Band 12, Heft 3 - Special Issue (2019): Constitutionalism and Development, Guest Editor: Maartje De Visser

This article examines the conceptual and historical relationship between constitutionalism and development. It argues that the communities that represent these two ideas have had little engagement, and yet there is a good deal of overlap between their areas of concern. Given that the Sustainable Development Goals 2015 have strongly embraced good governance, accountability and the rule of law, and we have become adept at defining and articulating the rule of law, the time seems ripe for development to engage with constitutionalism, and for constitutionalism to use “developmental operativity”, as I call it, to advance its objectives in practice.

A constitution is not purely a legal document. Neither is it only a political manifesto. It is also an economic charter which expresses a country’s economic hopes and aspirations, and regulates economic activities of constitutional stakeholders. This paper adumbrates a framework to understand the economic constitutions in the developing world. It explores the direct concept of an economic constitution, which refers to a constitution deriving from an overarching economic rationale, created or reformed through a process operating as a platform for different sectors of the society to deliberate economic questions, and consequently addressing national economic identity, principles, rights, and structural institutions in its substantive contents. Economic constitutions have two main functions: expressive and regulative. The tentative explanatory factors that may account for similarities and differences in the economic constitutions in developing countries include: the pre-existing economic conditions, the institutional setting, the national ideology, and the impact of globalization. The findings of this study offer systematic implications for the study of developing countries actively pursuing constitutional and economic development.

This Article explores how constitutional judges can become agents for development and how they may wish to go about performing this role. Due to the high politico-economic stakes involved and the inevitability of trade-offs between competing interests, judicial review of developmental questions is liable to expose judges to negative fall-outs. At the same time, it is fairly common for Asian constitutions to expressly set out the parameters or objectives for economic development that the State is expected to realize, while simultaneously recognizing a suite of (socio-)economic rights, thereby providing textual ammunition to query the validity of a government’s chosen implementation in court. Against this reality, the Article suggests a range of coping mechanisms that can mitigate risks to judicial legitimacy. At its broadest, the decentralized model of judicial review offers judges opportunities to side-step controversial constitutional questions that are unavailable to the same extent, or at all, to distinct constitutional courts. When deciding on the merits of developmental claims, courts should combine a strong presumption of constitutionality as far as the substance of the law is concerned with robust scrutiny of compliance with procedural guarantees. Additionally, courts should be better equipped with knowledge about the methodologies used by and insights from other social sciences to enable them to better evaluate extra-legal evidence submitted. This will also make it possible to better anticipate the likely economic consequences of particular judicial findings, possibly with a view to tailoring their remedies accordingly.

Political stability is an important precondition for economic development. While political stability cannot be created by laws alone, an effective legal framework for political governance, such as a constitution, can facilitate political stability. Political stability is not synonymous with democracy; while civil liberty is often considered a key ingredient for prosperity, it has been historically observed that promotion of democracy, while an important value, does not necessarily lead to economic development. Successful economic developments in the East Asian countries, such as South Korea, Singapore, and Taiwan from the 60s to the 80s and in contemporary China show the importance of political stability in achieving economic progress albeit with certain democratic deficits. The system of political governance that creates political stability may differ from one place to another, depending upon political needs, cultural priorities, historical contexts, and popular aspirations. This paper considers these elements and also examines, based on local conditions and priorities, the kind of political leadership that has brought political stability and economic development, the question of democracy, and the legal frameworks conducive to sustaining political stability.

The relationship between the European Union (EU) and its member states has recently been the subject of several legal proceedings in the German Federal Constitutional Court (GFCC) and the European Court of Justice. The backdrop to the underlying controversies were policies instituted by the European Central Bank (ECB) dealing with the economic and monetary situation in various member states in the context of the sovereign debt crises to influence interest rates, combat deflationary tendencies and keep inflation under but close to the ECB’s 2% inflation target. Especially so-called outright monetary transactions (OMTs) and the corresponding OMT-program and a particular high volume public sector asset purchasing program (PSPP) announced by the ECB have been controversially discussed. Legally, the controversies are about the prohibition for the ECB to finance debt held by the EU or member states (Article 123 TFEU) and about the delineation of economic policy (Article 119 et seq . TFEU), which lies in the hands of the members states, and monetary policy (Article 127 et seq . TFEU), which is exclusively in the hands of the ECB. The GFCC in its decisions propagated a restrictive approach emphasizing the role of the member states and pointing to the doctrines developed by it around ultra vires acts and so-called identity review. This paper attempts to shed some light on this controversy and argues that beyond the legal controversy lies a deeper problem of the relationship between judicial and political decision-making that the GFCC should exercise restraint in exercising its functions and remember its own doctrine of “open constitutional norms” developed in a different context but applicable here as well.

