Rule Of Law In Postcolonial Constitutionalism - A Comparative Study Between India, Brazil And South Africa
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RULE OF LAW IN POSTCOLONIAL
CONSTITUTIONALISM: A COMPARATIVE STUDY BETWEEN INDIA, BRAZIL AND SOUTH AFRICA Saumya Rai, LLB, LLM (NLU Delhi) Akash, LLB, LLM (RGNUL, Patiala)
ABSTRACT
The epoch of colonial expansion marked a horrific chapter in world history. It is paradoxical that the ideals of constitutionalism, rule of law and rights of citizens were perfected in Europe at the very same historical moment when colonialism burgeoned. While ‘citizens’ back home were being guaranteed protection from State excess, the Colonial State engaged in committing unbelievable atrocities on the ‘subjects’ in colonies. As profoundly enunciated by Baxi1, colonial legality is indeed an oxymoron, in spite of what may have been asserted by euro-centric narratives attempting justification of colonization. Colonial power only offered systems of governance, expressed in alien language and in terms of alien ideas, and nothing beyond, legally speaking.
If and where, any semblance of ‘justice’ and ‘development’ was induced by the colonial regime, it was either done with a patronizing intent or simply as an accessory to imperial stronghold. The very concept of colonialism was the anti-thesis of the ‘rule of law’ as was being promulgated in the West.
1 Upendra Baxi, Postcolonial Legality
A Postscript from India, 2012 Research Questions 1) What is the impact of colonial experience and the resultant temporal context immediately preceding the constitutional drafting on the constitutional philosophy of postcolonial republics in context of BISA countries? 2) What is the impact of geo-politics and international development of human rights law on constitutional articulation in BISA countries? 3) What is the scope of rule of law as envisaged in the constitutions of BISA countries?
4) What is the role of their apex courts within their respective political systems in
operationalizing the constitutionally aspired rule of law? Research Objectives 1) To analyze the constitutional philosophies of BISA constitutions in context of imperatives of the period immediately preceding constitutional formation. 2) To understand the influence of geo-political pressures on the promulgation of rule of law in BISA countries. 3) To identify elements enshrining the ideal of rule of law in BISA constitutions. 4) To appreciate the pivotal role of their respective apex courts in operationalizing rule of law. Hypothesis Apex courts play a pivotal role in fulfilling and furthering the monumental aspirations of rule of law in postcolonial constitutions of India, Brazil and South Africa.
INTRODUCTION
any real development of ideals of constitutionalism (simply understood as just and defined system of governance) only occurred after historical rupture from the colonial regime- part of the ‘post’-colonial order. The constitutional ideals developed by postcolonial republics could not germinate in vacuum and inevitably carry birthmarks of the memory of colonial oppression and collective resistance against it. While carrying forward colonial legacy in the form of organization of government and its institutions, at the same time they envisage a notable break from the associated oppressive governance. Inhering principles of rule of law within their constitutions, postcolonial societies have been especially conscious of the need to constrain State excess and simultaneously ushered in entrenched rights of citizens against it.
The constitutions of these postcolonial states are not merely normative documents defining systems of governance, rather were conceptualized with redemptive potential, meant to diagnose and therapize wounds from colonial atrocities. Aptly subsumed in the words of Justice Madala- “Some rights in the Constitution are the ideal and something to be strived for. They amount to a promise, in some cases, and an indication of what a democratic society aiming to salvage lost dignity, freedom and equality should embark upon. They are values which the Constitution seeks to provide, nurture and protect for the future South Africa. ”2 (emphasis added) Thus, postcolonial constitutionalism at once provides a consolidated framework of both rule (by the constitutionally defined State machinery) and resistance (against State excess).
It follows that the ideal of ‘rule of law’ as initiated by Dicey in the 19th Century cannot be applied at face value, it needs to be informed by a postcolonial perspective. The meaning of rule of law as adapted by this study follows Judith Shklar's distinction of Aristotlian rationality based and Montesquieu-derived rule of law which is a theory of limited government3, accepting the latter as the contextually appropriate understanding for postcolonial societies. This conceptual claim states that ‘rule of law’ means citizens do not suffer the insecurity of arbitrary government, the discriminations of injustice, and the fear of violence. “The rule of law is meant to put a fence around the innocent citizen so that she may feel secure in all legal activities. That implies that (violative conduct) public officials will be hampered by judicial agents...
