CONSTITUTIONALISM AND DEVELOPMENT: A MISMATCH OR A DREAM-TEAM?
Introduction
Development people tend not to say much about
constitutionalism. And yet much of what they talk about has definite and
profound implication for constitutionalism. After all they often use ideas such
as the rule of law, good governance, accountability, rights, and
decentralisation – all of which are common currency in constitutional law as
well as being main methods of implementing constitutionalism.
On the other side of this coin people
interested in constitutionalism tend not to say much about development. Yet
much of what they talk about (largely the concepts listed in the last
paragraph) actually needs, as they often recognise, a method of being implemented.
In the last part of this article I will introduce the notion of ‘developmental
operativity’, which I intend as a means of filling the practical gap between
constitutionalism and development.
This situation is, however, understandable in
the sense that, in constitution-building processes, the international community
is not ordinarily perceived as having a role. The development of constitutionalism is indeed
a peculiarly local phenomenon, framed and bounded by local politics, whereas
law-and-development (LAD) is conducted globally and mainly by international
organisations operating under international law. Development, to put it simply,
does not wish to get caught in the cross-hairs of constitutional politics.
There is one large exception to this. Regime
transitions following civil war or invasion (for example, in Cambodia, Timor
Leste, Iraq, Afghanistan) are sometimes internationally sponsored and in such
cases the constitution-making power is exercised by the international
community, sometimes directly, but more often by providing a framework of law
and organisation designed to bring about a new constitution.[1]
Often, it is true, international advisers and even organisations such as the
Venice Commission are invited to advise on particular aspects of
constitution-making or constitutional reform.[2]
But on the whole the development of constitutionalism as such is, and should
be, regarded as within the exclusive competence of local institutions and
processes. Development does not wish to be, and especially does not wish to be
seen, as overtly political, and therefore partial in local political contexts.
Development imperatives are thus viewed as existing irrespective of either
ideology or political process. Later in the article I discuss the Sustainable
Development Goals (SDGs), which are a good example of the presumed global
consensus around development principles. Accordingly, the way in which the
international-development community seems to blind-eye constitutionalism is
both pragmatic and principled.
If development does not engage
constitutionally, we can also quite fairly ask why constitutionalists do not
engage developmentally. Constitutionalism seems to be concerned with finding
the right rules or institutions rather than the best practical methods of
implementing or creating them. Even if one examines constitutional texts, they
are strikingly lacking in developmental statements. They appear not to recognise
the need for development, assuming a kind of legal stasis now the right rules
have been found.
Of course constitutions sometimes do
recognise that the constitution itself has to develop over time, and it is
obvious that a new state especially cannot emerge with a working constitution,
fully armed, so to speak, from the head of Zeus. These constitutions often
require organic laws to be developed in prescribed areas.[3]
The Directive Principles of State Policy in India’s constitution engage very
much with development considerations. One can even argue that the Indian
Constitution is designed to define and achieve development in a broad sense.[4]
On the whole, however, this is a rare situation. Even in their Preambles, let
alone in their substantive provisions, constitutions are laid out merely as
definitive instruments for the making of decisions rather than the achievement
of development objectives per se. It is as though we live in lawyers’ procedural
republics where it is left to the institutions, principally of course the
executive power, to define development and lay out how it is to be achieved.
This is all understandable. After all,
constitutions are drafted mainly by lawyers rather than economists or
development specialists, and this may explain the emphasis on process and
justiciability rather than actual socio-economic outcomes. Economists will of
course insist that protection of property rights and the sanctity of
transactions can only be achieved through the rule of law and judicial
independence.[5]
Courts tend to tread extremely warily where socio-economic considerations rather
than vested property rights come into play. The view is often (although not
always) taken that socio-economic questions are multi-polar rather than
bi-polar, and are unsuitable to be judged via the process of litigation. Constitutional
enforcement of development objectives, such as (in South Africa) public housing
entitlements[6] or
(in Indonesia) the prescription of a minimum education budget,[7]
are quite rare. In Vietnam there was a significant debate concerning the constitutional
right to free primary education, which grated against the move towards a
market-based economy. The right was ultimately seen as an aspiration rather
than an actual entitlement.[8]
Yet in spite of this lack of a suitable
bridging between development and constitutionalism, if developmental goods
include the rule of law, accountable institutions, and human rights – and we
will see that they do - it is hard to see how these are not constitutional
issues, or at least issues that impact, more broadly, on the actual condition
and experience of constitutionalism.
It is therefore the main burden of this article
that the relationship between development and constitutionalism bears some
exploration, and should be more clearly articulated than it is. When
development people speak of the rule of law, or of judicial or electoral
reform, or human rights compliance, or access to justice, they are implicitly
addressing the development of constitutionalism, even as they fight rather shy
of admitting it. Yet it is rare for development projects to address
constitutional development as such in any direct manner. It might be helpful to
both communities if attempts were made to explain how constitutionalism can assist
development, and how development can assist constitutionalism. In this article
I attempt to lay down some basic ideas that might inform such attempts.
