Carlos Bernal (Constitutional Court, Colombia): Is Transformative Constitutionalism an Illusion for the Global South?

The International Dialogues in Constitutional Law event resumed its activities in the second semester of 2018 with the lecture “Is Transformative Constitutionalism an Illusion for the Global South?”, presented by the judge of the Colombian Constitutional Court Carlos Bernal Pulido. In this conference, the Minister presented the path for Courts’ transformative action to promote a representative, deliberative and participatory democracy.

According to Bernal, there is a conceptual uncertainty as to what “transformative constitutionalism” is, especially given the lack of clarity as to the objectives to be achieved. As a response, he identifies two purposes: reducing extreme poverty and reducing inequality. The performance of the Courts in the constitutional jurisdiction should, then, be guided by these principles.

Substantially, Bernal points out that non-interventional Courts do not help in achieving these goals. On the other hand, interventionist Courts are more likely to be discredited due to the lack of results, to the creation of perverse incentives and to the destruction of wealth due to the prioritization of the interest of small groups in detriment of common interests.

Thus, the path defended by the judge is intermediary: an active Court in constitutional jurisdiction, but guided by proportional and deliberative constitutionalism. In this sense, the judicial performance should favour the dialogue between those involved and consider the financial consequences of the cause, avoiding the attribution of unenforceable charges.

Report by Ana Clara Pamplona, translated by Natalia Langenegger. Photos by Artur Pericles Lima Monteiro.

Christopher Mbazira (Makerere University, Uganda): Transnational judicial dialogues and the enforcement of socioeconomic rights

On October 17, 2018, our guest was Prof. Dr. Christopher Mbazira, professor at Makerere University in Uganda. From the analysis of constitutional jurisdiction and constitutionalism in three African countries (South Africa, Kenya and Uganda), Mbazira identifies the existence of a transnational judicial dialogue. This dialogue is mainly expressed by direct interaction between judges from different countries which voluntary quote votes from other Courts.

Mbazira argues that the best explanation for this phenomenon is that judges have progressively increased the amount of times foreign Court’s decisions are quoted because they identify themselves as peers. Thus, organically, they have come to recognize similarities in the agenda pursued, in the methods used and in the purposes sought by the institutional structure in which they belong.

To illustrate this relationship, he presented a set of concrete examples. In this movement, South Africa emerges as the Country leading the changes and inspiring other countries to emulate them, as a leader of the pack. However, in recent times, Kenya has also emerged as a possible influence for other Courts in advancing rights. This was mainly due to the adoption of the new constitutional text, also influenced by other Countries. Among other provisions, this constitution establishes that State must prove the absence of financial resources to finance public policies.

After professor’s Mbazira’s presentation, he answered questions presented by the audience, among which (i) about the possibility of naming the phenomenon as dialogue if no actual exchanges between Courts occur, (ii) related to the evidence of the existence an effective influence, and (iii) resulted in an invitation to conduct a normative reflection on the consequences of this phenomenon.

Written by Ana Laura Pereira Barbosa. Translation by Natalia Langenegger. Photos by Artur Pericles Lima Monteiro and Fernanda Mascarenhas de Souza.

Gerald Rosenberg (University of Chicago, USA), The Hollow Hope: Can Courts Bring about Progressive Social Change?

On 18 September 2017, we received Gerald Rosenberg, from the University of Chicago and author of the influential book “The Hollow Hope: Can Courts Bring About Social Change?”.
Professor Rosenberg began questioning how courts can promote progressive social reforms. He argued that there are three major constrains for this: the limited nature of constitutional rights, the hesitation of courts to make decisions that do not have broad support from the Legislative and the Executive and the Judiciary’s lack of power of implementation of its decisions. However, as Rosenberg contended, courts can still be effective producers of social reforms if there are ample precedent of change, substantial support for changes both in the Legislative and Executive branches and incentives to comply with judicial decisions.
Professor Rosenberg concluded that judicial strategies to promote social change will make little difference unless courts become partners of political branches that intend to implement reforms.