Montesquieu’s (rule of law) has only one aim, to protect the ruled against aggression of those who rule. ”4 This conceptualization can be distilled into a trifecta of institutional dimension (horizontal constrains within State, in terms of separation of powers and role of judiciary), individual dimension (positive and negative rights of citizens
2 Soobramoney v Minister of Health (KwaZulu‐Natal) 1998 (1) SA 765 (CC) para 42.
3 Judith Shklar, Political Theory and the Rule of Law, in The Rule of Law
Ideal or Ideology, Allan Hutchinson & Patrick J. Monahan (eds.), pp. 1-16 (1987)
4 Id.
against State, enunciated as ‘bill of rights’ or ‘fundamental rights’ under the constitutions) and social dimension (in terms of violence and its opposition existing in a pluralistic society, at large). While in isolation these elements may not be sufficient in establishing complete rule of law, however their absence guarantees its impossibility. Furthermore, in postcolonial context, the conceptual understanding of constitutionalism has gone beyond the device of the written constitution, exploring the unwritten one underpinning it, drawing focus to operationalizing the ideals of rule of law forming its foundations.
This is best reflected in Baxi’s identification of multitudinous constitutionalism5 in terms of eight ‘C’s, including the basic ideas of constitution, constitutional law and simple constitutionalism (the normative theory or ideological core or even the ‘spirit’ of constitutions) along with its development garnered by other elements like non-official interpretation by professionals, role of dominant social stakeholders like corporate citizens, communities of resistance, activist jurists and state exceptionalism in terms of constituted power to suspend constitution. The interrelationship and interaction of these elements lay down constitutionalism in postcolonial society. It is essential to note that these rights and ideals of constitutionalism and rule of law will remain a mere policy statement if their operationalization is not given appropriate consideration.
Their implementation, in the form of efficient and outcome-oriented pursuit, is equally if not more significant. While non-state actors like the civil societies and resistance communities play a non-negotiable role, which may not confirm to constitutional legality at times but still furthers constitutionalism in its spirit, their role remains limited as compared to that contributed by the Apex Court (court with final say on constitutional matters) of any postcolonial jurisdiction. As guardians of the constitutions and thus harbourers of constitutionalism and rule of law in practice, the judiciary has a pivotal role to impart.
Therefore, the stature of Apex Courts in the post-colonial political system- in terms of the independence and autonomy conferred on and maintained by the judiciary, as well as its adjudicatory policy (in the purview of judicial activism versus judicial restraint)- ensures encouragement for social conversations leading to re-democratization of the polity. Selfimposed restraint by judiciary has to remain rational in accordance with the postcolonial
5 Upendra Baxi, ‘Preliminary Notes on Transformative Constitutionalism’, Chap. 1 in Transformative
constitutionalism: Comparing the Apex Courts of Brazil, India and South Africa (Pretoria University Law Press 2013), pp. 19-47 concept, since the criticism of usurpation of power by judicial review and intervention is informed by anti-majoritarian anxiety of the Northern prescriptive theories about judicial role. This role stands considerably evolved in postcolonial constitutionalism of multi-cultural societies, with their history of oppression by absolutist State, and their imperative of staying beware of majoritarian tendencies. Thus, this essay will focus on the initiation and evolution of the ideal of rule of law in postcolonial democracies, their constitutions and constitutionalism in light of the formidable role imparted by the judiciary, more specifically the apex courts of respective jurisdictions.
The postcolonial republics under comparative consideration are India6, Brazil7 and South Africa8 (the BISA bloc). While Brazil and South Africa underwent several periods of constitutional formation before 1988 and 1996 respectively, the essay will focus on these constitutions only as the final achievement of effective democracy in the post-colonial States, after their rescue from military and apartheid regimes of oppression which were, from a Rule of Law lens, a continuation of quasi-colonial State system. Despite stark differences in their colonial histories, specificities of anti-imperial struggles, constitutional formation and resulting legal cultures, the BISA countries find a common base in their constitutional emphasis on the establishment and maintenance of rule of law, having overcome oppressive regimes of the past through constitutional processes.
The three constitutions under consideration were formulated not in a revolutionary temporality of their anti-colonial struggle, but after the dust settled down. The context of the period immediately preceding the drafting of these constitutions was marked with fervour of negotiation and arrival of compromise between the plural interest groups. Thus, these distinguished anti imperial struggles culminated in a common conclusion in the form of bold constitutional documents articulated as a result of negotiations between competing interests of their respective pluralist society. These constitutions are endowed with aspirational and ambitious promises attempting to placate the deep-seated wounds of oppressive past, while establishing a system of democratic State machinery.
Apart from their colonial past, the BISA bloc in international politics represents three large, pluralistic, multi-cultural, multi-racial societies, from three different continents, as a purely
6 Constitution of Republic of India, 1950.
7 Constitution of the Federative Republic of Brazil, 1988.
8 Constitution of the Republic of South Africa, 1996.
South- South grouping of nation states. They share similar contemporary concerns relating to social fragmentation, inequality and discrimination, poverty and providing equal access to social services, which are again meant to be ameliorated by the aspirational constitutional promises. It is pertinent to analyze the operationalization of rule of law from the perspective of the global South in pursuit of countering their geo-political marginalization. The first section of the essay will contextualize the period immediately preceding and during the formulation of the three constitutions, domestically and within international geo-politics. The following section will then explore the resultant reflection aspirations of rule of law in the philosophical grounding of the constitutions, as a contrast to its stark absence in the immediately preceding experience with State.
