The Challenge of Transforming Mexican Authoritarian Constitutionalism

In 2018 Mexicans chose the most profound political change since the transition to democracy. The alternation between political parties in the presidency and the two houses of Congress has meant a change of regime in which a social transformation is announced. The starting point to outlining a constitutional transformation is not a trivial matter, because the proposed change concerns the existing situation. This chapter proposes Roberto Niembro Ortega’s understanding of authoritarian constitutionalism according to the Mexican reality between 2012 and 2018. Its purpose is to understand the sort of authoritarian constitutionalism that existed in those years in Mexico as a starting point to begin a constitutional transformation.

Postcolonial Proportionality

In Johar, the Supreme Court unanimously struck down Section 377 of the Indian Penal Code (IPC), which criminalized same-sex relations. The idea of transformative constitutionalism figured centrally, as did a piece of the global template of rights-protection—proportionality. In Johar, the Indian Constitution was envisioned as a transformative document, in two senses: anti-colonial and cosmopolitan. It gave birth to a radically new constitutional order that conferred citizenship and political power on the previously disenfranchised living under the yoke of British imperial rule. The Indian Constitution was also a cosmopolitan constitution in its fidelity to the universal principles of liberty, equality, and fraternity. These two conceptions of transformative constitutionalism define the scope of admissible reasons for proportionality analysis. Section 377 of the Indian Penal was unconstitutional on the cosmopolitan ground that mere social morality was an insufficient reason to limit the right to engage in harmless, constitutionally protected activity, the basis on which courts around the world have struck down parallel provisions. I argue that Section 377 was also unconstitutional for the anti-colonial reason that it was an element of the Imperial constitutional order in British India in the period after the Indian Mutiny in 1857 of indirect colonial rule.

Inequality and the Constitution

In Latin America, legal scholars interested in social change seem to be obsessed with rights. Consequently, they tend to devote most of their intellectual energies to imagining new rights to be included in the new Constitutions; to finding new arguments for the judicial enforcement of social rights; and to suggesting new and alternative judicial remedies and responses, directed at implementing those social and human rights, both at the national and international level. Preoccupied with the inclusion of new rights into the Constitution, they forget about the importance of changing the rest of the constitutional document accordingly, so as to facilitate the political enforcement of those new rights. This chapter examines three different responses to the social conflicts generated by situations of profound political and economic inequalities in the region, and tries to draw some lessons from those different legal traditions, in order to improve our understanding about equality, social rights, and the Constitution.

Transformative Constitutionalism

The Brazilian experience with a transformative constitution and an empowered constitutional court has so far been mixed. This chapter uses the case of Brazil to draw three sets of lessons. First, courts are part of the broader arrangement of government institutions which are shaped by elections over time; these dynamics may lead to mismatches between blueprints for constitutional transformation, over time and across different actors and institutions. In Brazil, such a mismatch initially led to the Supreme Court resisting the broad transformative mandate it had received in the new constitutional text. Second, a change in how courts describe their transformative mandate in their decisions is a poor measure of actual change in how they perform their role. Third, while judicial decisions might not be enough to transform existing patterns of inequality, they can still positively change the court’s standing before the public, in general, and scholars in particular. This scenario might lead courts to fashion an optical illusion: judges might choose cases with transformative potential and issue rulings requiring major, structural changes in the way the government deals with certain issues, only to refrain from following up on what happens after these decisions are taken. They reap the benefits of being associated with transformative discourse and move on to the next issue, leaving the status quo largely undisturbed. For these reasons, while the Brazilian experiment with transformative constitutionalism has not necessarily been unsuccessful, it should not be read as a success case of ‘court-centric’ approach to transformative constitutionalism when it comes to social rights and material inequality.

Comparing as (Re-)Imagining

The chapter reflects on the question of what a Third World ‘approach’ to comparative constitutional law might ‘look’ like. What this question effectively asks is, in other words, how should we exercise our imagination. For the most part, jurists don’t consider this question, and even when they do, they don’t take it literally. In attempting to answer it, however, this chapter will do just that, in part, by trying to answer a set of accompanying questions: what else, beyond ‘perspectives’ and ‘vantage points’ is there to the practice of envisioning? What could or should be envisioned differently? How does ‘looking like’ relate to the polemical, affective, disciplinary, and rhetorical dimensions of our imaginations?

