The work of Tom Ginsburg and Aziz Huq is about constitutional liberal democracy. Their article “How to Lose a Constitutional Democracy” brought a legal perspective to a debate dominated by political scientists. Their subsequent book was titled How to Save a Constitutional Democracy. Ginsberg has also written another piece (along with James Melton and Zachary Elkins) called, “On the Evasion of Executive Term Limits” is in the same vein. Their work examines the ways constitutionalism has the potential to undermine or preserve democracy.

This unique perspective to the debate is mind-shattering because it challenges the fundamental argument of Fareed Zakaria in his seminal piece, “The Rise of Illiberal Democracy.” Zakaria argued the emphasis on democratic institutions had led to the rise of the illiberal democracy where human rights were not respected despite the presence of regular free elections. His remedy was to shift American foreign policy to focus on liberal rights and constitutional guarantees rather than democratic elections. This reminds me of Huntington’s prescription to focus on the creation of strong political institutions before nations transition to democratic governance. Both theorists argued democracy had necessary prerequisites. Their absence led towards significant problems when the nation democratized.

But Ginsburg and Huq indirectly challenge Zakaria’s premise. A constitution is not a liberal institution. It is liberal when it is designed to protect human rights and limit the power of the state. A constitution not only does not always protect human rights but may be used to actively undermine civil liberties. A constitution limits the state and its related institutions, but it also defines powers. These powers create the potential for abuse.

Along with their recent book How to Save a Constitutional Democracy, they wrote a shorter article called, “Democracy’s Near Misses” in the Journal of Democracy. This article gives three examples where democracy was saved through the decisions of individuals or institutions. This article is fascinating because it makes up a very small part of their book. But it distills the essence of their entire work. Constitutional Democracy is saved through the interventions of critical decisions that become near misses.

The near misses they discuss include interwar Finland, Colombia’s unconstitutional constitutional amendment and most recently Sri Lanka’s 2015 Presidential election. The last example is the most remarkable. They give an account of how the President, Rajapaksa, used his executive power to centralize his authority through the “degradation of rule-of-law institutions.” His administration was known for corruption and nepotism. But as the 2015 election approached, his former minister of health, Maithripala Sirisena, declared his candidacy for the Presidency. He consolidated the opposition and shocked the world with an electoral victory. Rajapaksa nearly declared a state of emergency to annul the vote. But resistance from the army, police and his own attorney general forced him to recognize defeat.

But wait. This is not the end. This past year Sirisena sacked his Prime Minister Wickremesinghe and replaced him with the former President Rajapaksa. Unfortunately, the Sri Lankan constitution gives Parliament the right to choose their own Prime Minister. The country’s Supreme Court unanimously ruled against the President. This led the President to back down and reinstate Wickremesinghe as Prime Minister.

The story of Sri Lanka shows a near miss does not preclude a future challenge to democracy. Nor does it mean the hero cannot transform into a villain. President Sirisena was a champion of democracy three years ago. But today has become a threat. This is the Democracy Paradox.

jmk, carmel, indiana,

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