The third section will expand further on the bill of rights, acting as articulation of the foundational tenets of constitutional philosophies previously discussed. The fourth section will then correspond to the role of judiciary, and more specifically Apex Courts of BISA countries, in operationalizing said rule of law through the regime of rights within their respective political systems. The discussion will culminate in concluding remarks in the last section.
1. At the Dawn of Constitutionalism
All three BISA constitutions were a result of mass struggle against oppressive colonial or quasi-colonial regimes. However, unlike the French constitution which was a direct fruition of a revolution, BISA constitutions were composed in an environment made conducive to negotiation and compromise. Despite their history of revolt against State oppression, at the moment of constitutional drafting imperatives of the immediate temporal context and events ensured that the constitutions were drafted in a way to reconcile competing interests. Thereby negotiations, and not revolutions, shaped the content, form and balance of relationship of rights and obligations between State and citizens, so as to effectively address the experience of arbitrary rule by State and perpetuation of social injustice.
Nigam, in context of India, argues that “the whole history of the anticolonial struggle can be read as an intricate process of the writing of the Constitution. The various landmarks of the freedom struggle... are episodes in the writing of the text that emerged, with significant embellishments of course, from the constituent assembly. ”9 However, he goes on to suggest 9 Aditya Nigam, A Text without Author: Locating Constituent Assembly as Event, Economic and Political Weekly, vol. 39, no. 21, pp. 2107–13 (2004). the study of the constituent assembly as an “event”10.
In effect, the composition of the constituent assembly itself and its negotiated rationales derived heavily from firstly, the need for a marked break from the colonial history of oppression by the State and secondly, the immediately surrounding imperatives during the time of its composition, thereby shaping its eventual deliberations.
1.1. Indian Constitution of 1950
The anti-colonial national struggle in India was a bloody affair. While Gandhi had time and again rolled back the freedom struggle on account of violence, the colonial State had no sense of restrain on the atrocities considered acceptable to the regime. The final chapter of Indian struggle for independence was the stark contrast of the Quit India movement of 1942- with most of the prominent national leadership imprisoned, including Gandhi, the movement was truly led by masses and there was no scope for a withdrawal anymore. The colonial state came down with an even harsher crackdown which was taken head on.
The monstrous attitude of the colonizers became more and more unapologetically ruthless with their abuse of Indian resources in World War II, their utter indifference to the Bengal famine, continual state crackdowns on nationalists and the Red Fort trials, amongst innumerable other instances of torturous State excess. The condition of State prisoners was deplorable, with no scope for a “fair trial”. Human rights- socio-economic as well as politico-civil rights- violations had peaked long ago and were only mounting on every day. After the final, apparently benevolent, acceptance of self-rule demand, the Cabinet Mission Plan of May 1946 offered of a “solution” to the Muslim question in the form of tiered election to constituent assembly.
Results of country-wide elections left the Muslim League proponents unsatisfied and following this, uncontrollable communal violence broke out in the country on July 29th, the fateful ‘Direct Action Day’. The partially-elected constituent assembly of India started its deliberations as early as December of 1946, a few months before the onslaught of partition tremors and the preponed British departure in August of 1947. It was on 9th of December, when the first constituent assembly meeting was boycotted by the Muslim League that partition was recognized as a phenomenon which could not be avoided any more. Recognizing the imperative of
10 Id.
consolidating national unity during the continual clash with Muslim League on the Pakistan question, national leadership in constituent assembly including Nehru and Patel, acknowledged the urgency of halting the Muslim League and Scheduled Caste Federation alliance, which could cause further secessionism and thereby accorded Ambedkar an honourable and influential position within the assembly (Nigam 2004). Having lost the battle against partition of the Indian mainland, the rest of the country needed to be kept united in the face of diversity. This marked the intent of the inclusive, pluralist nature of the constituent assembly, capable of reconciling varied and at time divergent interests.
This was amply perceptible in the extensive debates that followed, especially regarding Fundamental Rights which were to be constitutionally protected, while also assuring primacy of securing territorial sovereignty of India from threat, internal or external as well as competing nature of certain rights inter se. The visitor’s gallery of the constituent assembly was graced by the presence of fifty three thousand visitors during the term of constitutional debates11, reflecting the transparent democratization of the constituent process.
1.2. Brazilian Constitution of 1988
Brazilian constitutional history dates back to 1824, initiated by the Portuguese prince Pedro I who overthrew the colonial regime of his own royal family to take over as emperor of Brazil.
