Social movements have been a recurring phenomenon in several Asian countries wherein people unite together either to challenge institutional power or oppose political imposition.[1] This method has a massive impact and consequences for constitutionalism that is not merely symbolic but strike a huge blow to the way the State’s power is practised. These movements are an indictor to the power that ‘we the people’ possess. In order to effectively address the above-mentioned question, it is imperative to cement the understanding of ‘social movements’ and ‘constitutionalism’. I understand the meaning of social movements to be informal interactions between either individuals or groups sharing a common identity that have mobilised for a common goal i.e., to oppose political institutions and preserve democracy.[2] Furthermore, the thick normative understanding of constitutionalism which sees constitutionalism to mean regulation of State power is accepted for the purposes of this paper.[3]
The relationship between the legislature, the executive, and the judiciary is seen to be a top-bottom norm-enforcing institution. I believe it is high time, we begin considering bottom-top balancing mechanisms of legitimacy. I argue that social movements are imperative for constitutionalism and matter both structurally and functionally. Firstly, I evaluate how these social movements are structurally situated within a constitutional context. Secondly, I aim to examine the functions of these movements while simultaneously investigating their consequences. Thus, overall, I contend that social movements do matter for restricting State power by using case studies from India and Japan as they offer competing imageries. Social movements hence, are shaped and shape constitutionalism. I. STRUCTURAL SIGNIFICANCE: WITHIN THE ‘CONSTITUTIONAL FRAMEWORK’
Firstly, I argue that social movements act as an effective check of political State power. Social movements represent a bottom-top approach wherein people who are the ultimate benefactors of a constitutional polity discuss, decide and subsequently agitate against any authority or power.[4] I argue that social movements are in a way, the legitimate shifting of the check-balance mechanism that was handed to institutional actors. With the lack of unanimity coupled with logistical representational issues, several institutions such as the judiciary assumed responsibility for adjudicating the performance of both the parliament and the executive.[5] Social movements in a way transcend this concrete tri-patriate institutional setting and ensure that the common people who gave the constitution to themselves, look after its enforcement as well.
However, it can be counter-argued that there seems to be no difference between social movements and coups which are too argued to be a democratic usurpation of power by the people against an authoritarian regime.[6] In response to this, I contend that social movements unlike coups, are uniquely situated within the constitutional context and order. Social movements are discursive avenues for people to come together to mobilise against a common goal within the constitutional paradigm. In Japan, in the struggle movement to save ‘Article 9’, it was seen that the people positioned the entire movement within the constitutional order.[7] The legislative and governmental processes along with judicial interpretations provided the people a platform to register their concerns and dissent against the actions of the government in power.[8] The ‘movement actors’ used the language of the Constitution itself to push for the adoption of their alternative interpretation of the Constitution.[9] Additionally, they approached certain constitutional actors such as the legislators and judges in order to find legitimacy within their cause.[10] Hence, my construction of ‘social movements’ is one which is contextualised within the larger constitutional paradigm and affects constitutionalism by exerting their constituent power. Hence, I argue that social movements affect and contribute in shaping constitutionalism - by structurally being a part of that very system, they represent a shift from a top-bottom approach to the democratic envisaged ‘bottom-top’ approach. Moreover, their objective of mobilising is to regulate governmental authority either by convincing institutional subjects such as the judiciary and the legislature or demanding for constitutional activism.
Save Article 9 movement in Japan Credits - The Japan Times
On the other hand, it can be further counter-argued that social movements too arrange themselves in a top-bottom approach and hence, are not representative of a ‘bottom-top’ mechanism. In the Indian example, we can notice that several organisations and not-for-profit trusts assume responsibility similar to that of an institutional actor and hence, social movements are just a smaller unit wherein people have reorganised themselves hierarchically.[11] Thus, social movements seem to be façade as they are not representative of ‘we the people’. I acknowledge that social movements in few cases might run the risk of being captured either by political elites or social institutions such as non-governmental trusts. However, they do matter to constitutionalism since first, they are much more democratic in acting as a check-balance than other institutions such as the Courts; and second, the true power of change still remains with the people. The organisations and institutions merely assist either financially or logistically to arrange a social movement and are not imposing in a manner similar to any top-bottom actor.