Trajectory of the law and development
movement
It may be helpful in understanding the
relationship between constitutionalism and development to look briefly first at
the history of the LAD movement, and understand how it has developed over time.
Although one might imagine that law has
always aimed not just at stability but at the general betterment of society,
the term ‘law and development’ is usually used to indicate the activity of law
reform in developing countries, led by the United States and national and
international development agencies, including international, multilateral,
financial institutions such as the World Bank and the International Monetary
Fund, or, in Asia, the Asian Development Bank.[9] The ‘law
and development movement’ indicates this activity and the scholarly and
official activity, discussion, and transactions around it. The consensus around
the rule of law as a guiding principle for legal reform of course goes both
deeper and wider than law and development (‘LAD’).[10] It was, for
example assumed to be part of the justification for British rule in Burma,
despite the lack of any obvious fit between English law and Burmese society.[11] Likewise it
is assumed by the current NLD government in Myanmar and its international
partners that the rule of law is a large priority amongst the many calls on
their attention via-a-vis the reform agenda generally; indeed Daw Aung San Suu
Kyi herself has consistently espoused the rule of law since Myanmar’s opening
in 2011.[12] The idea of
Max Weber that capitalist development depends on having a modernised
legal-rational state has dominated LAD thinking in spite of its uneven
trajectory.[13]
An international consensus around the
desirability of the rule of law as an aspect of development has largely
persisted over the last 70 years, despite the twists and turns of the LAD
movement. We are just not very clear as to how important it is compared to
other efforts in LAD, how to implement it effectively in practice, and whether
the rule of law is essentially a cause, or a consequence of, development.
Lawyers and legal scholars are largely of the view that the rule of law is
valuable as an ‘unqualified human good’[14]
irrespective of its development potential, in that it is required for
fulfilment of social justice and stability, including in Asia.[15] Economists
on the other hand are largely of the view that the rule of law and the
institutions it drags along in its wake are part of the institutional
arrangements that are essential for sustained economic growth.[16] This view
holds that the rule of law guarantees property rights and the security of
contracts, thereby encouraging investment. This view was very widely held in
particular following the end of the cold war and the espousal of neo-liberal
economics that followed. Scepticism has nonetheless been expressed since the
early 1970s, and is still expressed by some, as to both the efficacy and the underlying
purposes of LAD.[17] The rule of
law in particular is seen by some
commentators as a form of legal colonialism,[18] and is described another as a ‘rule of law theatre’.[19]
LAD has been through several phases or
‘moments’, as the guardians of its history and theory call them.[20] These
moments display sequence: in effect they spell out a particular trajectory of
thought and experience,[21] reflecting
the ideas of the time, but not so often, unhappily, the actual lived experience
of LAD itself. It may indeed be obvious that in this field, especially when it
comes to legal technical assistance[22] (that is,
projects delivering LAD), there is an unusually large gap between theory and
practice. This might indeed be a hint to socio-legal scholars to investigate
this field more than they have managed so far to do. Some analyses stress the
importance of rule-of-law in its social context,[23] or refer to
‘real legal certainty’ as a more socially embedded concept than the rule of
law, even if overlapping with it in many ways.[24] However,
this field is so large that proving anything about it conclusively is
particularly challenging.[25]
The LAD movement was inaugurated by President
Kennedy in 1961, announcing the ‘decade of development’ at the United Nations.[26]
LAD proceeded to work on law reform in South America and Africa, on the
assumption of a direct linkage between law reform, economic progress, and
political and social cohesion. This movement was inspired by the Keynsian idea
of state-led development. In due course this movement extended to Asia, with
Indonesia and later China, Vietnam and the Central Asian republics, and now
Myanmar, attracting much international attention.[27]
‘Legal technical assistance’ (LTA) was the phrase used to describe the activity
of organising and carrying out projects in this field, funded by international
development agencies, and delivered from ‘donors’ to ‘donees’ via
‘interventions’ by the former.[28]
Judicial and court reform was a major part of LAD efforts during this
‘inaugural moment’.
In the early to mid-1970s (the timing was not
unconnected with the US military debacle in Vietnam) it was realised that LTA
had not succeeded in delivering on its optimistic promises, despite enormous
efforts and expenditure, especially on judicial-reform-related LTA.[29]
LAD went under a cloud and funding for LTA activity declined, although it was
by no means terminated. Judicial reform was nonetheless still seen as
developmentally valuable in itself, in the sense described earlier,
irrespective of the larger picture of LAD activity. Accordingly the rule of law
was never less than implicit in LAD even at its lowest point. This period is
known as the ‘critical moment’.
