
Sujit ChoudhryWZB Berlin Social Science Center · Center for Global Constitutionalism
Sujit Choudhry
Master of Laws
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122
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Introduction
Sujit Choudhry is an internationally recognized authority on comparative constitutional law. He has been an advisor to constitution building, governance, and rule of law processes for over 20 years, including in Egypt, Jordan, Libya, Myanmar, Nepal, South Africa, Sri Lanka, Tunisia, Ukraine and Yemen. He has lectured or spoken in 30 countries. Choudhry has published over 100 articles, book chapters, policy manuals, reports and working papers. His edited volumes include The Oxford Handbook of the Indian Constitution, Constitution-Making, Constitutional Design for Divided Societies, The Migration of Constitutional Ideas, Territory and Power in Constitutional Transitions and Security Sector Reform and Constitutional Transitions.
Skills and Expertise
Additional affiliations
March 2019 - present
Forum of Federations
Position
- Consultant
December 2018 - present
International Institute for Democracy and Electoral Assistance
Position
- Consultant
December 2017 - present
Education
August 1997 - June 1998
August 1994 - June 1996
August 1992 - June 1994
Publications
Publications (122)
Modern constitutions typically contain a variety of provisions on language. They may designate one or more official languages, each with a different kind of legal status. Constitutions may also create language rights, usually held by minority-language speakers, granting groups and individuals the right to communicate with, and receive services from...
La réforme du secteur de la sécurité, le passage à la démocratie et la réforme constitutionnelle sont intrinsèquement liés. Le processus d’élaboration d’une constitution peut donc être un forum de négociation important pour redéfinir les relations entre les institutions civiles et celles du secteur de la sécurité. Ce document d’orientation entend s...
လုံခြုံရေးကဏ္ဍ ပြုပြင်ပြောင်းလဲရေး၊ ဒီမိုကရေစီဖော်ဆောင်ရေးနှင့် ဖွဲ့စည်းပုံအခြေခံဥပဒေ ပြင်ဆင်ရေး တို့သည် သဘောသဘာဝအားဖြင့် အပြန်အလှန် ချိတ်ဆက်မှု ရှိပါသည်။ သို့ဖြစ်၍ ဖွဲ့စည်းပုံအခြေခံဥပဒေ တည်ဆောက်ရေး လုပ်ငန်းစဉ်အတွက် ဆွေးနွေးပွဲစင်မြင့်သည်ပင် အရပ်ဖက်နှင့် လုံခြုံရေးကဏ္ဍ အဖွဲ့အစည်းများအကြား ဆက်စပ်ပုံ အပြောင်းအလဲများ ပြုလုပ်ရေး ညှိနှိုင်းဆွေးနွေးမှုမျ...
إن مجالات إصلاح قطاع الأمن والدیمقراطیة والإصلاح الدستوري مترابطة ارتباطاً جوھریاً. وبالتالي یمكن أن توفر عملیة بناء الدستور فضاءاً مھماً للمفاوضات حول التغییرات في العلاقة بین المؤسسات المدنیة وقطاع الأمن. تھدف ورقة السیاسات ھذه إلى دعم المستشارین وصناع القرار في التعامل مع ھذه التحولات المعقدة. وتركز ھذه الورقة على العلاقة بین إصلاح قطاع الأمن وع...
In Johar , the Supreme Court unanimously struck down Section 377 of the Indian Penal Code (IPC), which criminalized same-sex relations. The idea of transformative constitutionalism figured centrally, as did a piece of the global template of rights-protection—proportionality. In Johar , the Indian Constitution was envisioned as a transformative docu...
Germany’s Grundgesetz (Basic Law) is one of the world’s great constitutions. Adopted in 1949, it has had a vast influence internationally. It is the paradigmatic example of a post-authoritarian constitution, built on the ashes of the Nazi regime. In its place, the Basic Law creates a constitutional democracy built on the foundation of human dignity...
