Constitutional judges as agents for development
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 suggest a range of coping mechanisms that can mitigate risks to judicial legitimacy. In terms of institutional design, the decentralized model of review facilitates access to constitutional justice for affected individuals and communities in remote and rural areas, making this the preferred option in large developing countries. 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 and anticipate the likely economic consequences of particular judicial findings, possibly with a view to tailoring their remedies accordingly.