When the cold war ended in 1989 and many
countries previously under communism or one-party states embraced multi-party
democracy and a market economy, LAD revived and many of the assumptions of the
inaugural moment were once more in the ascendant.[30]
However, this ‘revivalist moment’ was different from LAD’s earlier iteration in
that there was less emphasis on political reform or societal transformation,
and more on purely economic issues, which were seen as technical in nature and
unrelated to society at large or to the particularities of local politics.[31]
This moment was defined by the developments we know as globalisation, which has
in the early 21st century met some now-familiar and severe
challenges that impact on the theory of LAD. In particular the Hayekian
neo-liberalism of the revivalist moment is critiqued as neglecting the social elements
or consequences of ‘development’.[32]
This has led to renewed emphasis on ‘good governance’ and social justice issues
such as access to justice. The SDGs, discussed below, make much mention of law
and social justice as defining, not just achieving, development.[33]
The period since 2000 has been labelled as
LAD’s ‘post-moment’ or ‘fourth moment’,[34]
indicating first that the previous neo-liberal revivalist moment no longer
defines LAD, but that LAD has also become complex and multi-faceted, or
pluralistic in nature. Accordingly it is hard to coin a lucid description that
fits the present phase other than to say that it goes beyond and in many ways
rejects the neo-liberalism of the revivalist moment. Part of this pluralism has
been to take LTA and related projects away from the complete dominance of
development banks and international development agencies so that there are now
multiple LTA players, including local and international NGOs, universities, bar
associations, and others.[35]
It is often overlooked in critical discussion around LAD in this moment that
actual projects and strategies are generally determined and led by national
governments and essentially nothing can, in this post-moment, be actually
imposed on donees as assumed by the earlier critiques mentioned above. At any
rate, there is now probably even more space for rule-of-law based LTA than at
any time in the past.
In closing this section I wish to make one
further point about the definition of development that seems highly relevant to
Asia. Over time the concept of development has moved towards a broader notion
than just the improvement of economic indicators, important as these are. The SDGs
do speak about the need for trade liberalisation, investment, the creation of
good employment, and the abolition of extreme poverty. Yet the overall
impression, in statements in which goals, means and targets seem to be mixed
almost indiscriminately, is that economic development is viewed as a means to
achieving certain ends rather an end in itself.
In Asia, on the other hand, economics has largely defined development,
and only recently has a broader definition of development become respectable.[36]
The economic-development imperative even led to a centralisation of powers,
under powerful party systems or military or strong-man leaders, that tended to
cut against the rule of law, constitutionalism, the separation of powers,
individual rights, and democratic pluralism. This system has been called the
Asian developmental state, a state that intervened in the economy
instrumentally and without much tolerance of democratic or legal vectors that
might delay the process of making and implementing decisions.[37]
However, in recent years this clear gap in Asia between development and
constitutionalism has to some extent been bridged by constitutional reforms,[38]
and development has shifted somewhat towards the social rather than the purely
economic.
Law and development: Its goals and their
relevance to constitutionalism
Development, it may easily be observed,
itself develops. In this section I explore the contemporary definition of
development. In the world of the 21st century indeed development has
developed like pond-weed, these days obliterating jurisdictional, conceptual,
administrative, and political boundaries as it goes along. In 2000 the UN Millennium
Development Goals numbered eight; they had tenuous connection with law or
politics or public administration, or anything that might in practice have
agency to deliver them, other than a vague reference to international
partnership.[39]
In 2015, by contrast, development had been redefined by the UN’s SDGs,
numbering 17, with no less than 169 specific targets, engaging over a wide
range of topics, and with specific references this time to law, accountability,
human rights, and good governance.[40]
From a movement development has turned into an industry and then into a crusade,
cascading billions of dollars a year and multiplying its modes and areas of
application exponentially right across the world. The rule of law as we have
seen is very much nowadays at the centre of all this activity. The size and
range of the development industry is now such that a clear definition of LAD currently
looks to be well-nigh impossible, and in a sense self-defeating as it engages
more issues, more players, and more processes, bursting out of the traditional
‘donor-donee’ matrix into a messy, pluralistic, public and private,
variously-driven and variously-delivered enterprise.[41]
We may take
as just one example Goal 16 of the SDGs (it is set out in full with its relevant
targets in the Appendix to this article). This Goal is especially important in
a LAD context, and is stated as follows: it is to ‘promote peaceful and
inclusive societies for sustainable development, provide access to justice for
all and build effective, accountable and inclusive institutions at all levels’.
This is a big ask and is supposed to be achieved by 2030 (although there is here
no specific benchmark of success). Goal 16.3 points to promoting the rule of
law at the national and international levels and ensuring equal access to
justice for all, but is specific only in the matters of reducing the
proportions of victims of crime and of un-sentenced detainees. Goal 16.5 demands
a reduction in instances of corruption; 16.6 development of effective,
accountable and transparent institutions at all levels; 16.7 ensuring
responsive, inclusive, participatory and representative decision-making at all
levels; 16.10 ensuring public access to information and protecting fundamental
freedoms, in accordance with national legislation and international agreements.
Goal 16.a is to strengthen relevant national institutions, including through
international cooperation, for building capacity at all levels; this refers
specifically to independent national human-rights institutions in compliance
with the Paris Principles.[42]
Goal 16.b is to promote and enforce non-discriminatory laws and policies.
In short form Goal 16 indicates a strong push
for the improvement of rights, justice, and democratic processes at all levels
of decision-making. Most importantly it speaks to institutional performance and
accountability. In other words, although it does not use the word, it is
assuming that a large slice of constitutionalism
may be achieved or at least improved across the world by 2030.