At least since the late eighteenth century, constitutions have been understood as emanations of the will of “the People,” as the ultimate expression of an inherent popular sovereignty. In the form of theories of constituent power, accounts of constitutional foundations blended notional or conceptual “descriptions” of the People, which anchored the...
The year 1989 marked the return of the right to self-determination to center stage in constitutional politics. It was at the root of demands for constitutional democracy; it was also invoked by minority nations to make claims for secession and independent states. That year also marked the emergence of a new model of "post-sovereign" constitution-ma...
This chapter explores how patterns of territorial political mobilization influence the processes of Constitution-making and the choices of constitutional design, focusing on seventeen countries that differ significantly in the structure of their politically salient territorial cleavages. The seventeen cases present relatively recent examples of con...
This report assesses the ways in which the semi-presidential form of government can be best structured to promote stable, democratic and inclusive governance in Ukraine.
Constitutional stability in Ukraine has faced four main challenges: (a) recurring institutional conflict among the president, legislature and government; (b) a presidency that has...
What, if anything, can constitutions do to resist democratic backsliding? The collapse of the Weimar Republic has led scholars of comparative politics to conclude that constitutional forms and institutions can do little to resist the breakdown of democracy and the rise of autocracy. This paper offers a constitutionalist response. The outlines of th...
The Oxford Handbook of the Canadian Constitution provides an ideal first stop for Canadians and non-Canadians seeking a clear, concise, and authoritative account of Canadian constitutional law. The Handbook is divided into six Parts: Constitutional History, Institutions and Constitutional Change, Indigenous Peoples and the Canadian Constitution, Fe...
Indian constitutional law is of immense historical, practical, and theoretical significance. Almost all the issues that arise in the course of thinking about law in modern constitutional democracies find their most intense expression in the evolution of Indian constitutional law. India’s Constitution was the framework through which the world’s larg...
Disputes over official language policy have been at the center of Indian political life. The Constituent Assembly debated whether Hindi should be the sole official language of the Union government, or whether Hindi and English should enjoy equal status. A closely related issue was the question of whether the boundaries of India’s states should be r...
Although the field of constitutional law has become increasingly comparative in recent years, its geographic focus has remained limited. South Asia, despite being the site of the world's largest democracy and a vibrant if turbulent constitutionalism, is one of the important neglected regions within the field. This book remedies this lack of attenti...
Increasingly, an important—even central—issue in constitutional transitions is dealing with the diversity of populations in different regions, i.e., with territorial cleavages. When this territorial dimension is important, it can greatly complicate both the process of constitution making and the design of legitimate and stable constitutional instit...
The term ‘corruption’ is used to describe a wide range of dishonest behaviour, including bribery, embezzlement, abuse of authority, extortion, illicit enrichment, kickbacks, and trading in influence, in addition to actions connected to, and often used to aid in the commission of, corrupt activities such as money laundering, concealment and obstruct...
Decentralization involves the transfer of responsibility and authority from the central government to the provincial level of government, the local level of government, or both. Decentralization has the potential to deepen democratic values and improve the quality of life in neglected communities, and thus is an important topic to consider during d...
Countries rich in oil and gas often derive great wealth from these resources. Yet such countries are also often host to chronic economic problems, regional infighting and democratic deficits—factors which lead to high levels of corruption and lack of government accountability in the oil and gas industry. When neither constitutional nor effective le...
This article takes the long-standing fact of deviations from the principle of representation by population in Canada as the starting point and asks whether the consequence is the dilution of visible minority votes. It calculates voting power for visible minorities in comparison to voters who are not visible minorities for the 2004 federal electoral...
The semi-presidential system is a form of government in which a directly elected president shares executive power with a prime minister and government appointed by, and serving with the continuing confidence of, a democratically elected legislature. The system is characterized by two sites of executive power, each with a separate electoral mandate....
Countries that are seeking to establish constitutional democracy after a history of dictatorial or oppressive government confront large challenges in creating stable structures of government and protecting the rights of their citizens. Many countries have the added challenge of considering how their culturally diverse character—which may be linguis...
