promoting constitutional democracy through constitutional resilience to populism

Politics 23 January, 2019

One of the biggest challenges to constitutional democracy is the populist challenge. Populism attacks the major core features of a constitution, making it ineffective as a way of maintaining order in a jurisdiction. Sujit Choudhry, one of the prominent comparative constitutional lawyers in the world has a lot to say about the challenges caused by populists in a constitutional democracy. He raises some points that show why constitutional resilience should be created to enhance constitutional democracy in the face of attack by the challenges of populism. From experience working in various parts of the globe, he can tell what works and cannot work for the people.

Sujit Choudhry stresses the important role that constitutional design can play in making a constitutional democracy practical. He begins by outlining the fact that there needs to be a difference created between constitutional idealism and constitutional nihilism. Idealism proposes the use of intelligent solutions in constitutional design to make it practical while nihilism believes that there is little that constitutional design can do to change the situation. Most challenges of populism are caused by the powers that are accompanied by a victory at the ballot box. A win through the ballot can be overblown and bring negative impact on the application of constitutional democracy.

A constitutional design might not eliminate all the problems facing a constitutional democracy, but it can contribute largely to reducing the negative effects of populists by creating delays and impediments in the application of populist ideas. The obstacles created by constitutional design are very important since they create a period when people can take a look at what is being presented. It creates room for creative solutions to be applied. The obstacles might not last forever, but it might contribute significantly to the maintenance of constitutional democracy. Such obstacles, according to Sujit Choudhry, create constitutional resilience and ensure not even the populists can twist the law on their wishes.

Another challenge is the influence of autocrats. Autocrats can cause democracy to fail because they attempt to make it impossible for the people for the rule of law to run effectively. The intention is always to change the law to fit their political dreams. Incumbents would not like to leave office, and they, therefore, try as much as possible to make changes that will reduce the political threat from their challengers. Some will manipulate the electoral process so that they can remain in power. Even in elections, they would not have won in a free and fair process; they will still win because they have manipulated the process.

The difference between the populists and the autocrats is that populists will try to claim that they represent the genuine electoral majority and might even support their argument by showing that they won in a free and fair process. While the autocrats will address the needs of a small group of elites, populism will take care of the majority, even though their decision might not mean the country observes constitutional democracy.

For constitutional resilience to be practical, it needs to be at the heart of political dispensation. The political parties should not come before the constitution. The rule of the constitution should guide the internal rules that guide the legislative process. With the weakening of the opposition voice in the legislative processes in many countries, it is only constitution resilience that can create sanity. While most constitutional designers think of the opposition as an agent of eliminating populism decisions, the challenges of today transcend the presence of opposition. Sujit Choudhry is a constitutional designer for many years, and he understands the practical solutions that should be implemented to deal with the threat of populism.

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