Now of course even this elaboration of goals
and targets does not necessarily tell us a great deal about what is meant by
the rule of law, by accountability, access to justice and so on. However, the
World Justice Project in its 2019 data has supplied this omission by developing
the most sophisticated, comprehensive, and extensive system there is for
reviewing rule of law conditions across the world, and these embrace most
elements of access to justice, rights, and accountability.[43]
It is able to give scores and rankings overall to 126 states, and on each of 44
criteria, ranging from 1.1, ‘government powers are effectively limited by the
legislature’, to 8.7, ‘due process of the law and rights of the accused’. These
criteria take us through aspects of constraint on government powers, absence of
corruption, open government, fundamental rights, order and security, regulatory
enforcement, civil justice, and criminal justice. Every single criterion used
in this project, I suggest, has implications in terms of constitutionalism,
viewed broadly – indeed the 44 criteria it sets out provide a pretty comprehensive
picture of what we mean by constitutionalism under the rule of law in the 21st
century. If anyone looking at these WJP data still wants to claim that the rule
of law is a nebulous concept, described by one scholar as ‘a meaningless slogan
devoid of any determinative content’,[44]
then I suggest we do not have to take this very seriously. It seems clear that for
practical purposes we know precisely what the rule of law is, and our problems
lie more in the area of how to achieve it. It remains true, of course, that
some will, in a particular context, emphasise one aspect rather than another;
we can also disagree about precisely which ingredients should be included or
excluded from a definition. The same could be claimed with regard to, say,
chocolate cake, molluscs, or situation comedy. It does not mean we have no
conceptual apparatus at our disposal.
Constitutionalism and reform trajectories
Having discussed development in some detail,
let us now take a further look, moving on from constitutions, at ‘constitutionalism’.
This is in essence a familiar concept denoting a system of government in which
political actors are bound by constitutional norms which are actually enforced
in practice, whether by exercise of judicial power, or modes of political
accountability.
British constitutional law scholar Stanley de
Smith famously defined it as follows:
Constitutionalism is practised in a country where the government
is genuinely accountable to an entity or organ distinct from itself, where
elections are freely held on a wide franchise at frequent intervals, where
political groups are free to organize in opposition to the government in office
and where there are effective legal guarantees for fundamental civil liberties
enforced by an independent judiciary.[45]
There is nonetheless a question whether
constitutionalism represents a normative standard against which
constitutional systems can be judged, as de Smith implies, or simply a
description of the version of constitutional values that a system
happens to have. Constitutionalism is ordinarily seen as normative in character,
but of course the normative systems that seek to implement constitutionalism
are organic or contingent in nature and differ considerably in detail across the
various models and actual constitutional systems we find in the world, which
scholars have tried to categorise in various ways.[46]
Thus constitutionalism is an abstract notion the practical consideration of
which is at the same time possible through an approach that Kim Lane Scheppelle
has labelled ‘constitutional ethnography’. She explains this in the following
terms:
Constitutional ethnography does
not ask about the big correlations between the specifics of constitutional
design and the effectiveness of specific institutions but instead looks to the
logics of particular contexts as a way of illuminating complex interrelationships
among political, legal, historical, social, economic, and cultural elements.
The goal of constitutional ethnography is to better understand how
constitutional systems operate by identifying the mechanisms through which governance is
accomplished and the strategies through which governance is attempted, experienced, resisted and
revised, taken in historical depth and cultural context.[47]
If we look at
constitutionalism in this light, Janus-faced towards general concepts and
specific contexts, then we may discern a relationship between the precepts of
international development and the exigencies of local constitutional politics.
Despite the reluctance of traditional LAD that we have noted above to involve itself
in constitution-making, if we see LAD as multi-faceted and by no means confined
to what I have labelled ‘the donor-donee matrix’, then many resources can be
brought to bear on the development of constitutionalism.[48]
Projects such as the WJP and the SDGs are right not to specify the precise
legal, or sometimes non-legal, instruments by which the rule of law, human
rights and access to justice are to be achieved. This requires too granular –
and potentially quite inappropriate and intrusive – an approach. Nonetheless
they force us to consider what are the precise purposes and desired effects of
rule-of-law development, and how constitutionalism can embody and bring into
reality these lofty aims.
The SDGs constitute a contemporary culmination of
our concept of development, and render it all the more important that the LAD
community and the comparative constitutionalism community realise that their
respective fields of research have by now become interlocked to a degree that
implies that mutual disdain is no longer an option.
Constitutionalism is achieved in different ways. Some systems
employ informal instead of formal norms, or perhaps more usually they employ a combination
of the two.[49] I
believe that development can contribute significantly to constitutionalism and
that constitutionalism, at the same time, can contribute significantly to
development. Development needs constitutionalism to provide a conceptual avenue
for realisation of its desire for the rule of law and good governance. Constitutionalism
on the other hand also needs development as a process to provide these very
ideas via institutional reform. Development has good experience of encouraging
and embedding these ideals. Constitutionalism can provide the local knowledge
and political will to assist in this task.
What I think
is lacking in all this is a discourse that ties the two ideas firmly together.