It follows that not much changed despite the establishment of the constitution in terms of oppression of indigenous people and slaves. The 1891 Constitution offered redemptive potential in its abolishment of monarchy and promise of primacy of individual liberties, however it remained so only on paper. Continued State failure and deprivation culminated in the coup d'état of 1930, quickly promulgating a new constitution in 1934, which lasted only
3 years. The Estado Novo Constitution of 1937 in effect transformed presidency into legal
dictatorship. While the 1946 constitution pioneered the promise of full political freedom, within two decades in 1964 the military coup d'état took over the political charge. Despite the guarantee of retaining 1946 constitution and the promise to restore democracy as soon as may be practicable, a new constitution was adopted in 1967, furthering State restrictions on basic freedoms and rights of citizens and increasing State absolutism. Brazil’s final transition to a democratic society was inaugurated by the adoption of the Amnesty Law in 1977. It offered a reconciliatory offer for homecoming of the dissenting leaders and absolving of all members of the military government from charges of human rights violations. More tolerance was practiced by military State with regard to criticisms from newly allowed political opposition parties and civil society.
This opened the window for negotiation between the two extremes of the spectrum, and although agreement could not be arrived at for desired amendments, compromise resulted in an agreement to collectively draft a new constitution. The constituent debates were open to civil society members, interest groups and social movement participants. Vieira11 notes that this process is considered the most democratic moment of Brazilian political life. While the first draft of the constitution, the composition of which was presided over by an overtly liberal politician, was discarded by the assembly. However, negotiation efforts advanced towards reconciliatory solution made the articulation of a rights-based constitution possible in the ’Citizen Constitution’ of 1988.
1.3. South African Constitution of 1996
South African constitutional history began in 1910, as a British dominion. Consequently, the constitution was nothing more than a rule book for administration. Parliamentary sovereignty reigned supreme and was used 1950s onwards to establish and engrave the apartheid regime by the whites-only Parliament, which effectively worked as an extension of the racist colonial regime of exploitation. The 1961 and 1983 constitutions maintained that no judicial review was possible for question of substantive equality in apartheid legislation. Liberation movements of the 1960s were curbed by apartheid judiciary, leading to the indefinite imprisonment of leaders like Nelson Mandela. 12 The decolonization of neighbouring States in Africa during the 1970s and the increasing social and political militarization made the sympathizers of apartheid government also question their rationale.
The most significant event in this regard would be the series meetings between government-members, their allies and banned the African National Congress leaders, that took place outside of South Africa. In 1990, the leadership of Nationalist Party was switched and declaration of negotiated transition to democracy was made. While the first negotiation attempt between the apartheid government and the liberation movement in the 11 Oscar Vilhena Vieira, ‘Descriptive overview of the Brazilian Constitution and the Supreme Court’, Chap. 5 in Transformative constitutionalism: Comparing the Apex Courts of Brazil, India and South Africa (Pretoria University Law Press 2013), pp. 75-104
12 J. Joffe, The State vs Nelson Mandela
The trial that changed South Africa (2007) form of CODESA13 failed completely, acknowledgement of threat of civil war resulted in resumption of negotiations in the form of Multi-Party Negotiation Process in 1993. The interim constitution set in place the foundational constitutional principles. It further made provisions for formation of a Constitutional Court, which continues as the same, for certifying the final draft of constitution by the constituent assembly so as to ensure its compliance with these foundational principles (the first submitted draft was actually rejected, and only the amended second draft was approved in December 1996). Its concluding section was in effect an amnesty provision for political offenders. For the sake of stability, the transformation of apartheid judiciary was deferred to the future.
1.4. Comparative geo-political context
These three constitutions find themselves situated in the first, second and third generation of Third World constitutionalism14 respectively. As conceptualized by Baxi, first generation of Third World constitutionalism indicates constitutions formed after the Second World War (Indian Constitution), second generation denotes constitutions formulated during various phases of the Cold War (towards the very end- Brazilian Constitution) and the third generation refers to post-Cold War constitution making (as in the case of South African constitution). Thus the geo-political context in which the birth of these nascent constitutions are situated provide a distinctive basis for comparison of their constitutional philosophies.