Secondly, I contend that social movements matter for constitutionalism since they might not only shape but also be shaped by institutional actors. This argument truly captures the wide diversity present within Asian Constitutions. In countries like Japan, Taiwan and South Korea,[12] while it is possible to agitate within the four-folds of constitutionalism; socialist regimes like China and Vietnam function differently. The deep-rooted entrenchment of the government in power might design and, in a way, affect the construction of social movements.[13] While such pressures over movements might be external, some internal pressures might also exist. For instance, in Confucian constitutionalism, there lies an inherent spiritual ideology and adherence to the ‘people in power’ and such belief dictates that there must be no questioning of those who have authority.[14] Furthermore, some issues might be jurisdiction-specific. For instance, in certain countries, for movements to be present within the constitutional paradigm, they ought to form an alliance wherein people make some demands and oppose the authority by using some political leverage to avoid confrontation.[15] Such designing of social movements is seen specially, in authoritarian regimes to avoid criminal/political sanctions.
Hence, I argue that structurally speaking, social movements do matter since they are even shaped by the type and character of constitutionalism present in that very jurisdiction. In the following part, I seek to address the functional relationship between social movements and constitutionalism.
II. FUNCTIONAL IMPORTANCE: MOVING BEYOND THE REALM OF SYMBOLISM It is argued that social movements merely play an expressive function which is simply symbolic in nature. Commentators highlight that especially in Asian countries that are streaked with authoritarian regimes, social movements play an inherently ‘softer’ role in agitating for rights and cannot thus be effectively considered as an efficient check and balance mechanisms.[16] They simply might be playing an educative role - one that informs people about their rights and assists in creating awareness in a jurisdiction, but it would be a stretch to provide them with constitutional recognition i.e., wherein they possess the power to affect constitutionalism.[17] In response to this, I contend that social movements play an imperative role and have several functions in a democratic polity as highlighted below.
Firstly, it is naïve to assume that raising rights-consciousness is merely symbolic or educative. Several people-led protests in Thailand and South Korea have displayed the power to effectuate change when a large group of individuals with a shared identity come together to agitate against a common goal.[18] Educating people about their rights has been identified as the first step of constitutional resilience and can play a significant role in reminding the government that people are truly the creators and the source of the Constitution. Thus, an expressive social movement too can exercise an imperative function.
Secondly, in arguendo, even if we assume that such movements are expressive, such an argument misplaces the true strength of an expressive function in the first place. I argue that social movements are not just ‘softer’ versions of agitation but rather have the potential to reach people from different walks of life even at the grassroots level. For example, the social movement for land rights was able to encompass even the financially illiterate and socially disadvantaged Dalits from rural areas of Gujarat.[19] Thus, an expressive function of the social movement has so much ability to lead constitutional change and must not be ignored or discredited.
Caste Movements in Gujarat Credits - scroll.in
Thirdly, social movements assist in extending constitutional conversations. These movements assist in ensuring that not only stop-gap measures are provided but rather the entire bouquet of rights is provided in the most efficient manner.[20] Thus, social movements can be seen as an incremental tool for ensuring that the rights which are guaranteed in the Constitution are provided in the truest sense not only through the letter of the law but also through the spirit of the law.[21] For example, if land rights were merely seen through the lens of the ‘right to property’ the challenge would not have been as successful as extending the conversation and viewing them through the prism of ‘equality’. Hence, I argue that these movements matter to constitutionalism through an ‘incremental extension’ function which holds a lot of significance for the common people.
Fourthly, social movements attempt to amplify the shift towards constitutional change. These movements generate more support and enable a lot of people to participate.[22] These movements further attract the attention of political actors and courts.[23] They activate fundamental norms having an enduring constitutional value.[24] For several constitutions – there might not be politics involved but rather a shared commitment and through the movement, people remember the duties of the constitutional actors themselves to compel the leaders.[25] Hence, social movements affect constitutionalism through their ‘amplifying’ function.
Lastly, it is imperative to highlight the role of the social movements to ‘bargain in the shadow of the law’.[26] I contend that such a function truly captures the essence which the social movements try to achieve. These movements are not organised to disturb democratic constitutional orders but using the language of the law, want to push constitutional actors to realise the rights provided to them by reminding them of their duties. Using the constitutional language itself, these movements truly depict the perfect site for evaluating constitutional performance and effectiveness.
