Search results for: constitutionalism

Authors: Stephen Clear

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Brexit, the relationship between devolved administrations, and Westminster, as well as recent Supreme Court judgments, all evidence that traditional paradigms in the divide between legal and political constitutionalism are changing within the United Kingdom. Whilst not mutually exclusive concepts, these latest constitutional developments suggest that the UK is about to embark upon radical constitutional reform over the course of the next decade. Such will systematically redefine the roles and relationships of each of the three arms of the State. In mapping these three latest events, this paper starts by defining constitutionalism as a jurisprudential concept, from the Age of Enlightenment, through to its present day manifestations in 2020. Such thereafter explains why the UK is seeking to move further away from political constitutionalism, and instead towards an increased reliance on newly defined laws and rules, particularly given that the UK now has a government with a stronger working majority following the general election results in 2019. In doing so, this paper concludes by commenting upon recent concerns surrounding the potential for the politicization of the judiciary within the United Kingdom, at a time when the UK Prime Minister is seeking to redefine the country’s constitutional rulebook.

Keywords: United Kingdom, Brexit, constitutionalism, law, politics, constitutional reform, separation of powers

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Authors: Onyinyechi Lilian Uche

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Limiting arbitrariness and political power in governance is expressed in the concept of constitutionalism. Constitutionalism acknowledges the necessity for government but insists upon a limitation being placed upon its powers. It is therefore clear that the essence of constitutionalism is obviation of arbitrariness in governance and maximisation of liberty with adequate and expedient restraint on government. The doctrine of separation of powers accompanied by a system of checks and balances in Nigeria like many other African countries is marked by elements of ‘personal government’ and this has raised questions about whether the apparent separation of powers provided for in the Nigerian Constitution is not just a euphemism for the hegemony of the executive over the other two arms of government; the legislature and the judiciary. Another question raised in the article is whether the doctrine is merely an abstract philosophical inheritance that lacks both content and relevance to the realities of the country and region today? The current happenings in Nigeria and most African countries such as the flagrant disregard of court orders by the Executive, indicate clearly that the concept constitutionalism ordinarily goes beyond mere form and strikes at the substance of a constitution. It, therefore, involves a consideration of whether there are provisions in the constitution which limit arbitrariness in the exercise of political powers by providing checks and balances upon such exercise. These questions underscore the need for Africa to craft its own understanding of the separation of powers between the arms of government in furtherance of good governance as it has been seen that it is possible to have a constitution in place which may just be a mere statement of unenforceable ‘rights’ or may be bereft of provisions guaranteeing liberty or adequate and necessary restraint on exercise of government. This paper seeks to expatiate on the importance of the nexus between constitutionalism and democratic process and a juxtaposition of practices between Nigeria and South Africa. The article notes that an abstract analysis of constitutionalism without recourse to the democratic process is meaningless and also analyses the structure of government of some selected African countries. These are examined the extent to which the doctrine operates within the arms of government and concludes that it should not just be regarded as a general constitutional principle but made rigid or perhaps effective and binding through law and institutional reforms.

Keywords: checks and balances, constitutionalism, democratic process, separation of power

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Authors: Amy Buckley

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The purpose of this article is to assess the problem of constitutional hyper-rigidity to consider how it and the associated tensions with democratic constitutionalism can be diminished by means of using digital democratic technologies. In other words, this article examines how digital technologies can assist us in ensuring fidelity to the will of the constituent power without paying the price of hyper-rigidity. In doing so, it is impossible to ignore that digital strategies can also harm democracy through, for example, manipulation, hacking, ‘fake news,’ and the like. This article considers the tension between constitutional hyper-rigidity and democratic constitutionalism and the relevant strengths and weaknesses of digital democratic strategies before undertaking a case study on Canadian e-consultations and drawing its conclusions. This article observes democratic constitutionalism through the lens of the theory of deliberative democracy to suggest that the application of digital strategies can, notwithstanding their pitfalls, improve a constituency’s amendment culture and, thus, diminish constitutional hyper-rigidity. Constitutional hyper-rigidity is not a new or underexplored concept. At a high level, a constitution can be said to be ‘hyper-rigid’ when its formal amendment procedure is so difficult to enact that it does not take place or is limited in its application. This article claims that hyper-rigidity is one problem with ordinary constitutionalism that fails to satisfy the principled requirements of democratic constitutionalism. Given the rise and development of technology that has taken place since the Digital Revolution, there has been a significant expansion in the possibility for digital democratic strategies to overcome the democratic constitutionalism failures resulting from constitutional hyper-rigidity. Typically, these strategies have included, inter alia, e- consultations, e-voting systems, and online polling forums, all of which significantly improve the ability of politicians and judges to directly obtain the opinion of constituents on any number of matters. This article expands on the application of these strategies through its Canadian e-consultation case study and presents them as a solution to poor amendment culture and, consequently, constitutional hyper-rigidity. Hyper-rigidity is a common descriptor of many written and unwritten constitutions, including the United States, Australian, and Canadian constitutions as just some examples. This article undertakes a case study on Canada, in particular, as it is a jurisdiction less commonly cited in academic literature generally concerned with hyper-rigidity and because Canada has to some extent, championed the use of e-consultations. In Part I of this article, I identify the problem, being that the consequence of constitutional hyper-rigidity is in tension with the principles of democratic constitutionalism. In Part II, I identify and explore a potential solution, the implementation of digital democratic strategies as a means of reducing constitutional hyper-rigidity. In Part III, I explore Canada’s e-consultations as a case study for assessing whether digital democratic strategies do, in fact, improve a constituency’s amendment culture thus reducing constitutional hyper-rigidity and the associated tension that arises with the principles of democratic constitutionalism. The idea is to run a case study and then assess whether I can generalise the conclusions.