In another work Baxi15 has noted that “The state of the art stood relatively richly developed when the Brazilian (1988) and South African Constitutions were composed; in contrast, the Indian Constitution was written almost co‐equally with the Universal Declaration of Human Rights (UDHR). The mid‐twentieth century CE Indian Constitution is as much a truly inaugural post‐colonial constitution as is the South African Constitution towards its end. ”
2. Post-colonial Constitutional Philosophies- Commitment to Transformation into
Society based on Rule of Law Having contextualized the process of democratization of BISA States, we may now indulge in the foundational philosophy of each constitution reflecting their devotion to the ideal of
13 Confrence for Democratic South Africa, 1991.
14 Ibid 1. (footnote 19, pg.187)
15 Ibid 5.
rule of law, a direct consequence of prior State oppression. Their preambles and fundamental principles are often cited as direct reflections of their philosophical grounding, however another interesting demonstration of this commitment to denote a marked break away from history of oppressive rule, lacking rule of law, towards an aspirational embedding of rule of law in post-colonial constitutionalism is seen in the poetics of metaphors adopted by the constitution makers. Baxi16 has expounded that “major discontinuities inhere in the constitutional project which installs a new order of representation of the national “selfhood”. Constitutions are constructed as moral autobiographies of “new” nations, promising a new future, vigorously disinvesting the colonial past”.
This aspect metaphorical articulations of constitutional founding moment is taken up for consideration by Mehta, who states “they (foundational moments of constitutions) typically feature sharp contrasts in much the way Hobbes had starkly distinguished the commonwealth through the morbid imagery with which he described the state of nature. Here words often need the support of images. In the founding of constitutions this is conspicuously the case. They are often spoken as constituting a drama and they typically rely on dramatic images and metaphors to service their monumental purposes. They are conceived and projected through the iconography of darkness and light, night and dawn, past and future, subjugation and rebirth, chaos and order, and despair and hope.
”17 The infamous mid-night speech of Nehru delivered at the brink of Indian independence began the romanticized notion of freedom and self-rule in India as fruition of a ‘tryst with destiny’. The first leader of the newly independent Indian State proclaimed that- “Now the time has come when we shall redeem our pledge - not wholly or in full measure - but very substantially. At the stroke of the midnight hour, when the world sleeps, India will awake to life and freedom. A moment comes, but rarely in history, when we step out from the old to the new, when an age ends, and when the soul of a nation, long suppressed, finds utterance. ”18 More concretely endowed in the epilogue to the South African Constitution, the metaphor of a bridge has gained immense significance- the constitution is seen as a “a historic bridge
16 Ibid 1.
17 Uday S. Mehta, Indian Constitutionalism, Ch.3 in the Oxford Handbook of the Indian Constitution, Part I History, ed. by Sujit Choudhary et al. (2016).
18 An excerpt from Jawaharlal Nehru's Tryst of Destiny speech, August 15, 1947
between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co‐existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex. ”19 While no direct metaphors were crafted around the Brazilian process of constitutional making, several scholars like Santiago20 have stated it to be a “bet on the welfare state as a way to break a reality of exclusion and inequality”. He has also noted observations by José Afonso da Silva stating that “The 1988 Constitution (... ) emanated from a procedure with a lot of popular participation. It was made a Constitution that broke off with the past. ” The consideration then begs the question of what significance does such imagery hold?
Mehta clarifies, that the purpose goes deeper than simple underscoring the moment of their inception- “initially, and above all else, constitutions need to clear the ground for a future set of experiences. The contrasts that are implicit in the metaphors they trade in are linked with distinctive narratives and constitutional visions and ultimately linked with the contested nature of modern politics... The starkness of the contrasts that the founding of constitutions rely on, and deploy, are the metaphorical and textual precursors to the grand and expansive project of remoulding of experience and giving it a distinctly political and national cast. ”21
3. Scheme of Bill of Rights- Negotiated Articulation of Rule of Law
3.1. Indian Constitution, Chapter III and IV- Fundamental Rights and DPSPs
The Bill of Rights under the Indian Constitution recognize the bifurcation between positive rights which require positive action by the State and negative rights which require constrain on use of State power. It was acknowledged by the conclusion of constituent assembly debates that while positive action (to correct socio-economic problems inherited from the colonial regime) on part of State can only be mandated as far as practicable, negative constrains absolutely must be exercised for protection of citizens from State excess (to correct politico-civil violations done by the colonial regime as well as socio-civic inequalities
19 Epilogue, Constitution of Republic of South Africa, 1996.
20 Marcus Firmino Santiago, “The 1988 Brazilian Constitution and its Country Project
Is There Still Room to Dream?” Boletín mexicano de derecho comparado, vol. LIII, no. 159, 2020, September-December, pp. 12071234
21 Ibid 17.
prevailing in pluralist Indian society). Accordingly, while politico-civic rights were granted judiciable protection as ‘fundamental rights’, socio-economic rights were given as aspirational goals meant to be strived for by the State. Shankar22 notes dissent raised by a minority section of the constituent assembly on grounds that a constitutional document ought to protect citizens from oppression of poverty, lack of vitality, lack of morals, inhuman greed, and consequent exploitation, ruthless profiteering and consequent oppression. They argued that this should not be made contingent on State’s economic capacity. However, the final negotiated outcome kept socio-economic rights as a directive principle for State to follow.
