In a groundbreaking contribution to our understanding of the relation between constitutions and social change in the Global South, the Pretoria University Law Press (Pulp) has just published an original book on the highest courts of Brazil, India and South Africa (BISA countries). The book Transformative Constitutionalism: Comparing the Apex Courts of Brazil, India and South Africa, published in December 2013 and now fully available online, is the first scholarly account on how the BISA highest courts manage to implement their respective transformative constitutions, including a critical view on instances where those courts fall short of it.
The book’s originality lies in the critical yet multi-faceted analyses it brings. Transformative Constitutionalism offers a horizontal look at a wide range of pressing constitutional issues in the BISA countries, including gender, sexual minorities, religion, health, land, citizenship, social movements and the use of international and foreign law by the highest courts. Such wide range of issues, combined with the first attempt in English to include an extensive comparative analysis of the Brazilian constitutional experience, makes this book a vital publication for constitutional scholars, human rights activists, lawyers and judges of those BISA countries and beyond.
Let alone being the first comprehensive study of this nature about BISA constitutions, Transformative Constitutionalism also brings three additional contributions. First, the book conveys a critical overview of the three BISA constitutions and their highest courts, describing for the international audience their main features, potentials and shortcomings. Second, the book debates how constitutional scholars do comparative constitutional work and what are its limits. Third, finally, the book ends with the insightful reflections of Justice ZM Yacoob, who served as a judge of the South African Constitutional Court from 1998 to 2013.
Apart from its multi-faceted scope, the overall theme of the book is transformative constitutionalism, an emerging topic in constitutional and human rights circles. In fact, the book opens with a critical exchange on different views regarding transformative constitutionalism. “This book represents an effort by human rights academics and activists to consider the constitutions of Brazil, India and South Africa as fundamental instruments in the promotion of rights and the consolidation of democracy in these countries. This transformational ideal makes this publication essential reading,” noted Juana Kweitel, program director at Conectas Human Rights. Conectas is one of the non-government organizations that contributed extensively to this publication, along with academics and activists from BISA countries.
Such an ambitious book is the product of a collaborative project. The 28-chapter publication results from the result of the research project “Justiciability of Human Rights – a comparative analysis: South Africa, Brazil and India”, which was coordinated by Conectas and involved a judge, academics and human rights defenders from these three countries. The team was coordinated by three of the most well respected scholars in each BISA country: in South Africa by Professor Frans Viljoen, in Brazil by Professor Oscar Vilhena Vieira and in India by Professor Upendra Baxi.
In Oscar Vilhena's opinion, the research result was a set of comprehensive and informative texts about the solutions found among the three analyzed countries on the way in which their supreme courts legally face social, political, and moral problems of high complexity. "The three constitutions were adopted at a time when the country came out of periods characterized by authoritarian rule, colonialism or apartheid, respectively. These documents not only faced the challenge of limiting the power of the State, but adopted ambitious challenges to change society. Not only to react to the recent past, characterized by the movements mentioned above, but to fight more historical aspects entrenched in inequality and injustice," he explained in the launch of the book at the FGV's São Paulo Law School on March 14, 2014.
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