Influential Constitutional Justice: its influence on society

and on developing a global human rights jurisprudence

 

World Conference on Constitutional Justice

Cape Town, 23 – 24 January 2009

 

organised by

the Constitutional Court of South Africa

and

the Venice Commission

 

The Constitutional Court of South Africa and the Venice Commission organise in the first World Conference on Constitutional Justice to be held in Cape Town, South Africa from 23 to 24 January 2009. The topic of the Conference will be “Influential Constitutional Justice - its influence on society and on developing a global jurisprudence on human rights”.

 

The World Conference on Constitutional Justice will bring together for the first time courts of constitutional jurisdiction from all over the world, including the members of the various regional groups of courts of constitutional jurisdiction (Arab, Asian, Commonwealth, European, French Speaking, Ibero-American, Southern African, Young Democracies/CIS).

 

The Conference will explore the impact which these courts have on their own societies as well as the impact of their case-law on the development of a global jurisprudence on human rights.

 

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Constitutional Justice has become a world-wide success.  More and more countries have introduced some form of constitutional review, either through specialised constitutional courts or councils or by attributing powers of constitutional review to supreme courts or specialised chambers within them.

 

As early as the 19^th century, the example of Marbury vs. Madison was followed in Colombia, Monaco and Norway. Between the wars, specialised constitutional courts according to Kelsen’s ideas were established in Czechoslovakia, Austria and Liechtenstein. After the Second World War, the movement to constitutional review was furthered by the establishment of specialised constitutional courts, such as in Germany and Italy. The end of the cold war has led to the so-called third wave of constitutional review. The South African Constitutional Court was established in 1995 and played a crucial role in the finalisation of the country’s first post-apartheid, democratic Constitution; and in the same decade, constitutional courts were established in many countries in Central and Eastern Europe. The development continues into the 21^st century, as countries in Africa and Asia are establishing, or considering establishing, such courts or extending the jurisdiction of existing courts to include constitutional review. Even countries where the constitution has expressly excluded constitutional review, such as the Netherlands are contemplating the introduction of constitutional review.

 

What are the reasons for the demand for constitutional justice? Are constitutional courts established just because it is modern and fashionable to do so? Or is there a genuine desire to ensure that the executive and legislative act consistently with the Constitution and respect human rights norms?

 

The World Conference on Constitutional Justice will explore these questions and will examine how courts engaged in constitutional review shape law and possibly society. Constitutional justice appears to have exceeded the role of ‘negative legislator’ as imagined by Kelsen. Courts, while respecting the democratic arms of government, provide answers to the question of how society should develop to give effect to its constitution and basic human rights principles.

 

Constitutional judges not only influence their own societies but also inspire the development of a global human rights’ jurisprudence. Of course, each constitution is different and based on each country’s history and needs but the constitutions do concur in the principles of democracy, the protection of human rights and the rule of law. Legal arguments based on these principles travel from country to country. More and more, courts cite judgments from other jurisdictions, sometimes as a mere reference, sometimes as persuasive authority as in the case of the abolition of the death penalty by the Constitutional Court of Hungary and South Africa, which influenced similar decisions in Albania, Lithuania and Ukraine. The Constitution of South Africa even expressly mandates courts to consider international and foreign law. The World Conference will look into this mutual inspiration, often called ‘cross-fertilisation’.

 

Progress towards the development of a global human rights’ jurisprudence is also facilitated by the creation of regional or linguistic groups of constitutional courts. In 1972, the Conference of European Constitutional Courts was established. Since 1995, the Ibero-American Conference of Constitutional Justice unites constitutional courts in Latin America and the Iberian Peninsula. In 1997, three such bodies were established: the constitutional courts and councils using the French language assembled to unite as the ACCPUF, the Conference of Constitutional Courts of Countries of Young Democracy gathered first the first time and the Union of Arab Constitutional Courts and Councils was created. Since 1998, Chief Justices in Southern Africa have met regularly under the auspices of the Southern African Judges Commission. Since 2002, a number of Asian courts meet at the Conferences of Asian Constitutional Court Judges and now intend to create a permanent association.

 

Constitutional justice has thus become a world-wide phenomenon. The World Conference on Constitutional Justice will bring together the courts of all these regional bodies as well as Commonwealth courts to foster an exchange within and between these regions on a global scale. The Constitutional Court of South Africa and the Venice Commission hope that the Conference will promote co-operation between courts engaged in constitutional review and further the development of global human rights principles to the benefit of the people of the world.

 

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Interpretation will be available in the Arab, English, French, Russian and Spanish languages.

 

Contact: e-mail schnutz.durr@coe.int, ermioni.kefallonitou@coe.int , +33 3 9021 4217).