Albie Sachs (Constitutional Court of South Africa), The Strange Alchemy of Life and Law

On November 3, 2016, Albie Sachs, former judge of the Constitutional Court of South Africa, held the closing lecture of the International Dialogues in Constitutional Law series in 2016. After his lecture, there was also a signing session of the Brazilian edition of Sachs’ autobiographical book, The Strange Alchemy of Life and Law (translated into Portuguese by Saul Tourinho Leal).
Following the narrative of his book, in his lecture Sachs referred to personal events, both as a judge of the Constitutional Court and as a political activist in defense of public liberties.
According to Sachs, an important function of a constitution is to ensure the coexistence of groups with different ideologies, religions, sexual orientation etc. He argued that, for this to happen, it is necessary to promote equality in the recognition of rights. Sachs presented his role in the decision of the Fourie case on same-sex marriage in South Africa. He also addressed the issue of political reconciliation in South Africa in the post-apartheid period, also through a personal narrative involving the perpetrator of the attack he had been a victim while still in exile in Mozambique.

The participation of Albie Sachs in our series of debates was supported by Saul Tourinho Leal and the AJD – Judges for Democracy Association.



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.

Julio Rios-Figueroa debates the role of constitutional courts in Latin America

On April 20th, the series International Dialogues in Constitutional Law hosted Julio Rios-Figueroa, political scientist specialized in constitutional courts and Professor of the Centro de Investigación y Docencia Económicas (CIDE, Mexico). Rios-Figueroa approached the topic of “Constitutional courts and democratic conflict solving”, based on his recently published book by the Cambridge University Press. In his research, he discusses the role of constitutional courts in the legal understandings of civilian-military relationships within the democratic governments of Colombia, Mexico, and Peru. Based on extensive empirical evidence, he argues that when constitutional courts are independent, accessible, and have broad constitutional review powers, they better fulfill their role as ‘mediators’ of the confrontational governmental relationships with the armed forces. Unlike ‘arbitrators’, that solve distributive conflicts and generate winners and losers, ‘mediators’ are more effective in stabilizing those relations.

Amy Allen (Penn State University), Utopia and Feminism

First meeting of the 2016 International Dialogues on Constitutional Law series discusses gender relations and empowerment

In the first event of the 2016 International Dialogues on Constitutional Law series, which took place on March 10th, the Group “Constitution, Politics and Institutions” received Amy Allen, Professor of Philosophy and of Gender and Sexuality Studies at Penn State University.

In the lecture “Utopia and Feminism”, Allen presented her thoughts on power relations, emancipation and feminism in contemporary society, which result from the tense and unusual conciliation between two theoretical references: the critical theory model of the Frankfurt School and the concepts of Michel Foucault and Judith Butler. Allen characterizes her theoretical project as a productive tension that allows refining the diagnosis of how gender relations operate, shedding light on its complexities, helping to understand the intersections between gender and other social markers of difference. Furthermore, the project aims at conceiving the idea of emancipation without resorting to the idea of utopia, which would presuppose a notion of progressive and Eurocentric historical development.

Following her opening presentation, different topics were discussed: the relation between Allen’s concept of emancipation, social struggles and their political motivations; electoral gender quotas; male role in feminism struggle; the International Human Rights Law. How to identify power relations and gender domination empirically was also a matter of concern. Amy Allen concluded the debate by stating that her conception of emancipation, inspired by post-colonial feminists, allows for the questioning of our own narratives of progress and modernity. Thus, her views would provide deeper self-reflection, epistemological humility and solidarity.