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.
* * *
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
19th 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 21st 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.
* * *
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).