The Middle East-North Africa (MENA) region is experiencing an unprecedented moment of constitutional transition. Among other constitutional reforms, many countries in the region have adopted, are considering adopting or have strengthened systems of constitutional judicial review as a way of signalling the government’s commitment to the rule of law....
For most of the twentieth century, the study of federalism was oriented around a standard set of cases in the developed world: Australia, Canada, Switzerland and the United States of America. These cases provided the raw material for certain fundamental questions: What is federalism? Why should federations be adopted? What role is there for courts?...
Political party finance law is the set of norms governing the income and expenses of political parties. While many countries have addressed political party finance constitutionally, such provisions are usually phrased in general terms, such as requirements of transparency, leaving the details to law and to the regulations promulgated by enforcement...
The political history of many of the countries in the Middle East and North Africa (MENA) region over the last 60 years has been one of strong presidents and weak legislatures. The democratic revolutions of the Arab Spring created the opportunity to reconstitute the political system in a way that marks a fundamental break from the dictatorships of...
Stephen Gardbaum’s The New Commonwealth Model of Constitutionalism is a must-read in the growing literature on comparative constitutional law and deserves a broad international audience. My question is whether there is a single Commonwealth constitutional model, or, in reality, a set of Commonwealth constitutional models which share common features...
The Middle East and North Africa (MENA) is witnessing the greatest degree of political transformation and regime change in a generation—the Arab Awakening. The causes of these revolutions are rooted in corruption, a lack of economic opportunity, and most fundamentally, authoritarianism. What is striking is that constitutional transitions of various...
This paper considers the range of institutional design options adopted in a selection of the world’s semi-presidential regimes. Through an extensive comparative analysis, this paper illustrates that the democratic performance of a semi-presidential regime depends to a great extent on the choices that are made among these design options. The Tunisia...
Although Jack Balkin’s Living Originalism is about American constitutional practice, it raises two sets of interesting questions for scholars of comparative constitutional law. First, Balkin is largely silent on the role of comparative materials in living originalism. But the negative implication from his understanding of constitutions is that comp...
Proportionality is a pervasive feature of contemporary constitutional practice under most systems of rights-protection. Although its textual underpinnings are diverse, this diversity in constitutional forms has been overwhelmed by the emergence of a doctrine of proportionality with a common legal structure. After decades of doctrinal development ma...
The establishment of a judiciary with the power of constitutional review—determining whether government actions comply with the constitution’s provisions—is now considered a standard component of a democracy. It is increasingly common to entrust the power of constitutional review to a specialised constitutional court that can issue authoritative de...
A disproportionate number of the Supreme Court of Canada’s recent cases on freedom of religion under s. 2(a) of the Canadian Charter of Rights and Freedoms come out of Quebec and involve claims for reasonable accommodation. These decisions represent a point of national cleavage in two respects. First, in each case the Quebec Court of Appeal rejecte...
The independence of the judiciary gives concrete expression to two essential elements of democracy, namely the rule of law and the separation of powers. In a constitutional democracy, the political process and any state function must take place within the confines of the law. Judges are tasked to uphold the rule of law. To ensure that they do so wi...
This is a response to D.S. Law & M. Versteeg, “The Declining Influence of the United States Constitution” (2012) 87 New York University Law Review 762. Of the many questions raised by Law & Versteeg’s important article, I want to focus on two. First, as a methodological matter, do they measure constitutional convergence and divergence in the right...
Group rights are part of the grammar of contemporary constitutional politics.Moreover, the assertion of group rights is not just a political claim; it is also a legal claim directed at the very design of the constitutional order itself and its subsequent interpretation. In contemporary constitutional practice, group rights exist alongside the stand...
How should Indian courts do comparative constitutional law? Does the practice of cosmopolitan citation carry with it the necessary implication that Indian constitutional adjudication is part of a trans-national conversation on the relationship between rights, democracy, courts and the rule of law that knows no jurisdictional boundaries? Or is compa...