Dr BR Ambedkar supported the non-judiciable nature of social rights and justifying it on grounds of infancy of the Indian State and the commensurate need to be able to prioritize the order, time and mode of fulfilling directive principles. He has been quoted to state that “the intention of the Assembly that in future both the legislature and the executive should not merely pay lip‐service to these principles enacted in this part but that they should be made the basis of all executive and legislative action that may be taken thereafter in the matter of governance of the country. ”23 As for Fundamental Rights, their basic content relates to right to equality and nondiscrimination, right to freedom, right to life and liberty, right against wrongful criminal persecution, right against exploitation, right to religion and cultural and minority rights.
However, these rights, while made inviolable by legislative action of State24, were still conceived as a ‘gift from the State’ and thus had to be understood as qualifiable wherever required. State security and public interest are prominent amongst other ‘reasonable restrictions’ on Fundamental Rights contained in the corresponding articles themselves. Furthermore, fundamental rights or right to approach courts for their vindication may be suspended by Presidential order during periods of State emergency.
3.2. Brazilian Constitution, Title II- Charter of Fundamental Rights and Guarantees
In a marked break from previous Brazilian constitutions, the 1988 Constitution placed the chapter on Fundamental Rights at the beginning of the text, instead of the fag end. Vieira25 notes this as a symbol of presupposition of these rights in the exercise of State power. Other
22 Ibid 11.
23 Indian Constituent Assembly Debates
24 Art. 13, Constitution of India 1950.
25 Ibid 12.
parts of the constitution also contain dispersed rights significant to the State-citizen relationship. The Charter of Fundamental Rights under the Brazilian Constitution guarantees rights under the general categories of political rights, social rights, economic rights (including tax payers’ rights) and rights of vulnerable groups. The regime of fundamental rights is strongly mandated upon the actions of States. For instance, budgetary allocation of social expenditure on education is constitutionally mandated26 and the mandate on right to health also required legislative determination of a formula corelating social expenditure and State revenue. The general application of Fundamental Rights is operationalized by the concluding paragraphs of Article 5 of Brazilian Constitution.
Firstly, these rights are made immediately applicable, guaranteeing independence from deliberate or casual omission by legislature and executive. The regime of rights is given a further expansive scope by acknowledgement that these Fundamental Rights are not exhaustive, and should be understood to be inclusive of derived rights from the constitutional philosophy and international covenants (if approved by Congress using constitutional amendment process). At the very end, situations of exceptionalism are recognized in terms of situations of State emergency- State of defense (internal disturbance and need for reestablishment of order) and State of siege (external disturbance or war). Thereby, these rights could only be curtailed in exceptionally extraneous circumstances only and not otherwise.
Furthermore, Fundamental Rights are a constitutionally provided limitation on the power of Congress to legislate (ordinarily) or even pass constitutional amendments. They are situated as absolutely sacrosanct against legislative invasion.
3.3. South African Constitution, Chapter 2 - Bill of Rights
The Bill of Rights under the South African Constitution, made applicable on all branches of government and all persons natural or juristic27, is often interpreted as a ‘blueprint’28 for social transformation of the violative apartheid society into an egalitarian social order. Accordingly, the rights contain protection against the socio-civic discriminations that
26 Article 212, Constitution of Federal Republic of Brazil, 1988
27 Section 8, Constitution of South Africa, 1996.
28 Dennis Davis ‘Socio‐economic rights
The promise and limitation – The South African experience’ in D Barak‐Erez & AM Gross (eds) Exploring social rights: Between theory and practice (2007) 193. pervaded apartheid society as well as ambition for resurrection of majority of the population from apartheid induced impoverishment. The explicitly enunciated founding values of the Bill of Rights include equality, freedom, dignity, democracy and social justice. Therefore it follows that the bill of rights generally covers socio-economic aspects, substantive equality mandate, labour rights, cultural and religious rights. General limitation on bill of right, in favour of social policies and legislations, is imported by Section 36. The ideal of dialogical accountability established through Bill of Rights is most adequately reflected in the articulation of right-based litigation procedure under the South African constitution.
To begin with, the onus of proving violation of right resides with the petitioner, while the constitutional mandate for judiciary is to interpret the parliamentary law in the most rights-friendly manner. Once proven, the onus is shifted to the violating entity to prove that violation is justifiable in terms of its nexus with implementation of some social policy and commensurate proportionality of violation. If the court finds that the right has been violated and violation is not justifiable, only then will it proceed to determine an adequate remedy. Even then, the most preferable option is to withhold declaration of invalidity of legislation for a specified period of time and give the concerned branch of government a chance to rectify the right-violating aspect.
