A Suitable Paradigm: the Indian Founding and the world

What is the relevance of the Indian case for South Africa? And what should South Africans, and the rest of the world, make of the claim in Madhav Khosla’s India’s Founding Moment that we should recognize India as ‘the’ paradigm case for modern constitutional democracy? The constitutional projects of India and South Africa are naturally connected, but Khosla’s book helps to bring out what is perhaps the most important of the connections. Both are founded on an insistently democratic constitutionalism, in places where most inhabitants had long been told they were not suited or ready for democracy. Both display the conviction that boldly giving the vote to all, in these circumstances, is a powerful way to construct a democracy. This idea is crucial for understanding many aspects of both constitutions. This makes India a natural paradigm case for South Africa and many others. The stronger claim, that it is ‘the’ paradigm case and should succeed the United States to this status, can become more complicated once one tests it out globally (like the US claim). Finland and Ireland are especially strong and earlier examples of what Khosla sees as ground-breaking in India. Latin America’s somewhat different post-colonial trajectory makes India a more imperfect paradigm there. But that said, treating India and its founding as paradigmatic may well be the single best step to take for a more balanced view of the constitutional world, and this book’s elegant erudition makes it a real scholarly pleasure to do so.

Populist Government and Constitutional Democracy

Until the first decade of the 21th century, scholars and reporters have identified contemporary populism as an element of anti-systemic revolt; furthermore, they have also recognized an incompatibility between populist phenomenon and government function. However, some recent cases of populist parties in power seem to be able to put into crisis more than one certainty regarding the nature and scope of the populist phenomenon. This observation raises the questions of this work: what harmful effects does populism in government produce on liberal institutions, pluralism, and representation in constitutional democracies? Do these effects merely erode the liberal component, or do they extend to produce a degeneration of democracy as a whole? And finally: what are the risks for democracy? The article corroborates the diarchic theories of democracy and aims to demonstrate the lack of compatibility between the principles of liberal democracy and populist principles, which have a negative impact not only on the liberal component, but also on the quality of democracy in its entirety.

An assessment of the constitutionality of the COVID-19 regulations against the requirement to facilitate public participation in the law-making and/or administrative processes in South Africa

The purpose of this article is to critically assess the constitutionality of the COVID-19 regulations against the backdrop of the constitutional mandate to facilitate public participation in the law-making process in South Africa. This assessment is conducted by outlining the scope and content of public participation. This will be followed by an exposition of the legal framework that provides for the duty to facilitate public participation in South Africa. Thereafter, the scope and content of the duty to facilitate public participation is assessed against the conduct of the government in promulgating the COVID-19 regulations. The authors argue that the disregard for and limited nature of public participation during the process leading up to the enactment of the COVID-19 regulations amount to a material subversion of the core tenets of our constitutional democracy and largely renders the COVID-19 regulations unconstitutional for lack of procedural compliance with the demands of the Constitution. The authors provide a few recommendations to remedy the unconstitutionality of the regulations and further propose guidelines to facilitate public participation in cases of future pandemics and/or disasters of this nature.

Decolonial Coalitions: Afro-Brazilian Feminisms and the Poetic-Politics of Quilombo

Moving beyond the legal and historical hegemonic definitions of the quilombo, this paper investigates continuities in gendered racial violence in Brazil by evoking the political and poetic of the quilombo. Inspired by the works of the historian and poet Beatriz Nascimento, the multifaceted notion of quilombo is conceptualized as an ongoing praxis of fugitivity and coalition that draws on the interconnectedness of anti-colonial, feminist, and anti-racist struggles. In exploring geopolitical breaks and epistemological ruptures, this paper fosters a necessary conversation between theory and practice by engaging with the living archives of three Afro-Brazilian writers and activists: (i) Beatriz Nascimento’s fundamental contributions on the political, material and symbolic dimensions of quilombo; (ii) the legacy and vision of Marielle Franco focusing on the necessity to ocupar the institutional politics like a growing seed; (iii) the work of Erica Malunguinho and Mandata Quilombo through the praxis of aquilombar the constitutional democracy, based on the alternation in representative power and repossession.

Constitutional Democracy and Electoral Commissions: A Reflection from Asia

This symposium explores the role of “fourth branch” institutions, and specifically the role of independent electoral commissions (IECs) in protecting and promoting constitutional democracy. It does so by focusing on the global South, and Asia in particular. It aims to go beyond the “usual suspects” in comparative constitutional law, and put the constitutional experiences of countries such as Indonesia, Kenya, Myanmar, Malaysia, and Sri Lanka at the centre of a decolonized constitutional project and understanding, supplementing them with an examination of more-often-studied systems such as Australia and India.

AKSIOLOŠKE OSNOVE USTAVNE DEMOKRATIJE I POPULIZMA

The paper discusses the axiological foundations of constitutional democracy and populism, as well as the influence of populist movements on law, legal processes, liberal democracy and the state order as a whole. The conceptual definition of populism in the situation of stable functioning of the political system inevitably leads to the conclusion that it represents an anomaly and an absolutely retrograde political phenomenon in the conditions of globalization and constant changes in modern societies. A serious crisis of the political system, that is, consequently, of the state- legal order as a whole, puts things on a completely new basis, providing an opportunity for a deeper and more complete understanding of the phenomenon of populism and its impact on constitutionalism and democracy.

Sri Lanka's First Election Commission: Strengthening Electoral Management or Advancing Electoral Integrity?

The undisputed success of Sri Lanka's first Election Commission (2015–2020) was the conduct of free and fair elections, that is to say, electoral management. I argue in this article that, by design and in practice, it was unable to or failed to advance electoral integrity that is urgently required for the health of Sri Lanka's constitutional democracy. At critical points when electoral integrity and constitutional democracy were threatened, it was the Court, the traditional institutional check on the Executive and the Legislature, that prevented its further erosion. The Commission, therefore, was an institutional innovation that addressed symptoms of Sri Lanka's ailing constitutional democracy but not its root causes. The Commission has been a necessary but insufficient fix for the electoral pathologies of Sri Lanka's constitutional democracy. Its ‘guarantor’ function, as I illustrate in this article, is narrowly conceived, perceived and lived out.

Is the Universe on Our Side?

America cannot go on this way without risking the end of constitutional democracy. We have already entered post-liberalism. But there is something to be done. We can launch a new story, and thus begin to recover normal public life, by asking the ultimate question bequeathed to us by Bernard Lonergan: Is the universe on our side? Asking an ultimate question restores faith in questioning itself. That kind of questioning ends the Age of Evasion. We ask Lonergan’s question through a loose cultural entity he called “cosmopolis.” As long as we agree to live by our answer to this question, even a no can contribute to the healing of American public life.

Filtering Populist Claims to Fight Populism

The new wave of populism that has emerged over the last five years in Europe and in the US urgently needs to be better understood in a comparative and historical context. Using Italy – including the experiment of a self-styled populist coalition government – as a case study, this book investigates how populists in power borrow, use and manipulate categories of constitutional theory and instruments of constitutional law. Giuseppe Martinico goes beyond treating constitutionalism and populism as purely antithetical to dive deeply into the impact of populism on the activity of some instruments of constitutional democracy, endeavoring to explore their role as possible fora of populist claims and targets of populist attacks. Most importantly, he points to ways in which constitutional democracies can channel populist claims without jeopardizing the legacy of post-World War II constitutionalism. This book is aimed at academics and practicing lawyers interested in populism and comparative constitutional law.