As student researchers this past summer with NYU Law’s new Center for Constitutional Transitions, headed by Cecelia Goetz Professor of Law Sujit Choudhry, Christopher Roberts ’12 and Amos Toh (LL.M. ’12) found themselves weighing in on the internationally scrutinized and highly complex constitutional drafting process unfolding in post-revolutionary Egypt.
“I think that Egypt has been particularly, even by transitional standards, surprising, if not chaotic,” says Roberts. “There are so many different elements involved in the transition that it allows you to think about a whole range of things.”
Roberts and Toh both became involved with the Center for Constitutional Transitions after taking Choudhry’s comparative constitutional law class last spring. “He’s just canonical in his knowledge, and gave us a very good understanding of the substance of comparative constitutional law in a number of key areas,” said Roberts of Choudhry. “We also learned there are many ways you can approach that kind of work, and that it’s important to have a lot of sensitivity to the particular context you’re looking at.”
The two students spent the summer in Beirut working with the International Institute for Democracy and Electoral Assistance (International IDEA), an intergovernmental organization partnered with the center that supports sustainable democracy worldwide by producing information in areas such as constitution-building, electoral processes, and democracy and development. Working with the head of the constitution building program in International IDEA’s West Asia and North Africa division, they helped to formulate a commentary responding to the declaration issued by Egypt’s Supreme Council of Armed Forces in the wake of presidential elections in June. The council’s document claimed that elections could not be held until a new permanent constitution had been drafted.
“The big takeaway from the Egypt work is how the establishment of democratic structures can take place in such different ways,” says Toh. “The way comparative law figures into that development is actually for the people in Egypt and the Egyptian government to decide. But in post-conflict democracies it does play an important role in doing the groundwork, in giving them resources to look at to see how to style an institution, what the pitfalls are, how exactly real structural political change can come about.” He and Roberts contributed to documents analyzing the situations in a number of countries experiencing constitutional transitions or amendment processes.
Roberts concentrated especially on the relationship between democratically elected governments and armed forces, as well as issues related to abuses by police and intelligence services. He devoted a considerable amount of his time to a document on security sector reform through constitutional means. Historically, Roberts said, constitutions have said little about civilian control over the military, but such codifications are gaining momentum.
He found the South African and Kenyan constitutions to be particularly valuable models, since both were drafted recently and thoughtfully to include content on security sector reform. But a comparative approach to constitutional drafting involves more than merely cribbing from preexisting national charters, Roberts adds, because every sovereign state’s context is different: “It’s not just a question of these countries emulating other countries’ constitutions. They have the opportunity, at least, to produce something that’s inspiring in its own right.”
Toh spent much of the summer working on Egypt, constitutional transition in Libya, and a commentary on constitutional courts in the region. “I thought this particular internship was in a very interesting area of comparative law,” he says, “focusing on how to bring in comparative perspectives sensitively in a region that is already fraught with a lot of tension and has actually been damaged by foreign intervention.... There seems to be a lack of legal analysis on how exactly new constitutional and democratic structures and institutions should be set up.”
One of his major projects was on the most important issues in constitutional structure, including the need for greater structural change. Toh used Jordan’s constitutional court as one example, suggesting that the court appears less credible because the king appoints the judges and, further, serves as a potential distraction from the need for real democratic reform. Toh’s analysis also included Egypt, Morocco, Kuwait, and Syria, with the overall observation that constitutional courts alone cannot offer comprehensive solutions to political and constitutional problems in the region.
Roberts is currently working as an NYU Law Arthur Helton Global Human Rights Fellow at the Cairo Institute for Human Rights Studies, where, within the institute’s international advocacy program, he is concentrating on freedom of expression, association, and assembly in Middle Eastern countries. When it comes to advising on constitutional transitions, he says, “It requires a certain amount of imagination, because you want to be able to write something that will still be relevant in the future.... I fall more on the side of believing that part of the point of international organizations being involved in these areas is to push to a certain extent toward an ideal. That doesn’t mean you’re not pragmatic, but the hope with a new constitution is to produce the best document possible.”
Meanwhile, Toh is back in New York as a fellow at NYU Law’s Brennan Center for Justice. He is analyzing ways in which international and comparative law can be applied to the U.S. Constitution, particularly as it relates to campaign finance reform. Toh acknowledges that some aspects of comparative law are controversial in the U.S., but believes that there are ways in which it can inform domestic jurisprudence: “The comparative perspective presents options, and sometimes persuasive options, of what to do and what not to do. But regardless of whether the United States or Egypt is at the receiving end of these comparative perspectives, I think there has to be a lot of sensitivity about how it’s put across.”
Posted on September 28, 2012