My suggestion is that this discourse can be built around a notion of
‘developmental operativity’. The developmental operativity of constitutionalism
lies in my view in three things that are fundamentally related:
First, the rule of law: as we have seen,
under institutional economics constitutionalism stresses the rule of law as
necessary for development in terms of protection of property rights.
Second,
political stability: violent conflict is development’s worst enemy, whereas
political stability under constitutional government facilitates long-term
planning.
Third, justice:
Development increasingly embodies justice, and justice is also a means of
attaining development.
Bringing
development and constitutionalism together in a dream-team is also an urgent
task. The lawyers’ procedural republics are actually under threat globally if
they do not deliver wide distribution of the benefits of development. For too
long development has been development for those who are already fortunate.
There is a
large opportunity in Asia to achieve this conjunction of development and
constitutionalism. Asia has proceeded on the basis that there is no sense in
constraining a state that is as a result ineffective in delivering development.[50]
Constitutionalism assumes a strong state that can be made stronger by adherence
to constitutional principles; but first, a state must be actually built and
must be powerful. For this reason the developmental emphasis in Asia even since
the late 19th century has been strongly on the construction of
states that would be equal to the overbearing power of states in the West. Part
of this project has been political development that has gradually embraced
constitutionalism, albeit admittedly in a somewhat patchy and uncertain manner.
By and large
this has resulted in the emergence of constitutional government, or at least
moves in that direction, across most of Asia. The centralised developmental
state, with Japan as its prototype, reached the zenith of its accretion of
power in the 1980s and 1990s.[51]
Japan itself adopted constitutionalism under its 1946 Constitution, and has
maintained a democratic system of government throughout the post-war period.[52]
The developmental state elsewhere across Asia appears to be morphing in some
ways into a constitutional state. From 1978 China moved to open its market and
become more reliant on rule of law as opposed to party dictat;[53]
much the same has happened in Vietnam from 1987,[54]
while Hong Kong has been engaged in a tussle over democratic institutions and
the rule of law since the hand-over of sovereignty in 1997.[55]
In the mid-to-late 1980s Taiwan and South Korea, having achieved striking
economic development, adopted multi-party democracy and constitutional review
in place of strong-man rule and a dominant party system.[56]
In the Philippines the emergence of ‘people power’ and the idea of popular
sovereignty removed a dictator and resulted in a new constitution which has
provided a basis for development, which now at last is taking off.[57]
In 1999 Indonesia, also removing a dictator,
began its ‘reformasi’ with four major constitutional amendments during
1999-2002, also creating multi-party democracy and constitutional review, that
transformed the country from one of the most centralised states in Asia into a
decentralised state based on constitutional government.[58]
Myanmar has since 2011 transitioned under its 2008 constitution from absolute
military rule to something like a democratic structure supervised by praetorian
protection; the jury is still out on Myanmar’s transition to civilian-military
cohabitation, but constitutionalism and development have undoubtedly both
advanced since 2011.[59]
While Singapore has remained stable under its dominant-party system, it still
cleaves strongly to the rule of law as a mantra of development.[60]
Malaysia, having progressively centralised its federal state since the early
1970s, has gradually abandoned the dominant-party system in favour of a
two-party system, finally rejecting a corrupt party that had dominated its
politics since 1957; it is now reforming the state towards better rule of law
and good governance.[61]
Thailand meanwhile has developed its economy strongly but seems able to
implement constitutionalism only on a temporary basis, as it continues to alternate
an unstable civilian democracy with military rule.[62]
These developments,
however, appear to raise a question as to trajectory and causation. In Asia,
has the development of rule of law and constitutionalism preceded development,
or vice versa? Do we reach constitutionalism through developing, or do we reach
development through constitutionalism? The evidence suggests that in Asia at
least development has had priority over constitutionalism, but that as
development has progressed the merits of constitutionalism have been seen.
Indeed wider experience across the world seems to show that in the longer term at
least a state can be stronger, more endurable, and create better development if
it is governed under the rule of law and constitutionalism. It is striking that
those league tables that feature ‘rule of law’, ‘absence of corruption’, and
‘political freedom’ valorise countries that also score highly on developmental
indices such as low infant mortality, high life expectancy, and gender
equality.
However, the
lesson is also that ideals as such will not gain traction or support unless
they deliver actual benefits to communities and offer rights and opportunities
to individuals. In Asia we can see the taking of a pragmatic approach in which
the delivery of actual benefits across
most of the population, not just the few, has been a strong focus of
development efforts. These benefits have now embraced the reduction of risk of
losing that which has been gained, and accordingly the acquisition of voice in
the political system. The solution of the riddle of development and
constitutionalism, under the contemporary notion of development, lies in the empowerment
of communities and individuals, and this can only be achieved sustainably under
a rule of law that has the quality of developmental operativity. If the
techniques of the LAD movement (that is to say, LAD at its best, not at its
most obtuse) can be brought to bear by states in constructing social justice
based on constitutionalism, the prospects, not just for Asia, but globally,
might well be good. However, in order to achieve developmental operativity for
constitutionalism we need to understand much more than we do about what
Tamanaha calls the ‘lessons of law and development’[63]
as its has evolved over the last 60 years.[64]
These lessons involve an understanding of the relationship between
constitutional reform and societal fit; in other words we can match development
strategies with constitutional ethnography in order to ensure that reforms are
pragmatic, lasting and carefully thought through. This resolution of the riddle
of development and constitutionalism is not at all far from Asian experience
and trajectory, and perhaps the ‘Asian century’ will provide lessons for the
rest of the world in both development and constitutionalism.
