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Constitutional Judges as Agents for Development

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  • De Visser Maartje

    (Singapore Management University School of Law, Singapore, Singapore)

Abstract

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.

Suggested Citation

  • De Visser Maartje, 2019. "Constitutional Judges as Agents for Development," The Law and Development Review, De Gruyter, vol. 12(3), pages 691-722, October.
    • Handle: RePEc:bpj:lawdev:v:12:y:2019:i:3:p:691-722:n:4
    DOI: 10.1515/ldr-2019-0042
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    References listed on IDEAS

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    1. Rex Deighton-Smith & Angelo Erbacci & Céline Kauffmann, 2016. "Promoting inclusive growth through better regulation: The role of regulatory impact assessment," OECD Regulatory Policy Working Papers 3, OECD Publishing.
    2. Tom Ginsburg & Mila Versteeg, 2014. "Why Do Countries Adopt Constitutional Review?," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 30(3), pages 587-622.
    3. Farber, Daniel A, 2002. "Rights as Signals," The Journal of Legal Studies, University of Chicago Press, vol. 31(1), pages 83-98, January.
    4. Hal Hill (ed.), 2002. "The Economic Development of Southeast Asia," Books, Edward Elgar Publishing, volume 0, number 1519.
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    Cited by:

    1. Bui Ngoc Son, 2019. "Economic Constitutions in the Developing World," The Law and Development Review, De Gruyter, vol. 12(3), pages 669-690, October.

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