4. Operationalization of Rule of Law- Place of Apex Courts within Political systems
Since the Bill of Rights have been understood as the most applied articulation of Rule of Law, the role of the Apex Courts becomes exceptionally significant since without the protection of these rights by the judicial branch, the Rule of Law envisaged in their spirit cannot be effectuated. The same is reflected in Baxi’s multitudinous constitutionalism29. He accords a distinctive and irreplaceable role to the activist judiciary (C7) in furthering constitutionalism through interpretative praxes and thereby expanding the body of constitutional law (C2). The effectiveness of the same entirely depends on the position occupied by the Apex Courts (court with the final say on constitutional matters) within respective political systems and the extent of their judicial review powers i. e. , power to examine constitutionality of legislations or other actions of government.
This political place is determined essentially by constitutional provisions regarding the role of judiciary and the judicial policy adopted by Apex Court
29 Ibid 5.
(which may evolve over periods of time). Aside from this there was also a universal wave of increasing importance of judiciary in the latter part of 20th Century due to twin reasons of spread of capitalist globalization with its preference for the stability in legal system offered by judiciary over the legislative counterpart and secondly, the failure of representative State system to stay inclusive and not give in to majoritarianism. However, the role of judiciary in transformative constitutional projects is even more significant, considering the guardianship of constitutional values that is shouldered on the judiciary. Such constitutions (like the BISA constitutions) have accorded an especially designated role to the judiciary in protecting their ambitious aspirations of Rule of Law in terms of keeping a check on State’s power.
Thereby, they share a peculiar relationship with the other State organs within the political system.
4.1. Indian Supreme Court
Article 32 of the Indian Constitution endowing the right of judicial review upon the Supreme Court with regard to violation of Fundamental Rights, was described as the heart of the Indian Constitution by its Father, Dr. Bhim Rao Ambedkar. While some have criticized it as too active, others have deemed it too restrained. However, there is unanimous consensus that it is one of the most powerful courts across the globe, some even referring to it as imperium in imperio (an order within an order). Infact the reason for this dual criticism stems from the balanced role played by the judiciary in advancing support to legitimate State action and at the same time keeping check on excesses attempted by colourable State actions. Instead of adopting a mechanical view, the Indian SC has successfully maintained a purposive outlook to its function.
It has maintained a balance between pro-State and pro-citizen points of view and depending on contextual circumstances of each case. Three phases of judicial interaction with the parliament can be marked out in postindependence history of India. Beginning with the early phase of Indian state under Nehruvian leadership, the SC reposed confidence in the parliament which overlapped considerably with the constituent assembly and was respected as such. A notable shift in judicial response to political executive was witnessed when Indira Gandhi took over as Prime Minister. This was the beginning of the phase of judicial activism, which peaked with Gandhi’s imposition of emergency in 1975. Thereafter, courts had to play a decisively activist role in favour of masses since the period of emergency exemplified the State excess that the citizenry was to be protected against.
Since then, at the behest of judicial activism the Bill of Right have been exponentially expanded to include derivative rights, converting many socioeconomic rights under DPSP into Fundamental Rights and exercise of power by State machinery has been kept under strict check. Rights-based jurisprudence of the Indian SC has even contributed innovations such as the rule of absolute liability against corporations, expansion of locus standi to include PILs and acceptance of letters as petitions before the SC.
4.2. Brazilian Supreme Federal Court (STF)
Article 5 prohibits the expulsion of judicial review regarding violation of fundamental rights by any law. Thereby, the STF has critical powers for protection of fundamental rights and has further been endowed with the duty of constitutional guardianship. It has extensive jurisdiction- being the constitutional court, court of last appeal as well as specialized judicial court. The role imparted by STF since 1988 has been divided into four distinct phases by Vieira30the first stage concerned the court with constitutional questions regarding division of State power and other political concerns. With the inflation rise in early 1990s, the STF’s focus shifted towards economic concerns of the republic. The third era was a phase of constitutional reform effected by the liberalization process of 1990s and reconfigurations of public-private distinctions.
Only after 2000 did the court begin to dedicate focused attention towards the Fundamental Rights Agenda including civil rights, freedom of expression, due process in criminal trials, rationalization of social rights and questions regarding indigenous peoples’ right to their land. As the constitutional court, it has furthered democratization of the judicial process by extending the list of actors who can directly approach STF for review of Fundamental Rights violation and also by allowing and encouraging public viewership of deliberations, either
30 Ibid 12.
directly or through TV Justica an open public channel which televises its sessions. Moreover, it has opened itself to submission of amicus curie briefs from civil society and other interested organizations in cases which have pervasive public impact. A significant note regarding the functioning of STF post-1988 Constitution is that the justices appointed during the military regime were not immediately removed, in fact they continued in office till their respective retirements and as and when vacancies came up, they were filled with new nominations. The last of militaryregime judges actually served up till 2003. The transformation of the judiciary was not coterminous with the promulgation of the new constitution and thereby, the ideological changed was also gradual.