Since the economic reforms of the 1990s, Indian states have largely contributed to India’s foreign policy decision-making in two critical areas, namely, economic diplomacy and influencing India’s foreign policy with its neighbours. Given India’s growing importance in the world arena, one would assume that Indian states will continue to have an increased role in its foreign policy decisions. However, the Indian Constitution was framed with the idea of a strong union government and the power to drive foreign policy initiatives continues to remain under the exclusive purview of the union government. There is no institutional framework that facilitates the involvement of the Indian states’ in foreign policy decision-making. States’ involvement is usually on an ad hoc basis and often pushed through by strong state level leaders or by the coalition compulsions. The article examines the Indian paradiplomacy experience to note that paradiplomacy has the potential to democratize foreign policy decision-making only if it is supported by a strong institutional framework. A fragmented practice of paradiplomacy to suit immediate political needs neither promotes democratization of foreign policy nor does it allows for a meaningful engagement of Indian states in the global governance debate.

Socio-economic rights are regarded as an indispensable foundation of substantial freedom. At the same time, the embodiment of socio-economic rights in the Constitution is generally associated with concerns about their quality as a fundamental right and their judicial enforcement. The South Korean Constitution upholds the principle of the welfare state in the preamble, the fundamental social rights of Articles 31 to 36 and Article 119 (2), providing the legal basis for the regulation and coordination of economic affairs by the State. The implementation of these constitutional norms and ideals was left largely to the political process beyond judicial review for many decades. As a result of the rapid economic development, the democratization process and the introduction of constitutional review in the last 30 years, the normative discussion of basic social rights, both on societal and legal level, has taken on a new life. This article examines the South Korean Constitutional Court’s approach to judicial review in the socio-economic field with due regard to this changing reality.

One of the innovations of the past 30 years has been the creation and subsequent use of the “right to information (RTI)” to deepen democracy, enhance citizen participation and generate transparent systems of governance. Transitional societies and existing democracies alike have embraced legal regimes on the right to information. An RTI law gives a person a right to demand information from a public body (and in some cases from private bodies as well) without having to disclose why the information is being sought. Such a right can enhance transparency in public administration, decrease the level of arbitrary decision-making, and facilitate citizen participation at local, regional and central government levels. It can also reduce corruption and prevent the abuse of public power. UN Sustainable Development Goal 16 commits States 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. More particularly, Target 16.10 aims to “ensure public access to information”. By examining the work of the Sri Lankan RTI Commission over the past 2 years, this Article assesses whether RTI regimes and RTI commissions can be transformative in their impact, including to help realize SDG Goal 16. Can they help generate transparent, participatory and less-corrupt development outcomes, foster a concept of active citizenship, provide genuine public scrutiny of government decision-making, and enable citizens to benefit from an inclusive development process?

South Korea is one of the most successful economic development cases in history. This country, stricken with crushing poverty and torn by a disastrous war two generations ago, rose from the ashes of the war and underwent unprecedented economic development for over three decades. By the mid-1990s, South Korea had built an advanced economy with world-class industries and also achieved a liberal democracy based on the rule of law. Since its 1997 financial crisis, however, Korea’s economic growth has been continually slowing down with widening income gaps among its populations. The Korean economy has also faced increasing external pressure, which has recently been dramatized by Japan’s export restraint measures on some of the key materials used to produce semiconductors, one of the most important export products for the Korean economy. This note discusses structural issues in the Korean economy, such as its over-dependency on a small number of conglomerates (“chaebols”) and the weakness of its SMEs, which cause the Korean economy to slow down and render the economy vulnerable to external pressure. This note examines these issues from a legal and institutional perspective and offers proposals to remedy some of the problems in the Korean economy.