Leif Wenar (King’s College London, UK), Blood Oil: Tyrants, Violence, and the Rules that Run the World

On 11 September 2017, we welcomed Professor Leif Wenar, from the King’s College London and author of the book “Blood Oil: Violence and the Rules that Run the World” (2016).
Professor Wenar presented different aspects of the modern debate on oil exploitation. He emphasised the “oil curse”, centred on the validity of the 17th century “might makes right” rule. That doctrine establishes that whoever can keep control of resource rich territories will get the right to sell off those same resources. The major implication of this rule, according to Professor Wenar, is that it authorizes the acquisition of oil from countries that use force to control its natural resources.
Professor Wenar further argued that at least in a level of principle, the world has already agreed on a better rule to govern oil global trade: “a country belongs to its people”. This rule establishes that all natural resources belong to the people; that is, if any government sells oil without people’s consent, it would be selling stolen goods. The importance of this new rule, according to Professor Wenar, is that it makes the power of oil accountable. The oil curse is a problem of power and only the people can check this power.

Ralf Poscher (Universität Freiburg, Germany): Codifying the right of assembly

Our International Dialogues on Constitutional Law hosted Ralf Poscher (Universität Freiburg). He talked about freedom of assembly, drawing from his experience in devising a ‘master code’ for freedom of assembly in Germany.
Poscher started his talk by emphasising what he thinks is the central aspect of the freedom of assembly, the physical presence of demonstrators, who ‘stand with their bodies’ for the ideas they advocate, he said. This makes protests a special kind of expression, different from writing an op-ed piece for a newspaper, for instance. It is precisely because a demonstrator’s body is exposed that he is afforded the special protection of the freedom of assembly.
Regulation must have this aspect above all, Poscher argued: while some restrictions required to prevent harm should be admitted, those are second-level concerns. The primary goal of regulation should be to “enable and facilitate the exercise of the right of assembly”.
Law should then respect the autonomy of the assembly: organisers should be free to pick the purpose, the time, the route and generally how to organise it. The master code consequently admits assemblies that have no leaders or formal organisation even, although it does provide for a kind of assembly which is directed by a leader, who is given power to take decisions which are legally binding upon demonstrators. The police, in that case, are only allowed to interfere with the assembly after calling upon the leader of the assembly to address an issue (by removing a demonstrator engaging in disorderly conduct, for instance) by themselves.
The master code also includes a mandante that organisers give the police 48h notice of the assembly, or face a misdemeanour charge. This is mitigated for spontaneous assemblies and assemblies called with less than 48h before the time of the assembly.
The police are only allowed to interfere with the assembly when there is a ‘imminent, concrete risk to public safety’, Poscher explained. This means that abstract speculations and even concrete risk of minor illegal behaviour do not sanction police interference. And the police are only allowed to disband an assembly when it deems there is no alternative to preventing harm. Only following this formal decision by the police, and after demonstrators are warned and given appropriate notice, are then the police allowed the proceed under ‘regular police law’.
Demonstrators are also generally entitled to wear masks and protective gear. Those might be needed so that individuals are able to exercise their freedom of assembly, wearing masks to avoid retaliation for joining a protest, and protective gear to protect against those who would explore their bodily exposition to harm them. Conceding that those may also be use to facilitate illegal conduct, the master code provides that the police may order demonstrators to remove those, again in a formal decision which may be challenged in court afterwards.
Similar rules apply to assemblies in privately-held public places: if those are used for transit as streets and parks are, demonstrators are not required to secure consent of the owner.
Poscher finally highlighted that while those provisions are all important in preserving freedom of assembly, a democratic culture in policing is just as important; police, he insisted, must have a clear view of their professional responsibility to enable and facilitate assemblies, instead of limiting or managing them.

Daniel Bonilla (Los Andes University, Colombia): Constitutionalism in the Global South

On September 28, Daniel Bonilla, professor at the Los Andes University (Colombia), was the guest of the seventh meeting of the International Dialogues in Constitutional Law in 2016. In his lecture, entitled Constitutionalism in the Global South, Bonilla presented some of the ideas of the influential book he edited, Constitutionalism of the Global South: The Activist Tribunals of India, South Africa and Colombia (Cambridge University Press).

His arguments challenge both the way the legal scholarship of the Global North takes (or does not take) into account what is written by authors of the Global South, and the way how academics of the Global South itself sometimes uncritically absorb what is published in the North. Combining epistemological critique with political reflection, his reasoning unveils the power structures that normalize the dynamics of how we think about constitutional law and law as a whole. His ideas allow us to rethink how we conduct research in constitutional law, challenging whether the mainstream canons of the North are really suited to deal with the challenges peculiar to the Global South.

