Exploring the purposes and measures of new constitutionalism

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Since World War II, due to the tremendous and unprecedented population overload and the intention to reduce the future wars, globalization has been introduced by the world's leading politicians in the name of increasing prosperity and interdependence. Globalization describes a process by which regional economies, societies, and cultures have become integrated through a global network of communication, transportation, and trade (Bhagwati 2004: 14). The term is sometimes used to refer specifically to economic globalization: the integration of national economies into the international economy through trade, foreign direct investment, capital flows, migration, and the spread of technology (Bhagwati 2004: 15). Over the last twenty years, globalization has become an ideology largely consistent with the world view and political priorities of large-scale, internationally-mobile forms of capital (Gill 1995: 409). However, as opposed to the idealised free competition in neoclassical theory, the characteristic of the current phase of economic globalisation has become oligopolistic neo-liberalism: oligopoly and protection for the strong and a socialisation of their risks, market discipline for the week (Gill 1995: 415). In the context of globalization, new constitutionalism-the internal and external mechanisms of governance which effectively steers development strategies in a market-oriented (more liberalized) direction, towards a world in which market power and market forces take on a dominant role in society -has been advocated by the powerful authorities and transnational capital holders. We will discuss further the purposes and measures of new constitutionalism and disciplinary neo-liberalism, and the related consequences of this new development paradigm in part two, as well as the related anti-new constitutionalism movements in part three.

The purpose of new constitutionalism is to redefine the market in a more privatised and commodity way, attempting to enhance the interest of transnational corporations by regulating economic policy and fully protecting private property rights, such as intellectual property rights. New constitutionalism proposals imply or mandate the insulation of key aspects of the economy from the influence of politicians or the mass of citizens by imposing, internally and externally, "binding constraints" on the conduct of fiscal, monetary, trade, and investment policies (Gill 1992: 179). For example, when designing their fiscal and monetary policies to finance economic activities, governments normally employ certain measures, such as taxation, issuance of licences or putting public assets on sale. However, being contrary to the macroeconomic perspective fiscal and monetary policies with the goal of full employment, price stability, and economic growth, neo-liberalists have focused on heavily on reducing budget deficits, on tax reform favouring the business and capital sectors, and on measures to reduce inflation to maintain the investor and consumer confidence and attract more foreign direct investments, while other social priorities such as job creation or social infrastructure enhancement are given less significance (Gill and Bakker 2006: 40). Furthermore, the ramification of neo-liberal fiscal and monetary policies-trade liberalization was designed to eliminate the barriers for the invasion of transnational companies to developing countries by dismantling government regulations, such as tariffs. As new constitutionalism effectively limit popular or democratic influence in the political economy, inevitable contradictions and resistances from below occurred during the process of this political and economic reform. Apparently, only "soft" or "indirect" measures are not enough to ensure the privileged stratum of holders of large property, "hard" or "direct" power is still needed. Disciplinary neo-liberalism, an approach to achieve new constitutionalism through political and legal mechanisms to maintain the owners of capital are protected from expropriation and encroachment, are bureaucratised and institutionalised, and it is operated with different degrees of intensity across a range of "public" and "private" sphere (Gill 1995: 405).

With employing three sets of interrelated economic, juridical and political measures, new constitutionalism and neo-liberal discipline consolidated its dominant role in the 21st century. These measures are: measures to reconfigure governments and constitutional forms in order to make them operate in the context of greater market discipline, and to allow entry and exit options for mobile capital (Gill and Bakker 2006: 47). Under this measure, international treaties possess significant weight. The North American Free Trade Agreement or NAFTA can serve a good example here, which is an agreement signed by the governments of Canada, Mexico, and the United States to eliminate barriers to trade and investment between the USA, Canada and Mexico. Within 10 years of the implementation of the agreement, all US-Mexico tariffs would be eliminated except for some US agricultural exports to Mexico that were to be phased out in 15 years. Most US-Canada trade was already duty free (Wise 2009: 139) However, this treaty can be terminated unilaterally by the United States (Watson 1996: 26). In 2000, U.S government subsidies to the corn sector totalled $10.1 billion to make the export price more competitive, which is the force responsible for depressing the incomes of poor corn farmers in Mexico (Fiess and Lederman 2004: 2). Since NAFTA's ratification, more than 10,000 Canadian companies had been taken over by foreigners, and that 98% of all foreign direct investments in Canada were for foreign takeovers (Hurting 2003: 59). Problem arose even within the USA. Greater automation and higher productivity engendered tremendous domestic manufacturing output and a proportionally greater domestic investment in manufacturing. However, all the benefits went to the business tycoons, other than average manufacturing workers. Although the U.S. total civilian employment may have grown by almost 15 million in between 1993 and 2001, manufacturing jobs only increased by 476,000 in the same time period (USBLS 2005: 16). Furthermore, from 1994 to 2007, net manufacturing employment has declined by 3,654,000, and during this period several other free trade agreements have been concluded or expanded (USBLS 2007: 3).

