Article by Sir Sydney Kentridge
No one familiar with the writings of Sir Basil Markesinis needs to be persuaded of the value of the comparative approach in the judicial process. But comparative law in constitutional adjudication raises some peculiar issues. I shall try to illustrate them, particularly by reference to bill of rights jurisprudence in South Africa, following its post-apartheid emergence in 1994 as a constitutional state.
Why should the use of comparative law in constitutional cases differ from its use in other branches of law? Foreign comparisons may inform a national court of possible solutions to the problem before it and equally of the difficulties which might attend any solution. But comparison with law and practice of other jurisdictions is particularly appropriate in relation to some aspects of constitutional adjudication. I limit this to “some aspects” because constitutional questions arising from the relationship between the different branches of government can seldom be the subject of useful international comparisons; the answers to such questions are to be found in the specific political arrangements embodied in the national constitution. While “separation of powers” is an international catchphrase, it means very different things in different countries. So the aspect of constitutional adjudication which I shall consider is the interpretation and application of human rights guarantees. There are a number of obvious reasons why, in this field, the comparative approach seems appropriate.
The first is the family relationship between modern domestic bills or charters of rights. The common ancestor is the Universal Declaration of Human Rights with descent through such instruments as the European Convention on Human Rights and the International Covenant on Civil and Political Rights. The Universal Declaration itself had drawn heavily on the Bill of Rights in the Constitution of the United States. There have also been other discernible borrowings: South Africa's new constitution took from Canada the two-stage process of adjudication of alleged infringements of rights and took from Germany the emphasis on human dignity as a fundamental right.
Secondly, the use of comparative materials is virtually inescapable in countries introducing a justiciable bill of rights for the first time, such as Hong Kong in 1990, South Africa in 1993, and the United Kingdom in 1998. Many of the concepts found in typical bills of rights are broadly stated, such as the right to life or freedom from cruel or inhuman punishment or treatment. It is not easy to find objective standards by which to define the reach of these rights and an entirely subjective approach is hardly a feasible alternative. As an American judge once warned, a constitution does not mean whatever we want it to mean. Comparative jurisprudence enables the judge to test his or her value judgment against the judgments of other courts that have grappled with similar provisions. Moreover, some bills of rights virtually mandate some degree of comparative approach. Thus, articles 9, 10, and 11 of the European Convention permit certain limitations on the rights therein stated, provided that they are “necessary in a democratic society.” The South African Constitution permits a limited derogation from the Bill of Rights “to the extent . . . [that is] reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.” Section 1 of the Canadian Charter of Rights has similar language as do many of the post-independence constitutions of the British Commonwealth. At least a glance at other open and democratic societies can hardly be avoided.
About the Author
Sir Sydney Kentridge. Q.C., former Judge of the Constitutional Court of South Africa.
Citation
80 Tul. L. Rev. 245 (2005)