Introduction
In 1990, just out of college, I flew to Ulaanbaatar, the capital of the Mongolian People’s Republic. I was a young program officer for a nonprofit organization called the Asia Foundation, which worked to promote democracy around the region, and my job was to help a group of newly appointed constitution-makers in their task.
My role was extremely peripheral, mainly to determine what kind of outside expertise would be helpful, and to find relevant people.Those were heady times. The fall of communism had prompted a reformist shift within the Mongolian government, and multi-party elections had just been held for the first time. A twenty-person constitutional drafting commission, headed by the new President, P. Ochirbat, was formed to draft a new constitution for the country. I worked closely with the commission’s secretary, Mr. B. Chimid, one of the country’s leading lawyers.
T Ginsburg (B)
The University of Chicago, Chicago, USA
e-mail: tginsburg@uchicago.edu
© T.M.C. ASSER PRESS and the authors 2022
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J. de Poorter et al. (eds.), European Yearbook of Constitutional Law 2021,
European Yearbook of Constitutional Law 3,
https://doi.org/10.1007/978- 94-6265-535- 5_2
Chimid was a brilliant character, and he knew what he and the committee needed to know. But how to find the foreign talent? This was the end of the Cold War and there was much of this activity going on, mostly advice offered by American professors who knew exactly one political system: their own. I found several of these people. But one fellow, Martin Shapiro of the University of California at Berkeley, stood out. Whereas most of the other professors focused on the human rights provisions of the constitutional draft, or had only general views based on American experience, Shapiro delved into the details of the proposed semi-presidential political system, the role of the constitutional court, and the system of local government. Clearly this was a person who understood the interaction of various elements of a constitutional system in a comparative way.
Not even the brilliant Mr. Chimid had such range of experience, and so the exchange was a useful one, in which Shapiro helped the commission avoid some problems.Eventually Mongolia adopted a constitution, which still serves it 30 years later. I decided to go and study with Shapiro to learn more. I kept in touch with the Asia Foundation and did a number of projects for them in various parts of the region, and gradually developed my own expertise in constitutional matters. At this point, I have had some sort of involvement in more than two dozen countries engaged in the constitution-making process, ranging from simply engaging with civil society actors to submitting memos to a drafting committee to working with them on repeated constitutional drafts. I have studied the process and substance of constitution-making, and learned a little. But does that mean I have anything helpful to add to constitutionmaking processes?
This chapter grapples with the possibilities and limits of outsider involvement in constitution-making, specifically the role of advisors. There is not much literature on this topic, though some is beginning to emerge.[24] Given the sheer number of constitution-making exercises going on in any given year, and the importance of the activity, there certainly is a continuing demand for constitutional advice. However, there is not a lot of advice for advisors out there. The current chapter considers the field for constitutional advice, some potential pitfalls, and offers some advice for advisors.
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