Pushing for Transformation
Comment on the VRÜ anniversary conference panel on “Transformative Constitutionalism”
Transformative constitutionalism is a somewhat fuzzy notion. Reflecting about its exact meaning, one wonders what it actually is that distinguishes transformative constitutions of other types of constitutions. On the surface, the qualification as transformative signifies that a constitution contains norms that describe a particular aim or status to be reached. In the German context, one might for example think of Article 3 (2) of the Grundgesetz requiring the state to further the equality between genders and to combat existing discrimination. Can the German Grundgesetz therefore be qualified as a transformative constitution? I don’t think so. Of course, many constitutions entail some elements aiming at transforming concrete social relations in a society and of course, one may often retrospectively identify transformative effects of constitutional jurisprudence. However, when we speak about transformative constitutionalism in the context of the Global South, we usually mean something else.
Transformation as combatting socio-economic injustice and exclusion
Transformative constitutionalism is frequently used to describe a constitutional setting in which a new constitutional document explicitly and programmatically envisages the elimination of extreme socio-economic inequality, structural injustice and the exclusion of particular social groups. Such constitutions often mark a new beginning after an authoritarian past. The difference to constitutions that merely entail some concrete and confined aims of transformation, or to a situation where one may retrospectively say that a constitution helped to successfully build a new society after an authoritarian past, is threefold: (1) transformative constitutions explicitly and programmatically aim at transformation; (2) they do so with regard to a broad set of social relations, in particular focusing on socio-economic inequality and exclusion and (3) they provide for an active role of the state in achieving these goals.
While it is clear that transformative justice requires an active role of the state and cannot only rely on the initiative of private actors, it is far less clear which institution should be in charge of managing and instructing the transformation. Very often, transformative constitutionalism talk alludes to courts, in particular apex courts, as the central actors of transformation. This implicit nexus between transformative constitutionalism and strong and creative courts may also explain why transformative constitutionalism is often viewed with suspicion from a separation of powers perspective. If it is for the courts to bear the responsibility of realizing the transformation, then it is likely that courts will all too often interfere with the legislator’s will, thereby jeopardizing representative democratic will-formation. Moreover, transformative judgements all too often do not end up in transformative constitutional practice.
Separation of powers and functional integrity
If we, however, turn away from the courts as the crucial transformers and understand transformative constitutionalism as an endeavor of public authorities by and large, we may come to a different assessment. Ideally speaking, for transformative constitutionalism to be successfully implemented in constitutional practice and not only in constitutional jurisprudence, all three branches of power as well as civil society agents need to be able to cooperate. This leads to the question: How can we at least come close to such a cooperative constitutional arrangement?
My suggestion is that if we want to take the notion of transformative justice seriously, we need to shift our focus from a traditional understanding of checks-and-balances to new forms of inter-institutional relations. As any meaningful understanding of separation of powers, inter-institutional relations under a transformative constitution should start by identifying from a theoretical perspective the specific legitimacy of legislative, executive and judicial action. In very sketchy terms, one may distinguish the three branches as follows: Legislative action is characterized as the mode of decision-making which provides for the maximum of inclusion and representation and therefore allows for collective will-formation. Executive action is supposed to apply and concretize the laws resulting from the legislative process. The judiciary is supposed to decide concrete conflicts about the application and interpretation of the laws. In addition, constitutional jurisprudence may provide a forum for contestation and reflexivity in cases of severe human rights violations, structural injustices and exclusion that may jeopardize the inclusivity of the democratic process.
One of the core elements of separation of powers is that the functional integrity of each branch is respected by the other institutions, so that none of them is bereft of their particular legitimacy and can continue to fulfil its constitutional function. However, if transformative constitutionalism requires an active state, it might not be sufficient for a constitutional arrangement to assign a legitimate function to each branch and make sure that they do not encroach upon each other’s functional integrity.
Pushes and incentives instead of checks and balances
I think that if we take the notion of transformative constitutionalism seriously, we need to start thinking about inter-institutional arrangements that in addition to the two features just described also allow for mutual pushes and incentives between the branches and the concrete actors representing them. Instead of focusing on the traditional model of checks and balances, we should think about mechanisms through which one institution may push another institution to fulfill its legitimate function more in line with the transformative program of the constitution.
Of course, this may imply some adaptions of the classical separation of powers-doctrine for the context of transformative constitutions. A model of pushes-and-incentives may imply that the legislator is not always entirely free to omit legislation on a particular issue. It also requires a constitutional or apex court to give the legislator particular discretion when aiming at the realization of transformative goals. Moreover, it requires courts and other institutions to develop procedural and doctrinal tools of getting into a serious dialogue. Finally, it requires easy access to political or judicial forms of contestation precisely for those groups whose exclusion is to be combatted by the transformative character of the constitution.
None of these requirements seems to me as being at odds with the respect of functional integrity of the respective branches of government. However, the call for pushes-and-incentives forces us to think about new arrangements and forms of communication between the branches. In this respect, we should also bear in mind that the concrete realizations of separation of powers are not independent of the societal context in which they are developed. At the very least, the notion of transformative constitutionalism should remind us that one of the pervasive obstacles for remedying existing structural socio-economic injustices and exclusions is institutionalized inertia together with the political exclusion that all too often follows from socio-economic exclusion.
Anuscheh Farahat is director of the Emmy-Noether-Research Group (DFG) “Transnational Solidarity Conflicts” at Goethe-University Frankfurt a.M. and Senior Research Affiliate at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg.
This post is part of the VRÜ anniversary conference symposium “The Global South in Comparative Constitutional Law”, which can be accessed here.
Cite as: Anuscheh Farahat, “Pushing for Transformation”, Völkerrechtsblog, 20 July 2017, doi: 10.17176/20170727-142555