Appendix: Goal 16 of the SDGs
SDG Goal 16:
Promote peaceful and inclusive societies for sustainable development, provide
access to justice for all and build effective, accountable and inclusive
institutions at all levels
16.1
Significantly reduce all forms of violence and related death rates everywhere
16.1.1 Number of victims of intentional
homicide per 100,000 population, by sex and age
16.1.2 Conflict-related deaths per 100,000 population, by sex, age
and cause
16.1.3 Proportion of population subjected to
physical, psychological or sexual violence in the previous 12 months
16.1.4 Proportion of population that feel
safe walking alone around the area they live
16.2 End
abuse, exploitation, trafficking and all forms of violence against and torture
of children
16.2.1 Proportion of children aged 1-17 years
who experienced any physical punishment and/or psychological aggression by
caregivers in the past month Report of the Inter-Agency and Expert Group on
Sustainable Development Goal Indicators (E/CN.3/2016/2/Rev.1) 21/25 Goals and
targets (from the 2030 Agenda) Indicators
16.2.2 Number of victims of human trafficking
per 100,000 population, by sex, age and form of exploitation
16.2.3 Proportion of young women and men aged
18-29 years who experienced sexual violence by age 18
16.3 Promote
the rule of law at the national and international levels and ensure equal
access to justice for all
16.3.1 Proportion of victims of violence in
the previous 12 months who reported their victimization to competent
authorities or other officially recognized conflict resolution mechanisms
16.3.2 Unsentenced detainees as a proportion
of overall prison population
16.4 By
2030, significantly reduce illicit financial and arms flows, strengthen the
recovery and return of stolen assets and combat all forms of organized crime
16.4.1 Total value of inward and outward
illicit financial flows (in current United States dollars)
16.4.2 Proportion of seized small arms and
light weapons that are recorded and traced, in accordance with international
standards and legal instruments
16.5
Substantially reduce corruption and bribery in all their forms
16.5.1 Proportion of persons who had at least
one contact with a public official and who paid a bribe to a public official,
or were asked for a bribe by those public officials, during the previous 12
months
16.5.2 Proportion of businesses that had at
least one contact with a public official and that paid a bribe to a public
official, or were asked for a bribe by those public officials during the
previous 12 months
16.6 Develop
effective, accountable and transparent institutions at all levels
16.6.1 Primary government expenditures as a
proportion of original approved budget, by sector (or by budget codes or
similar)
16.6.2 Proportion of the population satisfied
with their last experience of public services
16.7 Ensure
responsive, inclusive, participatory and representative decision-making at all
levels
16.7.1 Proportions of positions (by sex, age,
persons with disabilities and population groups) in public institutions
(national and local legislatures, public service, and judiciary) compared to
national distributions
16.7.2 Proportion of population who believe
decision-making is inclusive and responsive, by sex, age, disability and
population group
16.8 Broaden and strengthen the participation
of developing countries in the institutions of global governance
16.8.1 Proportion of members and voting
rights of developing countries in international organizations Report of the
Inter-Agency and Expert Group on Sustainable Development Goal Indicators
(E/CN.3/2016/2/Rev.1) 22/25 Goals and targets (from the 2030 Agenda) Indicators
16.9 By
2030, provide legal identity for all, including birth registration
16.9.1 Proportion of children under 5 years
of age whose births have been registered with a civil authority, by age
16.10 Ensure
public access to information and protect fundamental freedoms, in accordance
with national legislation and international agreements
16.10.1 Number of verified cases of killing,
kidnapping, enforced disappearance, arbitrary detention and torture of
journalists, associated media personnel, trade unionists and human rights
advocates in the previous 12 months
16.10.2 Number of countries that adopt and
implement constitutional, statutory and/or policy guarantees for public access
to information
16.a
Strengthen relevant national institutions, including through international
cooperation, for building capacity at all levels, in particular in developing
countries, to prevent violence and combat terrorism and crime
16.a.1 Existence of independent national
human rights institutions in compliance with the Paris Principles
16.b Promote
and enforce non-discriminatory laws and policies for sustainable development
16.b.1 Proportion of population reporting
having personally felt discriminated against or harassed in the previous 12 months
on the basis of a ground of discrimination prohibited under international human
rights law
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(Abingdon: Routledge, 2017)
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[1] P. Dann and Zaid Al-Ali, The
international pouvoir constituent – constitution-making under external
influence in Iraq, Sudan and East Timor, Max Planck UNYB 10 (2006), 1.