Socio-Economic Rights and Expanding Access to Justice in South Africa

A key dimension of transformative constitutionalism has been the inclusion of justiciable socio-economic rights in Constitutions of the Global South. Yet, to ensure these rights are enforceable, it is necessary to consider whether individuals in these societies can gain access to justice. This chapter first offers a theoretical conception of access to justice as a capability which has two dimensions: an internal dimension relating to the empowerment of individuals to make such claims, and an external dimension relating to the design and availability of institutional mechanisms that are set up to hear these claims and adjudicate upon them. This theoretical perspective is then applied to one particular context to attain the required depth—namely, that of South Africa. The main institutional architecture of the South African democratic constitutional order relating to access to justice is outlined and the shortcomings thereof highlighted. The chapter attempts to provide concrete solutions to these problems as well as possible policy recommendations to enhance access to justice—some of these are drawn from the comparative experience of other Global South countries such as Colombia and India. Ultimately, the chapter links theory and practice: it utilizes a theoretical perspective to generate practical recommendations for enhancing access to justice for all in South Africa.

(Global) Constitutionalism and the Geopolitics of Knowledge

Is (global) constitutionalism epistemologically colonized? What does epistemic coloniality in (global) constitutionalism mean if one takes material conditions seriously? The point of departure of this chapter is what Walter Mignolo has called ‘the geopolitics of knowledge’: the observation that knowledge is situated within the particular geopolitical context from which it emerges and travels. It reveals not only epistemological origins but also the colonizing properties of ideas. In order to inquire into the geopolitics of the knowledge of global constitutionalism, the chapter first considers the coloniality of (domestic) constitutionalism and then sets out the influence of three generations of thinkers who aimed to globalize constitutionalism. The combination of intellectual history (drawing on Quinn Slobodian’s important work on the so-called ‘ordo-globalists’) and structural analysis (drawing on a Marxist tradition) is intended to provide an insight into the ingrained biases at the origins of (global) constitutionalism, and how these have travelled. These biases are shown to be central to inequalities that characterize the legal-institutional neoliberal order.

The Southern Turn in Comparative Constitutional Law

This introductory chapter argues for and conceptualizes a ‘Southern turn’ in comparative constitutional law. It takes stock of existing scholarship on the Global South and comparative constitutional law, situates the volume in this context, and seeks to move the debate forward. Its argument has three elements: the first is that the ‘Global South’ has already become a term used productively in various disciplines and in legal scholarship, even though in very different and sometimes under-theorized ways. Secondly, we argue that the ‘Global South’ is a useful concept to capture and understand a constitutional experience that is distinct from, and at the same time deeply entangled with, constitutionalism in the Global North. Thirdly, we contend that the Southern turn implies a specific epistemic, methodological, and institutional sensitivity that has implications for comparative constitutional scholarship as a whole. This sensitivity embraces epistemic reflexivity, methodological pluralism, as well as institutional diversification, collaboration, and ‘slow comparison’ and thus points the way towards an understanding of the discipline as ‘world comparative law’.

Same Bed, Different Dreams

This chapter analyses legality in hybrid regimes in Asia, which refers to countries categorized by varying strands of literature as ‘semi-democracy’, ‘competitive authoritarianism’, or ‘electoral authoritarian regimes’. This type of hybrid regime is common in Asia and very much a product of the contemporary world where the functionalities of legality and constitutional law are recognized by not only democratic countries but also authoritarian states. This essay seeks to answer three questions: first, why would authoritarians accept the idea of legality and what exactly do they mean by legality? Second, what makes authoritarian legality functional and stable? Third, what are the factors that provide the conditions for the transition towards a more liberal and democratic system? The experience of East Asian hybrid regimes shows that authoritarian legality and constitutionalism is not only possible but actually exists in many Asian states associated with reputed prosperity. That being said, various limitations exist. It is also theoretically problematic and empirically wrong to assume a linear theory about the trajectory of legality development moving towards democracy.

Transformative Constitutionalism as a Model for Africa?

While the idea of transformative constitutionalism first arose in the context of South Africa’s democratic transition to address questions related to the future of private law and old order legal personnel and institutions in the new constitutional dispensation, it has gained a much broader meaning both in South Africa and around the globe in the new millennium. This contribution reflects on the multiple meanings, uses, and criticisms of transformative constitutionalism and its suitability as a model for African constitutionalism more generally. Given contemporary challenges to constitutionalism, it argues that ensuring the continued functioning of democracy is as significant a dimension of transformative constitutionalism as the enforcement of social rights. It ultimately suggests that we should conceive of transformative constitutionalism as providing a conceptual arena in which to develop a socio-legal understanding of how any specific constitutional order emerges and use it as a yardstick to judge and critique the role of constitutions in advancing the cause of social justice.