Regulation and Institutions
This transnational social field of constitutional advice-giving involves lots of different actors. It is presently regulated only by public opinion and the need to preserve the image of the constitution as a local product.
The discourse of localism/imposition is found in nearly every constitution-making process in which foreigners appear, and is perhaps unavoidable. But even if every situation is unique, certain problems that implicate the growing practice of international advice-giving recur, and one can learn from how others resolved problems in like situations. The choice between presidentialism and parliamentarism, the design of constitutional adjudication, the deployment of voting systems are all issues that must be confronted, and on which there is some comparative experience.The biggest player in the field of advice-giving is of course the United Nations, which has emerged as a major force in nation-building in the post-Cold War era. Frequently called on to help countries transition out of civil war and conflict, the UN has at times assumed a direct role in governance in countries as diverse as Kosovo, East Timor, Somalia, Iraq, Afghanistan, and Cambodia. Sripati documents 40 different countries in which constitutional intervention has occurred.[39] Many of these situations involve countries emerging from violent conflict, as part of the relatively new field of “peace-building”. Because of its scope and power, the UN can play a role at every level of the concentric circle of constitution-making: indeed, in Cambodia and East Timor it was in some sense the principal author of the constitutional document. In Afghanistan it organized and supported the process, hired experts, and negotiated with various local players as well as the United States, which pushed its own vision and timetable. The UN is unique in that has a greater degree of international legitimacy than do bilateral donors, as well as a good deal of in-house expertise.[40]
In some sense, UN involvement embodies the tensions between the local and the international.
In recognition of its increasing involvement, the organization produced a Guidance Note from the Secretary General on United Nations Assistance to Constitution-Making Processes in 2009; this was revised in 2020.[41] The document recognizes that constitution-making is a sovereign process, and states as one of its overarching goals is that its efforts “ensure national ownership and reflect local context”. Constitution-making, the note states, “is a sovereign process that, to be successful, should be nationally owned and led. National ownership requires the engagement of national authorities, a broad range of political actors, ethnic, religious and minority groups, civil society, including women’s groups, and the general public.”[42]Another UN goal is to promote international standards. The UN is bound by its charter to promote adherence to international human rights and the rule of law. Thus, the Guidance Note insists that all constitutions must protect human rights, individual autonomy and respect for human diversity, and “express reference to equality between men and women” as well ensuring that children are bearers of rights. There is an obvious tension here—global standards will sometimes conflict with local cultural norms. The 2009 version of the Secretary General’s note took an active role here:
The UN should consistently promote compliance of constitutions with international human rights and other norms and standards. Thus, it should speak out when a draft constitution does not comply with these standards, especially as they relate to the administration of justice, transitional justice, electoral systems and a range of other constitutional issues...
All this seems unobjectionable from an international perspective, but in some societies, this may be deeply resisted by conservative social and religious forces. There is some irony that an international organization which is itself involved in imposing certain ideas is also the body that urges local participation in the process, and safeguards participation as a key process value.[43] The image is a body that is working at both the innermost and outermost rings in the set of concentric circles to advance a set of purportedly global values.
The UN Guidance Note embodies what Professor Sunstein calls an “incompletely theorized agreement” incorporating general principles at a high level of abstraction, even though there is some tension among them.[44] By virtue of the scope of the organization’s activities, including its constitutional activities the Guidance Note has actual regulatory effect for internal UN actors, advisors. And it does provide some potential legitimation for those who would criticize external actors for imposing norms. But it is worth noting that there are many drafting situations in which the UN is not a preferred partner. The organization’s heavy-handed normative biases, its bureaucratism, and its alliance with particular actors can be off-putting.
As an academic, one’s legitimacy as an advisor comes from a different place. It is epistemic, rather than political or institutional. It comes from knowledge of how relevant issues have played out and been handled in other contexts, and an informed speculation of how institutions used elsewhere might work in local conditions. It is very much an art more than a science, requiring the cultivation of trust. And it requires determining who the “client” is. Is it the organization that hires the expert? The local interlocutors? Or the people on whose behalf the document is being written?
In one project I was involved in, the United Nations supported a constitutionmaking process for a pacific island country. There were some locals who thought constitutional reform was needed, while others, including the then-prime minister, thought it was unnecessary. One of the expectations from the process was that it would secure greater equality for women in the patriarchal, traditional society, as well as greater freedom of religion. As the project advanced, however, some of the local participants began to have larger ambitions that would mark, from the international perspective, a regressive approach. Why, they asked, do we have all these rights provisions? This is just part of the colonial legacy, a foreign imposition on our traditional ways of harmony.
We should promote our own values over these foreign imports.What should the advisor do in such a situation? The UN, of course, had its institutional interest at stake: it could not be seen to support a project that ended up eliminating existing rights, much less failing to expand them. Especially with regard to gender equality, external pressure is often needed to secure greater rights, and the UN staff were bound by the principles of the Guidance Note to advance international norms. As an academic, my approach was different. It was to frame the interests at stake in terms of compatibility with traditional values, and to argue that there was no conflict between traditional norms and universal values. I could also point out that the rights provisions did little harm. But at the end of the day, if I took as my client the local people and their leaders, I would have had to acquiesce in the local demand for restoring tradition. In the end, the constitutional process did not succeed and so did not eliminate any rights, but did not expand them either.
