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 21^st 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 21^st 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 21^st 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 19^th 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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J.A. Gardner, Legal Imperialism: American Lawyers and Legal Aid in Latin America (Madison: University of Wisconsin Press, 1980)

J. Gillespie and P. Nicholson (eds), Asian Socialism and Legal Change: The Dynamics of Vietnamese and Chinese Reform (Canberra: Asia-Pacific Press, 2005)

T. Ginsburg, Does the rule of law matter for economic development? Evidence from East Asia, 34 Law and Society Review (2000), 829

T. Ginsburg, Japanese law and Asian development, in G.P. McAlinn and C. Pejovic (eds), Law and Development in Asia (New York: Routledge, 2012)

T. Ginsburg, Constitutional knowledge 2:1 KNOW: A Journal on the Formation of Knowledge (2018), 15

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)

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)

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)

A. Harding, Multi-level, recursive law and development: Singapore’s legal role in ASEAN 5:2 Asian Journal of Law and Society (2018), 251

A. Harding and Rawin Leelapatana, Constitution-Making in the 21^st Century Thailand: The Continuing Search for Perfect Paper, Chinese Journal of Comparative Law (forthcoming, 2019)

D. Horowitz, Constitutional Change and Democracy in Indonesia (Cambridge: Cambridge University Press, 2013)

S. Humphreys, Theatre of the Rule of Law: Transnational Legal Intervention in Theory and Practice, (Cambridge: Cambridge University Press, 2010)

J. Kroncke, Law and development as anti-comparative law, 45 Vanderbilt Journal of Transnational Law (2012), 477

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)

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)

L. Nader, Promise or plunder? A past and future look at law and development 2:7 Global Jurist, Article 1 (2007)

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)

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).

R. Peerenboom, Varieties of rule of law, in R. Peerenboom (ed), Asian Discourses of Rule of Law (London: Routledge, 2003)

R. Peerenboom and T. Ginsburg (eds), Law and Development of Middle-Income Countries: Avoiding the Middle-Income Trap (Cambridge: Cambridge University Press, 2014)

K. Pistor and P. Wellons, The Role of Law and Legal Institutions in Asian Economic Development, 1960-1995 (Oxford: Oxford University Press, 1999)

K. Rittich, The future of law and development: Second generation reforms and the incorporation of the social, in

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

G. Schaffer, T. Ginsburg and T. Halliday (ed), Constitution-making and Transnational Legal Order (Cambridge: Cambridge University Press, 2019)

K.L. Scheppelle, Constitutional ethnography: An introduction, 38:3 Law and Society Review (2004), 389

S.A. de Smith, Constitutional and Administrative Law (London: Penguin Books, 1984)

T. Stanton, Law and economic development: The cautionary tale of Burma, 1:1 Asian Journal of Law and Society (2014), 165

B. Tamanaha, The lessons of law and development studies, 89 American Journal of International Law (1995), 470

V. Taylor, P. Bergling, and J. Ederlof (eds), Rule of Law Promotion: Global Perspectives, Local Applications (Uppsala: Iustus Forlag, 2010)

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)

A. Thiruvengadam, The Constitution of India: A Contextual Analysis (Oxford: Hart/ Bloomsbury, 2017)

E.P. Thompson, Whigs and Hunters: The Origins of the Black Act (New York: Pantheon, 1975)

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

D. Trubek, Law and development, Encyclopedia of Social and Behavioural Sciences (Oxford: Elsevier Science, 2001), 8442

D. Trubek and A. Santos (eds), The New Law and Economic Development: A Critical Appraisal (Cambridge: Cambridge University Press, 2006)

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

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)

Yeh Jiunn-rong, The Constitution of Taiwan: A Contextual Analysis (Oxford: Hart Publishing, 2016)

Cases:

Government of the Republic of South Africa v Grootboom SA 46 (CC), 2000

Education 4^th Budget Case, Case Number 013/ PUU-VI/ 2008, in the Constitutional Court of Indonesia

Websites:

Al-Jazeera, <https://www.aljazeera.com/indepth/features/2013/04/2013441131475898.html>, accessed April 20, 2019

Hong Kong University, <http://www.law.hku.hk/hrportal/socio-economic-rights>, accessed April 20, 2019

Melbourne Law School, <https://law.unimelb.edu.au/constitutional-transformations/research/international-and-domestic-interfaces#research>, accessed April 20, 2019

Office of the High Commissioner on Human Rights, <https://nhri.ohchr.org/EN/AboutUs/Pages/ParisPrinciples.aspx>, accessed April 20, 2019

UNICEF, <https://www.unicef.org/sowc96/1960s.htm>, accessed April 20, 2019

United Nations, <http://www.un.org/sustainabledevelopment/sustainable-development-goals/>, accessed April 20,2019

United Nations, <http://www.un.org/millenniumgoals/>, accessed April 20, 2019

World Justice Project, <https://worldjusticeproject.org/our-work/research-and-data/wjp-rule-law-index-2019>, accessed April 20, 2019

---

[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.

[6] See, famously, Government of the Republic of South Africa v Grootboom SA 46 (CC), 2000.

[7] See Education 4^th 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).

[16] Supra, note 6.

[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).

[19] Humphreys, supra, note 18.

[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.

[22] Newton, supra, note 21.

[23] Krygier, supra, note 11.

[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).

[26] See <https://www.unicef.org/sowc96/1960s.htm>, accessed April 20, 2019.

[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.

[28]  See, further, Newton, supra, note 21.

[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.

[34] Newton, supra, note 22; Trubek and Santos, supra, note 32, ch.1.

[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).

[39] <http://www.un.org/millenniumgoals/>, accessed April 20, 2019.

[40] <https://www.un.org/sustainabledevelopment/sustainable-development-goals/>, accessed April 20, 2019.

[41] Harding, supra, note 36.

[42] <https://nhri.ohchr.org/EN/AboutUs/Pages/ParisPrinciples.aspx>, accessed April 20, 2019.

[43] <https://worldjusticeproject.org/our-work/research-and-data/wjp-rule-law-index-2019>, accessed April 20, 2019.

[44] Peerenboom, supra, note 16.

[45] S.A. de Smith, Constitutional and Administrative Law (London: Penguin Books, 1984), 4.

[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).

[51] See supra, note 38.

[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).

[54] Ibid.

[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 21^st Century Thailand: The Continuing Search for Perfect Paper, Chinese Journal of Comparative Law (forthcoming, 2019).

[63] Tamanaha, supra, note 22.

[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).