Keywords: constitutional hyper-rigidity, digital democracy, deliberative democracy, democratic constitutionalism

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Authors: Abderrahim El Maslouhi

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The paper aims to analyze an often-overlooked dimension of global constitutionalism, which is the rise of the regulatory state and its impact on parliamentary dynamics in transition regimes. In contrast to Majone’s technocratic vision of convergence towards a single regulatory system based on competence and efficiency, national transpositions of regulatory governance and, in general, the relationship to global standards primarily depend upon a number of distinctive parameters. These include policy formation process, speed of change, depth of parliamentary tradition and greater or lesser vulnerability to the normative conditionality of donors, interstate groupings and transnational regulatory bodies. Based on a comparison between three post-Arab Spring countries -Morocco, Tunisia, and Egypt, whose constitutions have undergone substantive review in the period 2011-2014- and some European Union state members, the paper intends, first, to assess the degree of permeability to global constitutionalism in different contexts. A noteworthy divide emerges from this comparison. Whereas European constitutions still seem impervious to the lexicon of global constitutionalism, the influence of the latter is obvious in the recently drafted constitutions in Morocco, Tunisia, and Egypt. This is evidenced by their reference to notions such as ‘governance’, ‘regulators’, ‘accountability’, ‘transparency’, ‘civil society’, and ‘participatory democracy’. Second, the study will provide a contextual account of internal and external rationales underlying the constitutionalization of regulatory governance in the cases examined. Unlike European constitutionalism, where parliamentarism and the tradition of representative government function as a structural mechanism that moderates the de-parliamentarization effect induced by global constitutionalism, Arab constitutional transitions have led to a paradoxical situation; contrary to the public demands for further parliamentarization, the 2011 constitution-makers have opted for a de-parliamentarization pattern. This is particularly reflected in the procedures established by constitutions and regular legislation, to handle the interaction between lawmakers and regulatory bodies. Once the ‘constitutional’ and ‘independent’ nature of these agencies is formally endorsed, the birth of these ‘fourth power’ entities, which are neither elected nor directly responsible to elected officials, will raise the question of their accountability. Third, the paper shows that, even in the three selected countries, the de-parliamentarization intensity is significantly variable. By contrast to the radical stance of the Moroccan and Egyptian constituents who have shown greater concern to shield regulatory bodies from legislatures’ scrutiny, the Tunisian case indicates a certain tendency to provide lawmakers with some essential control instruments (e. g. exclusive appointment power, adversarial discussion of regulators’ annual reports, dismissal power, later held unconstitutional). In sum, the comparison reveals that the transposition of the regulatory state model and, more generally, sensitivity to the legal implications of global conditionality essentially relies on the evolution of real-world power relations at both national and international levels.

Keywords: Arab legislatures, de-parliamentarization, global constitutionalism, normative conditionality, regulatory state

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Authors: Zsuzsanna Fejes

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The aim of this paper is to provide an overview of the legal history of constitutionalism in Hungary, in focus of the democratic transitions in 1989-1990, describing the historical and political background of the changes and presenting the main and most important features of the new democracy, and institutional and legal orders. In Hungary the evolved political, economic and moral crisis prior to the constitutional years 2010-11 had been such a constitutional moment, which led to an opportune and unavoidable change at the same time. The Hungarian constitutional power intended to adopt a new constitution, which was competent to create a common constitutional identity and to express a national unity. The Hungarian Parliament on 18th April 2011 passed the New Fundamental Law. The new Fundamental Law rich in national values meant a new challenge for the academics, lawyers, and political scientists. Not only the classical political science, but also the constitutional law and theory have to struggle with the interpretation of the new declarations about national constitutional values in the Fundamental Law. The main features and structure of the new Fundamental Law will be analysed, and given a detailed interpretation of the Preamble as a declaration of constitutional values. During the examination of the Preamble shall be cleared up the components of Hungarian statehood and national unity, individual and common human rights, the practical and theoretical demand on national sovereignty, and the content and possibilities for the interpretation of the achievements of the historical Constitution. These scopes of problems will be presented during the examination of the text of National Avowal, as a preamble of the Fundamental Law. It is examined whether the Fundamental Law itself could be suitable and sufficient means to citizens of Hungary to express the ideas therein as their own, it will be analysed how could the national and European common traditions, values and principles stated in the Fundamental Law mean maintenance in Hungary’s participation in the European integration.