[2] See, however, work at Melbourne Law School: <https://law.unimelb.edu.au/constitutional-transformations/research/international-and-domestic-interfaces#research>;
P. Craig, Transnational
constitution-making: The contribution of the Venice Commission on Law and
Democracy, Indiana University Maurer School of Law, 2017, available at <https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=3668&context=facpub>; G. Schaffer, T. Ginsburg and T. Halliday (ed),
Constitution-making and Transnational
Legal Order (Cambridge: Cambridge University Press, 2019).
[3] The development of
local government under the 1987 Constitution of the Philippines, for example,
specifically prescribes (Article X, especially s.7) the contents of a local
government code that is required to be passed, and was passed in 1991; A.
Harding, The constitutional dimensions of
decentralisation and local self-government in Asia, in B. Oomen and A.
Bedner (ed), Real Legal Certainty: Essays
in Honour of Jan-Michiel Otto (Leiden: Leiden University Press, 2018), p.69.
[4] A. Thiruvengadam, The
Constitution of India: A Contextual Analysis (Oxford: Hart/ Bloomsbury,
2017), ch.4.
[5] T. Ginsburg, Does the rule of law matter for economic
development? Evidence from East Asia, 34 Law and Society Review (2000), 829;
S. Haggard, A. McIntyre and B.L. Tiede, The rule of law and economic
development, 11 Annual Review of Political Science (2008), 205; L. Hammergen, Latin
American experience with rule of law reforms and applicability of
nation-building efforts, 38:1 Case Western Reserve Journal of International Law
(2006), 63. See also the Hong Kong University Socio-Economic Rights Portal at <http://www.law.hku.hk/hrportal/socio-economic-rights>,
accessed April 20, 2019.
[7] See Education 4th
Budget Case, Case Number 013/ PUU-VI/ 2008, in the Constitutional Court of
Indonesia.
[8] See <https://www.aljazeera.com/indepth/features/2013/04/2013441131475898.html>,
accessed April 20, 2019.
[9] D. Trubek, Law and development, Encyclopedia of Social and Behavioural
Sciences (Oxford: Elsevier Science, 2001), 8442; J. Kroncke, Law and development as anti-comparative law,
45 Vanderbilt Journal of Transnational Law (2012), 477.
[10] M. Krygier, Four puzzles about
the rule of law: Why, what, where? And who cares?, in J. Fleming (ed), Getting
to the Rule of Law, (New York: New York University Press, 2011), 64.
[11] J.S.
Furnivall, Colonial Law and Practice: A Comparative Study of Burma and
Netherlands Indies (New York: New York University Press, 1948); T. Stanton, Law and economic development: The cautionary
tale of Burma, 1:1 Asian Journal of
Law and Society (2014), 165.
[12] N. Cheesman,
Opposing the Rule of Law: How Myanmar’s Courts Make Law and Order (Cambridge:
Cambridge University Press, 2016).
[13] F. Fukuyama, The Origins of Political Order:
From Pre-human Times to the French Revolution (New York: Farrar, Straus and
Giroux, 2011), 245 et seq.
[14] E.P. Thompson, Whigs and Hunters: The Origins of the Black Act (New York:
Pantheon, 1975), 263.
[15] See, generally, R. Peerenboom, Varieties of
rule of law, in R. Peerenboom (ed), Asian Discourses of Rule of Law
(London: Routledge, 2003).
[17] S. Humphreys, Theatre of the Rule of
Law: Transnational Legal Intervention in Theory and Practice, (Cambridge: Cambridge
University Press, 2010).
[18] J.A. Gardner, Legal Imperialism: American Lawyers and
Legal Aid in Latin America (Madison: University of Wisconsin Press, 1980); L. Nader, Promise or
plunder? A past and future look at law and development 2:7 Global Jurist,
Article 1 (2007).
[20] Trubek, supra,
note 10; S. Newton, Law and development,
law and economics and the fate of legal technical assistance, in J. Arnscheidt, B. van
Rooij and J.M. Otto (eds), Lawmaking for development : explorations into the
theory and practice of international legislative projects (Leiden: Leiden
University Press, 2008).
[21] B. Tamanaha,
The lessons of law and development
studies, 89 American Journal of International Law (1995), 470.
[24] Oomen and
Bedner, supra, note 4.
[25] See, e.g.,
V. Taylor, P.
Bergling, and J. Ederlof (eds), Rule of Law Promotion: Global Perspectives, Local
Applications (Uppsala: Iustus
Forlag, 2010).
[27] C. Rose, The “new” law and development movement in
the post-cold-war era: A Vietnam case study, 32:1 Law and Society Review (1998), 93; P. Bergling, Rule of Law on the international
Agenda: International Support to Legal and Judicial Reform in International
Administration, Transition and Development Co-operation (Antwerp, Oxford:
Intersentia, 2008), ch.4.
[29] D. Trubek and M. Galanter, Scholars
in self-estrangement: Some reflections on the crisis in law and development
studies in the United States, Wisconsin Law Review (1974), 1066.
[30] T. Carothers, Rule of law revival, 77(2) Foreign
Affairs (1998) 95.
[31] K. Rittich, The future of law and development: Second
generation reforms and the incorporation of the social, in D. Trubek and A.