In ethnically divided societies – especially in post-conflict settings – there are two constitutional agendas regarding the design of the apex court charged with interpreting the bill of rights. On the one hand, there is the demand for judicial independence. A central justification for judicial independence is that it flows from the very idea of a...
It has been argued that the constitution of a country is the embodiment of, or a response to, its particular history, political values, culture, and, indeed, its very identity. But in the last two decades, we have witnessed a dramatic resurgence in the study of comparative constitutional law. How should we understand the relationship between the wi...
Michel Rosenfeld, in The Identity of the Constitutional Subject, observes that historically, the transition from authoritarian rule to constitutional democracy has involved violent breaks with the past. But violence poses a special challenge to the very idea of constitutional government, because above all, the basic mission of a constitution is to...
Under Canada’s Employment Insurance (EI) program, access to unemployment benefits varies according to the regional unemployment rate. Previous studies have shown that this regime works to the disadvantage of certain provinces and urban areas. In this paper we measure the impact of the variable regional entrance requirements on specific minority wor...
Federalism has long been a topic of study for comparative constitutional law. However, the scholarly literature on federalism is in a process of transition. For most of the twentieth century, the study of federalism was oriented around a standard set of cases in the developed world: Australia, Canada, Switzerland and the United States of America. T...
The legal aid system in Ontario is not working, particularly with respect to access to justice in civil matters. Financial eligibility requirements remain frozen at extremely low levels and have been steadily eroded by inflation, leaving increasing numbers of people ineligible for publicly paid legal assistance. The range of services covered priori...
Representation by population (rep-by-pop) was one of the principal forces behind the creation of Canada and is a key pillar of democracy. Although some deviations from the norm of voter equality are acceptable, they should be grounded in principles that are widely accepted and viewed as legitimate. Canada’s federal electoral districts deviate from...
Bills of rights are now central components of liberal democratic constitutions. But debates over the character and content of bills of rights are no longer at the center of more recent rounds of postconflict constitutional politics. This review puzzles through the rise and decline, but persistence, of rights-based constitutionalism. Neither compara...
A bill of rights that is entrenched and supreme over legislative and executive action, backed up by judicial review by independent courts, is now what we associate with a “normal” state, and the onus of justification has shifted on those wishing to omit these arrangements from any new constitution. In the post-conflict state, the adoption of consti...
In Multicultural Odysseys, Will Kymlicka observes sharp differences in the way North America and western Europe, on the one hand, and eastern and central Europe and Africa and Asia, on the other, have responded to the claims of minority nations (Kymlicka 2007). Some multinational polities such as Canada, Belgium, the United Kingdom, and Spain have...
This symposium explores the extent and constitutional signifi cance of the changes that are taking place in the conception and practice of citizenship in countries throughout the world. The six papers reveal a preoccupation with broadly similar issues in the regions on which they primarily focus: Europe, North America, and southern Africa. At the s...
In Canada, independent non-partisan bodies known as electoral boundary commissions delimit electoral boundaries for federal ridings. While a marked improvement over the nakedly partisan process of the past, the current Canadian system for drawing electoral boundaries remains a work-in-progress. In this chapter we touch on a number of important ques...
Constitution making is a divisive process, and it must be so. In any healthy constitutional negotiation, issues will be brought to the table on which the interests of the negotiating parties diverge. Parties to constitutional negotiations are thus faced with the challenge of developing a final document in which each group within the nation can take...
How should constitutional design respond to competing claims for official language status in countries where there is more than one language, whose speakers are concentrated in a specific territory, and hence, where more than one language is a plausible candidate for use in public services, public education, legislatures, the courts, and public adm...
Over the course of the summer and fall of 2006, Canada debated whether Quebec should be formally recognized as a “nation”, a proposal made by Michael Ignatieff. I want to draw attention to a puzzle and a curious omission arising from this debate. The puzzle, is this: although the constitutional recognition of Quebec as a nation generated heated deb...
A dominant party democracy is a democracy whose constitutional design is liberal democratic, which provides an entrenched framework for multiparty democracy through universal suffrage and regular elections, and which contemplates political competition and the alternation of political parties in power, but in which one party enjoys electoral dominan...