Iddo Porat (College of Law and Business), Constitutionalism without Constitution: the Israeli Case

After the winter break, the International Dialogues in Constitutional Law series resumed with a lecture by Iddo Porat, from the College of Law and Business, Israel. Author of one of the most important books about proportionality and several articles published in international journals about central themes of contemporary constitutionalism, Porat approached the controversy around the existence of a written constitution in Israel. Based on an analysis of the Israeli constitutional history since its foundation in 1948, and giving special attention to the constitutional revolution of the 1990s, he argued that the Israeli Supreme Court, under the leadership of its most influential Justice, Aharon Barak, carried out a platonic conception of the constitutional text in order to bridge the gap between the partial and fragmented Basic Laws enacted throughout the decades and the ideal of a full-fledged constitution holding a bill of rights. That process arguably transcended mere constitutional interpretation and entered into the realm of constitutional creation and building.

Jackie Dugard: The Constitutional Court of South Africa

On June 1st took place the last round of the International Dialogues in Constitutional Law series. The group Constituição, Política e Instituições discussed “The Constitutional Court of South Africa: An Institutional Voice for the Poor?,” featuring Professor Jackie Dugard, from the University of the Witwatersrand. Dugard presented the functioning of the South African constitutional court in regards to the adjudication of social rights and her criticism on the current framework, focused on five features: (i) accessibility, (ii) the reasonableness approach and the programmatic role of the Court’s decisions, (iii) the failure to “take poverty seriously”, (iv) the insufficient scrutiny on evidence and budgets presented by the government when the Court analyzes a social program, and (v) the lack of supervisory jurisdiction.

On Dugard’s view, these problems unveil challenges the South African Court has yet to tackle and that must be addressed in the short-run, in order for the system to preserve its utility and ability to affect and promote social change.

After the initial exposition, several issues were discussed, including the efforts made by the Court to not only promote social rights in case law, but to effectively select justices with a more varied background to its benches.

Alejandro Chehtman: The challenge of drones

On May 4th, the series International Dialogues in Constitutional Law hosted Professor Alejandro Chehtman, from the Universidad Torcuato di Tella (Argentina), in order to discuss “The challenge of drones: proportionality and the use of force”. In his research, Chehtman analized if the use of drones in contemporary armed conflicts would be radically asymmetrical, in light of the principles of proportionality and necessity. Based on extensive investigations of the data of such conflicts in the years between 2007 and 2013, he observed that drones are not as precise or sufficiently discriminatory in order to morally allow for the use of force in such circumstances, nor have they been successful in containing threats or preventing damages. Therefore, he concluded that though not in direct violation of the principle of necessity or ultima ratio, drones violate the ad bellum principle of proportionality.

Marco Goldoni (University of Glasgow), The three waves of political constitutionalism

The second meeting from the International Dialogues in Constitutional Law series discussed political constitutionalism

What is a political constitution? It was with this initial consideration that Marco Goldoni opened his speech on April 12th, in which he addressed one of the most important public law debates in the English tradition: the political element of the constitutional norm. Goldoni reconstructed the historical framework of political constitutionalism by dividing it into three waves, in order to demonstrate the importance of the concept of a political constitution reemerging in the third wave.

The political constitution concept comprehends an internal relationship between the constitution and society, an intertwining between the constitution and the social order, which would allow a wider framework to understand its legal aspects. This conception impacts on the way in which adjudication of individual rights is carried out today.

According to Goldoni, after the first wave (which emphasized the social conflicts), the second offered a more normative conception of constitutionalism, which ended treating the political process as a congressional process, therefore creating strong limitations. Why reconstruct constitutional politics so stringently, without taking into consideration the constituent power, which is the precise moment when politics has its greater creative potential? In the author’s view, the great gap of these theories is their failure to understand conflict as an inherent human condition.

For Goldoni, it is necessary to understand the grammar of political constitutionalism. Therefore, though incipient, the third wave of political constitutionalism has already started, a wave that recuperates the sense of politics from the first wave and brings social movements back to the center of the discussion. This new theoretical approach points towards institutional possibilities which the constitutionalists didn’t agreed yet, such as discussions regarding actors, positions and social representation, such as discussions regarding actors, positions and social representation.

After the exposition, several questions emerged for the debate: the importance of a bill of rights, the role of parliament, the institutional organization, the best way to protect rights, the possibilities for judicial review, as well as the role of the courts in promoting social demands. Highlighting the great difference between the Brazilian and European contexts, Goldoni stated the need of a more sensible and sociological view of the constitutionalists academics, which brings about the intermingling between the constitution and the ever-changing social relations.