4.3. South African Constitutional Court
The Constitutional Court in South Africa was established by the interim constitution to verify the philosophical soundness of the newly made constitution, however the 1996 constitution retained this institution for providing principled guidance to political actions and aspirations. It followed that since the institution was pre-existing, from the time of apartheid State, the same judiciary continued in office. Even the 1996 constitution deferred the rationalization of judiciary. The constitutionally mandated rationalisation or transformation of the apartheid judiciary has come to mean three distinct things. Firstly, it refers to the change in the racial and gender composition of the courts and thus the appointment process of judges. Secondly, it refers to changes in the jurisdiction and power of the courts within the over‐all court structure.
Lastly, it refers to a change in the legal culture or interpretive jurisprudence of the courts. 31 The lack of attention paid to this imperative has often been justified by stating that such rationalization is an ‘ongoing process’, however it remains mostly unresolved even more than two decades later. This is despite the Constitution prescription that ‘[t]he need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed’. 32 However, the way the constitution envisages the judicial function has been succinctly 31 D Moseneke ‘Separation of powers, democratic ethos and judicial function’ (2008) 24 South African Journal on Human Rights 341 351.
32 Sec 174(2), Constitution of South Africa, 1996.
symbolized in the architectural setting of the Constitutional Court atop the Constitutional Hill precinct33. Roux describes that “Court sittings take place in public in a court chamber purposefully designed to accentuate the openness and accountability of the Court. The official logo of the Court and the architectural imagery of the court building depicts the Court metaphorically as a deliberative gathering of the constitutional community under a tree. ”34 He further argues regarding the judicial policy of Constitutional Court that the Court secured both political and public legitimacy by strategically or pragmatically compromising on constitutional principle in key judgments. Currie refers to initial stages of working of Constitutional Court as marked with a policy of “judicious avoidance”35, even two decades later the situation has not changed much.
Inactiveness of court in exercising its strong review powers is inhibiting the advancement of constitutionalism in South Africa. However, the result of this trend has been seen in the undermining of judicial powers by other organs of the state. “The Constitutional Court has been criticised for its seemingly naive faith in the commitment and ability of the state to act in an appropriately remedial manner in response to the judgments of the Court... The image and reality of a Constitutional Court that is impotent to enforce its judgments and orders, and thus to provide effective relief for rights violations, undermines the very basis of the rule of law and constitutional democracy.
”36 Conclusion The comparative consideration of BISA constitutions explicates the desperation of these postcolonial nations to break from a past of oppressive State authority, yet having to carry forward the same system and institutions of governance, at times with the same office bearers, thereby facing a juncture requiring reconciliatory acceptance of this paradox of continuity and discontinuity37. However, one point beyond the scope of negotiation in all three constitutional projects relates to the protection of citizenry from State excess, with or without continuation of State machinery- thereby, the redemptive promise of Rule of Law is 33 L du Plessis ‘The South African Constitution as memory and promise’ (2000) 11 Stellenbosch Law Review 34 Wessel le Roux, ‘Descriptive overview of the South African Constitution and Constitutional Court’, Chap.
7 in Transformative constitutionalism: Comparing the Apex Courts of Brazil, India and South Africa (Pretoria University Law Press 2013), pp. 135-175
35 I Currie ‘Judicious avoidance’ (1999) 15 South African Journal on Human Rights 138.
36 Ibid 35.
37 Ibid 1.
nonnegotiable in post-colonial constitutions. Such constitutional promises of redemptive and transformational potential are directly translated to their respective bill of rights- rights that citizens hold against the State, thereby predominantly determinant of State-citizen relationship, guarding citizens against State excesses and protecting the nascently established Rule of Law. The study of BISA constitutionalism predicates that despite establishment of principles of Rule of Law within constitutional texts, their functionalization in constitutionalism rests with the way Apex Courts use interpretative powers to operationalize them most effectively. However, in the flow of such transformative fervour triggering an over moralistic interpretation, one must not lose sight of the purpose of these constitutionally endowed rights.
They are meant to balance citizen interests with that of nation at large, represented by the State. The purpose of Bill of Rights is to establish a political culture of justification and initiate a dialogical relationship of accountability between State and citizens, as an anti-thesis of the past of authoritarian rule. Nedelsky38 advanced such an argument in context of Canadian Bill of Rights, however it remains equally applicable here- if rights are to become central to our political discourse, it is necessary to reconceive of rights, not in the liberal tradition as trumps, but as the medium or fabric of equal relationships that foster autonomy. This ideology of rights should guide the judicial policy undertaken by respective Apex Courts of BISA countries for effectively operationalizing the regime of rights embodying Rule of Law in post-colonial constitutionalism.
38 Jennifer Nedelsky, Reconceiving Rights as Relationship, Review of Constitutional Studies / Revue d’études constitutionnelles, Volume 1, Issue 1 (1993)