One danger for the individual advisor is to become too involved in local politics. As noted above, Ghai has sometimes found himself in this position, as one of the leading figures in the field and with a large number of local connections in many places. As someone who was long involved in constitution-making in Papua New Guinea, Ghai has had to grapple with the demands of the island of Bougainville, which is a resource rich part of the country with a powerful independence movement. During the initial constitution-making process in preparation for decolonization from Australia, future national leaders did not want decentralization, but Bougainville demanded it. Ghai came up with a compromise: staged devolution, in which local units could ask for power over certain functions to be decentralized, but these need not be taken by every locality. Ghai apparently developed this idea with two other academics, a Canadian expert on federalism, and William Tordoff, who had taught at the University of Dar es Saalam.[45] But the proposal was defeated in the Constituent Assembly that produced in the 1975 Constitution, after a successful motion to delete the devolution chapter.
Ghai blamed another Kenyan advisor, who was working for the UN and advised leaders to leave out the provisions because of Kenyan experience.[46] This failure to include devolution led directly to a unilateral declaration of secession by Bougainville, the consequences of which continue to be felt and negotiated to this day. The story illustrates the power of creative advising, to help locals come up with solutions to their problems based on international experience and institutional innovation. But it also illustrates the perils of loose analogy, as the other Kenyan advisor ended up scuttling a solution and causing harm.Another set of perils comes from self-interested advisors. Peter Galbraith is an American diplomat from a prominent East Coast family who helped work for the independence of East Timor on behalf of the United Nations in the early 2000s, successfully negotiating an international oil treaty for that country and helping to design its constitution-making process. In 2003, after the American invasion of Iraq, Galbraith became an “unpaid advisor” to the Iraqi Kurds, eventually advising their negotiating team in the drafting of Iraq’s 2004 interim constitution known as the Transitional Administrative Law.
Many options were on the table as to what Iraq would look like. The Kurds ultimately wanted an independent state, which had been a dream since the end of the First World War. But they knew that this was a non-starter from the perspective of Turkey, which had sought to eliminate Kurdish identity and eventually had fought a bloody Kurdish terrorist group. The last thing any of Iraq’s neighbors wanted was a breakup of Iraq, because this might give their own minority groups similar ideas. The U.S. Government also preferred to keep Iraq whole. So, the Kurds decided pragmatically to seek autonomy within the Iraqi state.
Galbraith, however, became an active advocate of breaking up Iraq. He advised the Kurdish leadership to pursue independence, and drafted constitutional language that would give them control over oil contracts.
In the public sphere, he argued repeatedly that Iraq was an artificial creation whose peoples would best be served by breaking it up into three countries. He wrote several pieces in the New York Review of Books advocating this position, and indeed continued to give speeches in favor of the idea long after it was a practical impossibility.Unbeknownst to the editors of the New York Review of Books, Galbraith had a personal stake in Kurdish independence. In 2009, the New York Times reported that, through his private consulting firm, he was to earn something like $100 million if Kurdistan concluded a contract for oil development with a Norwegian oil company. While he appeared to be arguing for a public policy in the interests of the Kurds and the United States, Galbraith had a personal interest in the outcome, one that was hidden from others involved in the constitutional negotiations.
Galbraith’s Kurdish friends apparently did not view his oil interests as creating a conflict of interest. Both he and his advisees would presumably gain from the oil transaction. And because he was no longer employed by the United States Government, he violated no duty to the American taxpayer. On the other hand, his actual paying client at the time of the constitutional negotiations was a foreign oil company. This surely seems like information that would be relevant to other negotiating parties trying to evaluate the merits of his allegedly public-spirited views. Many Iraqi officials were livid when Galbraith’s interests became public. Feisal Amin al-Istrabadi, one of the main drafters of the Transitional Administrative Law, said “The idea that an oil company was participating in the drafting of the Iraqi Constitution leaves me speechless.”[47]
The Norwegian oil company eventually cut Galbraith out of the deal, but he ultimately won a substantial award in an international arbitration over the contract. Constitutional advice, it seems, can pay well for those willing to play fast and loose with the rules. As a footnote to the story, controversy continued to follow Galbraith in other assignments. Later posted to Afghanistan under the United Nations, Galbraith accused the UN of facilitating electoral fraud by Hamid Karzai, leading to his public firing by UN Secretary General Ban Ki Moon in 2009.
The advice to advisors that emerges from this section is several-fold: first, one should be careful of drawing lessons from one context that might not fit another; second, be aware of one’s biases; third, do not become too involved in local politics
or engage in self-dealing; and fourth, it is OK to let national leaders make their own mistakes. The state of constitutional knowledge is quite limited, and all foreign advisors can do is provide our best guesses as to institutional consequences of design choices.[48]
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