A second set of new constitutionalism measures is to construct and extend liberal capitalist markets, which extends the potential scale and scope of the commodification of land, labour, and money by primitive accumulation and expansion of the frontiers of private property rights(Gill and Bakker 2006: 42). Primitive accumulation entails the peasants and indigenous communities' dispossession of their rights to land and basic resources necessary for the public health, particularly when the water supply system became privatised. For instance, a survey conducted by Mthetho Xali dealing with all issues related to cost recovery policies such as water, electricity, and waste removal cut-offs within Makhaza section, Khayelitsha, which located some 30km from the central business district of Cape Town, Khayelitsha as a residential area for "Africans" under the apartheid segregation policy (Xali 2002: 106). Of the sixty- three members of the community participated in the survey, 43 were women and 20 were man, within whom only 3 were employed (Xali 2002: 104). When being asked the duration of water cut-offs, of the 63 respondents, 22 were cut off for a week; 13 were cut off for more than a week; nine were nut off for a month, and 19 were cut off more than a month. Under the cost recovery policy, the council promotes water meter reading to working-class families to help them manage the amount of water they use, and give a specific price for the specific amount of water that is consumed by a particular household (Xali 2002: 110). However, "District/Zone meters also assist with the leakage investigation in these areas." (Xali 2002: 108). And "the council has not even fixed the leaking taps" (Xali 2002: 109). With the installation of water meters, the commodification of water is taken to a higher level. Those who do not have enough money to pay for water, particularly the working-class communities, are advised by the City of Cape Town to use less water (Xali 2002: 112).

A third set of measures is to attempt to deal with dislocations and contradictions, --for example, the growing frequency and depth of financial and economic crisis, widespread impoverishment of populations, unsustainable ecological damage, and the generalized social crisis (Gill and Bakker 2006: 42). Dominant neo-liberalists seek to constrain popular or democratic resistance by entailing compensatory measures and co-option political opposition. A good example would be Social Safety Nets, "non-contributory transfer programs seeking to prevent the poor or those vulnerable to shocks and poverty from falling below a certain poverty level" (Paitoonpong and Shigeyuki 2008: 468). On average, spending on safety nets accounts for 1 to 2 percent of GDP across developing and transition countries (Grosh and Tesliuc 2008: 19). Although an increasing number of safety net programs are effectively implemented, "government assistance has been criticised as the government depriving a person of an incentive to work" (Paitoonpong and Shigeyuki 2008: 471).

Part3. Burgeoning Anti-New Constitutionalism Movements

In the article of "New Constitutionalism and the Social Reproduction of Caring Institutions", Stephen Gill and Isabella Bakker stated that "mainstream neo-liberal development thinking and practices has failed to deliver economic and social development, or human security, for the majority of people in the world. We further argue that neo-liberalism is linked to social and political forces that tend to increase the human insecurity of the vast majority of the world's population, whilst redistributing income in an increasingly unequal world from the poor to the rich, in ways that tend to intensify a worldwide crisis of social and caring institutions" (2006: 45). From my own perspective, I agree with Gill's statement based on not only the investigation on the background, the concept, the purpose and the measures of new constitutionalism depicted above, but also, in reality, the increasingly number of crises, events and resistant movements arising in a world scale, which is premised on the fact that new constitutionalism and disciplinary neo-liberalism contribute to enormous benefits to the rich by cruel repression or even fierce measures to the oppositions. For example, the Landless People's Movement (LPM), an independent social movement made up of the poor and landless in South Africa(Shilliam and Bhambra 2009: 49), claims to have been subject to severe repression in Johannesburg in 2010 and 2009, including arrest, arson and murder (Suarez 2004: 1). In April 2004, 57 members of the movement were arrested on election day for marching under the banner of 'No Land! No Vote!' [1] 2Some of the arrested activists were subject to torture (Suarez 2004: 1). Another indicator of both resistance and potential political change is the emergence of the World Social Forum (Gill and Bakker 2006: 52), which stimulates the decentralized debate, reflection, proposals building, experiences exchange and alliances among movements and organizations engaged in concrete actions towards a more, democratic and fair world....a permanent space and process to build alternatives to neoliberalism. [3] 

Part4. Conclusion

To conclude, in the circumstance of globalization on cultural, economic, political and judicial sphere, new constitutionalism was prevalent over the past twenty years. Driven by the higher communication and automation technology, new constitutionalism phased out the barriers to internationally capital mobility, expended the neo-liberalism frontiers in different jurisdictions, and promoted the privatization and commodification. However, with the high integration of world economy and capital dominated hegemony, the ecological problems, financial crises and social protests occurred constantly in the world. Moreover, given the emergence of anti-globalization movements and organizations are burgeoning over the world, we expect that there is a growing clash of globalization involving basic issues of political economy, human security and human rights, and ultimately the question of what it means to be civilized (Stephen 2005: 73).

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