Prospects for Constitutional and Human Rights Transformation through Constitutional Adjudication in Zimbabwe after 2013

The article is based on the notion that real socio-economic and political transformation did not follow the adoption of the 2013 Zimbabwean Constitution. Relying on theories of constitutionalism, transformational constitutionalism and transformative adjudication as contemplated by Karl Klare, the question of whether it is possible for the transformation agenda to be accomplished in the absence of political will, and the extent to which the courts can be used as a means of attaining this, is addressed. The article uses a socio-legal research method by drawing arguments from legal and policy-related literature. The jurisprudence of the Zimbabwean Constitutional Court is compared with other jurisdictions such as Kenya and South Africa that adopted interpretative and adjudication methods that have changed the lives of the people, especially with regard to socio-economic and civil and political rights. It is observed that while commendable progress has been made by the Zimbabwean courts, the jurisprudence is still fraught with inconsistencies and lacking in transformative legal culture.

In the Region of Middle Axioms: Judicial Dialogue as Wide Reflective Equilibrium and Mid-level Principles

This article addresses the use of foreign law in constitutional adjudication. We draw on the ideas of wide reflective equilibrium and public reason in order to defend an engagement model of comparative adjudication. According to this model, the judicial use of foreign law is justified if it proceeds by testing and mutually adjusting the principles and rulings of our constitutional doctrines against reasonable alternatives, as represented by the principles and rulings of other reasonable doctrines. By this, a court points to a wide reflective equilibrium, justifying its own interpretations with reasonable arguments, i.e. arguments that are acceptable from the perspectives defined by other constitutional doctrines, as endorsed by other courts. The point of a judicial engagement of this sort is to work out an overlap between different, reasonable, doctrines in the judicial forum, as part of a liberal forum of public reason. Here, the exercise of public reason filters out the premises of comprehensive doctrines so as to leave us in the region of an overlapping consensus: a region of mid-level principles that can be shared, notwithstanding the fact of legal pluralism.

Transnational constitutional engagement: A contextualization of global constitutionalism by the Constitutional Court of South Korea

Through the analytical framework of ‘transnational constitutional engagement’, this article examines the dynamically developing practices of the South Korean Constitutional Court as it engages with international and foreign elements, both within and beyond constitutional adjudication processes. Diverse underlying factors and orientations in varied contexts, and the complex interactions between them, are responsible for shaping the modes of a local constitutional actor’s engagement with the transnational. In the vertical aspect, the court adopts international human rights law as a substantive standard of constitutional review through a version of cosmopolitan constitutional interpretation, while it has nevertheless exhibited ambiguity and incoherency in concrete applications. The horizontal aspects of transnational engagement include the court’s practice of referencing foreign law and cases in constitutional adjudication. The vibrancy and the evolving patterns of its citation practice reflect the court’s growing self-perception vis-à-vis the world – although limitations remain, such as geographical asymmetries among referenced jurisdictions. The court has also been enthusiastic in interacting with various transnational counterparts beyond adjudication processes, demonstrating eminent leadership in regional network-building among constitutional courts in Asia. With both cosmopolitan aspirations and nationalist ambitions playing a role in their shaping, the modes of transnational constitutional engagement are not to be generalized, but require contextualization, and the relevant practices should be subject to constant evaluations for their contribution in producing sound and effective concretizations of the values of global constitutionalism.

The principle of rule of law and independence of the judiciary in Myanmar

Aim. This research aims to discuss the importance of the principle of rule of law in protecting the judiciary’s role, especially the independence of constitutional adjudication and its functions. Methods. The study applies the case study approach and comparative method to investigate the constitutional court systems of some countries of the Association of Southeast Asian Nations (ASEAN) and their independence. Results and conclusion. The resultsreveal a lack of the judiciary’s independence, even among the top branches that are trying to implement democracy in Myanmar. The judiciary is under the control of the executive and legislature branches as their members belong to political parties. Moreover, a constitutional court is established with the members who are elected and nominated by the legislature and executive. Sometimes there can be conflicts when constitutional law does not mention the division of powers among governmental organisations like Myanmar, which results from the impractical functions of the Constitutional Tribunal of Myanmar. Cognitive value. This research highlights possible ways to solve the constitutional issues among the three great branches. This initiative is in the interest of Myanmar citizens and citizens of all nations as these are international issues.

Relinquishing Eternity

This chapter investigates the possibility of repealing eternity clauses and renouncing doctrines of implicit unamendability. It looks at two case studies from Turkey and India, where backtracking from an eternity clause and basic structure doctrine were debated and ultimately rejected. It also explores the possibility of placing judicial doctrines of unamendability on formal constitutional footing and discusses the impact of this move on constitutional adjudication. This chapter examines the distinctions upon which unamendability repeal rests, such as between constitutional amendment and constitutional revision, between formal and informal amendments, and between amendment and revolution. It shows how pushing back against unamendability is very difficult through formal constitutional change and unlikely through judicial interpretation.

Introduction

This chapter reviews the growing literature on constitutional unamendability and provides a unique analysis of unamendability in democratic constitutionalism. It looks at the democratic challenge of eternity clauses that goes beyond the old tension between constitutionalism and democracy. It also assesses unamendability in constitution-making and constitutional interpretation. This chapter reveals how eternity clauses are a far more ambivalent constitutional mechanism than hitherto understood, which has greater and more insidious potential for abuse. It offers a novel look at unamendability in democratic constitutions by placing the rise of eternity clauses in the context of other significant trends in recent constitutional practice, such as the rise of participatory constitutional change and the transnational embeddedness of constitution-making and constitutional adjudication.

Toward a Constructive Constitutional History

This chapter explores the lessons for the theory of constitutional adjudication that emerge from this book’s account of the meaning of cases and controversies in Article III. Proposing a constructive or synthetic approach to constitutional interpretation, the chapter urges the U.S. Supreme Court to substitute a litigable interest standard for the modern case-or-controversy rule. Such an approach would enable the Court to uphold the right of individuals to pursue uncontested claims as authorized by Congress and to continue to insist on adversary presentations in the disputes that parties present to federal court for resolution. The constructive approach advocated here differs from the position sometimes advanced by originalists in that it seeks to accommodate the lessons of the eighteenth, nineteenth, and twentieth centuries in formulating a measure of the limits of judicial power.