Santos (eds), The New Law and Economic
Development: A Critical Appraisal (Cambridge: Cambridge University Press,
2006). An astonishing example of the virtual banishment of the social and
political from development is K. Pistor and P. Wellons, The Role of Law and
Legal Institutions in Asian Economic Development, 1960-1995 (Oxford: Oxford
University Press, 1999).
[32] L. Trzcinski
and F. Upham, Creating
law from the ground up: Land law in post-conflict Cambodia, 1 Asian Journal of Law and Society (2014), 55.
[33] See <http://www.un.org/sustainabledevelopment/sustainable-development-goals/>,
accessed April 20,2019.
[35] E.g, in
Singapore: A. Harding, Multi-level, recursive
law and development: Singapore’s legal role in ASEAN 5:2 Asian Journal of
Law and Society (2018), 251.
[36] R. Peerenboom
and T. Ginsburg (eds), Law and Development of Middle-Income Countries: Avoiding
the Middle-Income Trap (Cambridge: Cambridge University Press, 2014).
[37] M. Woo-Cummings (ed), The Developmental State (New
York: Cornell University Press, 1999); World Bank, The East Asian Miracle: Economic Growth and Public Policy: Main Report
(New York: Oxford University Press, 1993).
[38] See, e.g., Yeh
Jiunn-rong, The Constitution of Taiwan: A Contextual Analysis (Oxford: Hart
Publishing, 2016).
[40] <https://www.un.org/sustainabledevelopment/sustainable-development-goals/>,
accessed April 20, 2019.
[43] <https://worldjusticeproject.org/our-work/research-and-data/wjp-rule-law-index-2019>,
accessed April 20, 2019.
[46] A. Chen, The achievement of constitutionalism
in Asia: Moving beyond ‘constitutions without constitutionalism, in A. Chen
(ed), Constitutionalism in Asia in the Early Twenty-First Century (Cambridge:
Cambridge University Press, 2014).
[47] K.L. Scheppelle, Constitutional
ethnography: An introduction, 38:3 Law and Society Review (2004), 389, 391.
[48] T. Ginsburg, Constitutional
knowledge 2:1 KNOW: A Journal on the Formation of Knowledge (2018), 15.
[49] B.L. Berger, White
fire: Structural indeterminacy, constitutional design, and the constitution
behind the text, 3:1 Journal of Comparative Law (2008), 249.
[50] S. McCarthy and Kheang Un, The
rule of law in illiberal contexts: Cambodia and Singapore as exemplars, in
M. Buente and B. Dressel (eds), Politics and Constitutions in Southeast Asia
(Abingdon: Routledge, 2017).
[52] T. Ginsburg, Japanese law and
Asian development, in G.P. McAlinn and C. Pejovic (eds), Law and
Development in Asia (New York: Routledge, 2012).
[53] J. Gillespie and P. Nicholson (eds), Asian Socialism and Legal
Change: The Dynamics of Vietnamese and Chinese Reform (Canberra: Asia-Pacific
Press, 2005).
[55] J. Chan, Hong Kong’s
constitutional journey, 1997-2011, in A. Chen (ed), Constitutionalism in
Asia in the Early Twenty-First Century (Cambridge: Cambridge University Press,
2014).
[56] A. Chen, The achievement of
constitutionalism in Asia: Moving beyond ‘constitutions without
constitutionalism, in A. Chen (ed), Constitutionalism in Asia in the Early
Twenty-First Century (Cambridge: Cambridge University Press, 2014).
[57] R. Pangalangan, Philippine
constitutional law: majoritarian courts and elite politics, in A. Chen
(ed), Constitutionalism in Asia in the Early Twenty-First Century (Cambridge:
Cambridge University Press, 2014).
[58] D. Horowitz, Constitutional Change and Democracy in Indonesia
(Cambridge: Cambridge University Press, 2013).
[59] R. Egreteau, Embedding
praetorianism: Soldiers, state, and constitutions in postcolonial Myanmar,
in M. Buente and B. Dressel (eds), Politics and Constitutions in Southeast Asia
(Abingdon: Routledge, 2017).
[60] Thio Li-ann, ‘We are feeling
our way forward, step by step’: The continuing Singapore experiment in the
construction of communitarian constitutionalism in the twenty-first century’s
first decade, in A. Chen (ed), Constitutionalism in Asia in the Early
Twenty-First Century (Cambridge: Cambridge University Press, 2014).
[61] J. Chin, Malaysian government’s reform agenda distracted by
political Islam (2019), <https://www.academia.edu/38576827/Malaysian_governments_reform_agenda_distracted_by_political_Islam>,
accessed April 21, 2019.
[62]
A. Harding and Rawin Leelapatana, Constitution-Making in the 21st Century Thailand: The Continuing Search for Perfect Paper, Chinese
Journal of Comparative Law (forthcoming, 2019).
[64] See, further, A. Harding, Law
and development in its Burmese moment: Legal reform in an emerging democracy,
in M. Crouch and T. Lindsey (eds), Law, Society and Transition in Myanmar
(Oxford: Hart Publishing, 2014).
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