Language will be one of the most important issues for the writers of Nepal’s new constitution. In grappling with it, there are in fact two sets of questions for Nepal to discuss. First, what does official language status actually mean? Second, how can constitutional design respond to linguistic diversity—in particular, what is the relationship betw...
Why have political actors throughout the world adopted systems of judicial review that empower courts to assess legislation enacted by democratically elected legislatures for compliance with a constitutionally entrenched bill of rights? As Tom Ginsburg has argued, political actors have adopted systems of rights-based judicial review as a form of po...
How should constitutional design respond to the opportunities and challenges raised by ethnic, linguistic, religious, and cultural differences, and do so in ways that promote democracy, social justice, peace and stability? This is one of the most difficult questions facing societies in the world today.There are two schools of thought on how to answ...
In the recent Newfoundland and Labrador Court of Appeal decision of Newfoundland (Treasury Board) v. NAPE, Justice Marshall accused the Supreme Court of Canada of "undue incursions ... into the policy domain of the elected branches of government ... " He added that these incursions were happening more frequently and invited the Court to "revisit" i...
How should constitutional design respond to the opportunities and challenges raised by ethnic, linguistic, religious, and cultural differences, and do so in ways that promote democracy, social justice, peace and stability? This is one of the most difficult questions facing societies in the world today. There are two schools of thought on how to ans...
Bruce Ackerman speaks with two voices. While he is one of the most prominent students of comparative constitutionalism in the U.S. legal academy, Ackerman is better known for his imaginative theory of American constitutional development. In the latter voice, Ackerman observes that, notwithstanding a remarkable continuity of governance, U.S. constit...
The author offers his views on the future of the federal spending power debate in Canada. First, he explores the original purposes of Canada’s 19th century federal constitution and its evolution in the 20th century in response to a changed sense of what a modern state should be and Canada’s place in the world. He contends that the debates over the...
Political theorists have long considered the question of how constitutional design can respond to the demands of minority
nationalism. In this context, Canada has attained considerable prominence as a model, even though the notion of the model
came to prominence during the Canadian constitutional crisis of the 1990s, when Quebec nearly seceded. In...
How should constitutional design respond to the opportunities and challenges raised by ethnic, linguistic, religious, and cultural differences, and do so in ways that promote democracy, social justice, peace and stability? This is one of the most difficult questions facing societies in the world today. There are two schools of thought on how to ans...
At the time this essay went to press, Quebecers were already in the throes of an unusually volatile election. Although the Parti Quýbýcois appeared poised to suffer a significant setback on March 26, its commitment to holding a "public consultation" (read: referendum) on sovereignty had become a major campaign issue. Whether Jean Charest's Liberals...
The natural place to explore this link is the case in which the Court was thrust into the heart of the national unity dispute – the Secession Reference. One of the most puzzling aspects of the judgment, which has thus far escaped attention, is its curiously selective account of constitutional history. We do not refer to the Court's partial descript...
Although all adult citizens have the right to vote under section 3 of the Canadian Charter of Rights and Freedoms, the worth of one's vote depends upon where one lives. Representation from Canada's three fastest growing provinces - Alberta, British Columbia and Ontario - is increasingly out of step with demographic realities. The average ballot cas...
The migration of constitutional ideas across jurisdictions is one of the central features of contemporary constitutional practice. The increasing use of comparative jurisprudence in interpreting constitutions is one example of this. In this 2007 book, leading figures in the study of comparative constitutionalism and comparative constitutional polit...
The politics of comparative constitutional law Usually judges ask the questions, but on this night the roles were reversed. The occasion was a public conversation between United States Supreme Court Justices Breyer and Scalia, answering questions posed by constitutional scholar Norman Dorsen. The topic was the ‘Constitutional Relevance of Foreign C...
R. v. Oakes is widely regarded as one of the most important judgments interpreting Canada's Charter of Rights and Freedoms. In addition to laying down its famous proportionality test to assess the reasonableness of limits on Charter rights, it clarified the Supreme Court of Canada's Court's interpretive methodology for Charter cases, perhaps most c...