On the other hand, several scholars argue that only if these movements are ‘successful’, they can influence public opinion in their favour, change the culture with which constitutional law interacts, convince political parties to support their views, and ultimately influence judges with similar outlooks.[27]
In response to this, I argue that there lies something inherently successful about a social movement irrespective of the consequences. I posit that the success and failure of the social movement do not matter. What truly matters to constitutionalism is the coming together of people with a shared identity to ask for what truly belongs to them, democratically and legitimately. That in itself is an achievement that warrants recognition since I believe there is something extremely meaningful in the design of a social movement itself which threatens constitutional actors to exercise power. Hence, while social movements might play several functions, the success of those functions, while imperative, might not be the indicator of the effect it has on constitutionalism. Social movements thus even without reaching any consequence, affect constitutionalism. III. Conclusion
Through this piece, I have attempted to highlight the ways in which social movements matter both structurally and functionally for constitutionalism. In the first part, using the case study of Japan, I have examined that social movements depict a shift from a top-bottom approach to a bottom-top approach having constitutional significance in regulating State power. Furthermore, I examine how constitutionalism even shaped social movements in either authoritarian or socialist regimes. In the second part, using the example of India, I depict the several functions that social movements play in exercising constitutional regulation i.e., an impressive expressive function, an incremental extension function, and an amplifying role. However, my narrative of constitutionally recognising social movements irrespective of the success and failure of their impact, truly signals the immense role they have in affecting constitutionalism - threatening constitutional actors and restricting state power by agitating against constitutional regulation. Social movements truly reconstruct the relationships between the organs of the government and rightly give power back to the people.
Mr Anshul Dalmia (he/him) is currently reading for the Bachelor of Civil Law at the University of Oxford. He graduated from the WB National University of Juridical Sciences at the top of his cohort. He is primarily interested in Constitutional Law and its intersection with allied interdisciplinary fields.
Instagram - @anshuldalmia99
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Endnotes -
[1] NS Bui, ‘Social Movements and Constitutionalism in Japan, South Korea, and Taiwan,’ (2019) 14 Asian Journal of Comparative Law 551.
[2] Ibid.
[3] AHY Chen, “Constitutions and Constitutionalism: China” in David S Law (ed), Constitutionalism in Context (Cambridge University Press 2022) 61-86.
[4] Charles R Epp, The Rights Revolution: Lawyers, Activists, And Supreme Courts In Comparative Perspective (University of Chicago Press 1998).
[5] Reva B Siegel, ‘Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA’ (2006) 194 California Law Review 1323.
[6] Mario Diani, ‘The Concept of Social Movement’ (1992) 40 The Sociological Review I, 13.
[7] Daiki Shibuichi, ‘The Article 9 Association, Leftist Elites, and the Movement to Save Article 9 of Japan’s Postwar Constitution’ (2017) 34 East Asia 147.
[8] Kihiro Ogawa, ‘Peace, a Contested Identity: Japan’s Constitutional Revision and Grassroots Peace Movement’ (2011) 36 Peace and Change 373.
[9] Millie Creighton, ‘Civil society Volunteers Supporting Japan’s Constitution, Article 9 and Associated Peace, Diversity, And Post-3.11 Environmental Issues’ (2015) 26 International Journal of Voluntary and Non-profit Organizations 121.
[10] Ibid.
[11] F Siddiqui, ‘Rethinking Constitutional Resilience from Below: Dalit Rights and Land Reform’ in S Jhaveri et al (eds), Constitutional Resilience in South Asia (Hart 2023).
[12] Supra, see note 1.
[13] Albert H Chen, ‘Constitutions, Constitutional Practice and Constitutionalism in East Asia’ in Christoph Antons (ed), Routledge Handbook of Asian Law (Routledge 2017) 80.
[14] Tom Ginsburg, ‘Confucian Constitutionalism? Globalization and Judicial Review in Korea and Taiwan’ (2002) 27 Law and Social Inquiry 763.
[15] Jeffrey Broadbent and Vicky Brockman (eds), East Asian Social Movements: Power, Protest, And Change in A Dynamic Region (Springer 2011).
[16] Denis J Galligan and Mila Versteeg (eds), Social and Political Foundations of Constitutions (CUP 2015)
[17] Ibid.
[18] Supra, see note 1.
[19] Supra, see note 11.
[20] Supra, see note 15.
[21] Ibid.
[22] Supra, see note 9.
[23] See generally, Jack Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press 2011)
[24] William N Eskridge Jr, ‘Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century’ (2002) 100 Michigan Law Review 2062 – 2064.
[25] Ibid.
[26] Supra, see note 9.
[27] Douglas NeJaime, ‘Constitutional Change, Courts, and Social Movements’ (2013) 111 Michigan Law Review 885.
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