In this article, I use the Lochner metaphor to analyze the recent judgment of the Supreme Court of Canada in Chaoulli v. Quebec. In Chaoulli, the Court struck down Quebec's ban on private health insurance for violating the Canadian Charter of Rights and Freedoms. The question is whether Chaoulli repeats the errors of the Lochner court. Given the pr...
Two conceptions of constitutionalism: Constitutional theorists are in the midst of a debate over the appropriate institutional arrangements for the interpretation and enforcement of constitutional norms in a constitutional democracy – that is, a liberal democratic polity in which all exercises of public power must comply with some higher-order or b...
Since the rise of the Canadian welfare state in the aftermath of the Second World War, the politics of social policy and fiscal federalism have been at the centre of federal-provincial relations. Recent events have given impetus for scholars to re-examine these issues. In 2002, the Quebec Commission on Fiscal Imbalance released its report, which in...
An enormous body of literature exists on intergovernmental transfers between central governments and federal subunits. This work focuses almost exclusively on the economic justifications for such transfers, their design, and the challenges they pose to democratic accountability, transparency, and the autonomy of federal subunits. The legal dimensio...
Toronto is at a remarkable point in its history. As one of the most prosperous, diverse and inclusive cities in the world, and as a major centre of commerce and culture, it also plays a special role on the national scene. The anticipated powers under a new City of Toronto Act will give Toronto special, unique status in Canada. For the first time, t...
U.S. health care has long featured a struggle between regulation and markets as vehicles of reform, and the community hospital is at the center of this struggle. The key to its financial viability is cross-subsidization, whereby revenues from insured patients subsidize the care of the uninsured and underinsured, and profits from well-compensated se...
Contemporary defenders of "nation-building" draw a sharp distinction between the "new" and "old" versions of that political practice. The old nation-building, in which a foreign power would design the institutional and legal architecture of another political community without its consent, is widely viewed as an imperialist enterprise motivated by a...
There are two distinct institutional reform agendas underway in Canada which are being pursued independently of each other: the so-called democratic renewal agenda, and the improvement of intergovernmental relations (IGR) principally between the federal government and the provinces. These two agendas are deeply in tension because they point in oppo...
The Lochner era exerts a powerful hold over the American constitutional imagination as an example of the dangers of judicial review. Indeed, much of the edifice of the last fifty years of American constitutional jurisprudence can be viewed as a reaction to, a rejection of, and an attempt to avoid a repetition of, the Lochner era. I want to explore...
Due to the rise of mega-constitutional politics in Canada, constitutional amendment in the decade following the 1992 demise of the Charlottetown Accord has proven a non-viable means of changing Canadian social policy. The mechanisms through which political actors have attempted to achieve constitutional change have by necessity shifted, giving rise...
The recent review of the Unrelated Live Transplant Regulatory Authority (ULTRA) provides administrative and statistical information regarding living donor kidney transplantation in the United Kingdom.1 However, it leaves much unsaid. For example, although the report does mention the number of live kidney donations from unrelated donors that ULTRA h...
Before the advent of the Charter, the Canadian legal system contained settled understandings regarding judicial and legislative approaches to law-making. In brief, legislatures generally made new legal rules with prospective effect, while courts recognized and applied pre-existing legal rules with retroactive effect. This traditional approach alloc...
Given the prominence of the issue of racial, ethnic, and religious profiling in the public debate about terrorism, it is significant that Canada's two legislative responses to September 11 - the Anti-terrorism Act and the proposed Public Safety Act - are silent on the issue, neither explicitly authorizing profiling nor expressly banning it. In this...
In this reply, the authors assert that Professors Manfredi and Kelly's response to their original article either misses the point or is simply mistaken. The authors clarify the limited purpose of their original study, which was to assess the extent to which the Supreme Court is counter-majoritarian under the Charter. Manfredi and Kelly's interpreta...