Keywords: common constitutional values, constitutionalism, national identity, national sovereignty, national unity, statehood

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Authors: Ana Neves

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The European Union’s multi-level constitutionalism is grounded in an intricate network of vertical and horizontal legal relationships among different levels and types of public authorities. In a very significant way since the 2008 crisis, evolving institutional arrangements and institutional dynamics in the European Union have been progressively impacting Member States and the terms under which national public authorities are organised, interact and exercise their powers. This impact occurs in both macro and micro dimensions. Several examples are relevant here, such as the involvement of national Parliaments in the activities of the European Union, the enhanced integration of public administrations, the side effects of the Council framework decision on the European Arrest Warrant, the European Union Justice Scoreboard, the protection of whistle-blowers regulation, the enhanced cooperation on the establishment of the European Public Prosecutor’s Office, the regime for the protection of the Union budget and the European Rule of Law Mechanism. A common trend or denominator underlies the deepening of institutional interdependence and the increased interactions between the European Union, Member States, and public authorities at different levels. This seems to be conditionality as a general principle. The European multi-level constitutionalism must be considered in the light of this conditionality principle, which does not “imply a relationship of command and obedience”. Nevertheless, it might be more effective or be a very compelling principle. It is as if the extension of the shared rule is being accompanied by a contrapuntal dialogue. The different public authorities at various levels are being called to rethink and readjust themselves within a broader and more plural framework concerning understanding the limitation of power.

Keywords: european union -, multi-level hierarchy, conditionality, separation of powers

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Authors: Christine S. Veviani

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By observing the Brazilian labor reality, considered as degrading and oppressive, as well as responsible for creating obstacles to rights, this paper is aimed at demonstrating the obligatoriness of complying with the Constitution, as an effective instrument of the Democratic and Social State of Law established in the country since 1988, which identifies and determines the recognition of a single type of citizenship, as representation of equality, social inclusion and human dignity. To achieve this purpose, that is, to awake to a new culture focused on human respect / fundamental rights engraved in the Brazilian Constitution, doctrinal works, case law and labor courts (how they work) will be used as methodology. Thus, by concluding that there is a need for a change in behavior, by employers, intended to respect the Constitution, especially with regard to the concept and citizenship content if an attempt is made to achieve as a result few steps effectiveness of fundamental social rights protective of the Brazilian working class. Thus, by analyzing the Brazilian labor reality, the result is the employers' denial of full and single citizenship of workers, whose effects are directly related to the violation of rights, which leads to the conclusion that there is a need for a change in the behavior regarding the respect for the Constitution, especially concerning the effectiveness of fundamental social rights, which protect the working class in Brazil.

Keywords: employment relationships, opposing citizenships, constitutionalism, capitalism

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Authors: Serges Djoyou Kamga, Gerard Emmanuel Kamdem Kamga

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Any serious constitutionalism entails a system of government characterised by the separation of powers between the executive, the legislature, and the judiciary. The latter is generally in charge of upholding the rule of law and the respect for human rights which are vital for the functioning of any democracy. Therefore, for the judiciary to play its role as a watchdog, it should be independent from other branches of government. The aim of this paper is to examine the independence of the judiciary in South Africa after 20 of democracy. Defining judicial independence as the courts’ ability ‘to decide cases on the basis of established law and the merits of the case, without interference from other political or governmental agents’, the paper examines the extent to which the South African judiciary is independent after twenty years of democracy. As part of assessing the independence of the judiciary, the paper begins by looking at the situation during apartheid, then proceeds with an examination of the post-apartheid legal order. It also examines the institutional independence of the judiciary by looking into its day to day activities which revolve around its self-governance, or administrative and financial independence. In addition, the paper assesses the judges’ individual independence by examining whether judicial appointment, security of tenure, judges’ remuneration and disciplinary actions and the removal of judges from office do not contain loopholes that can hinder judicial independence. Ultimately, the chapter argues that although the South African model of judicial independence is yet to be perfect, it is a good practice that can be emulated by other African countries.

Keywords: judical independence, South Africa, democracy, separation of powers

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Authors: Yeukai Mupangavanhu

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The paper examines the concept of ubuntu and the extent to which it can play a role in ensuring fairness and justice in contractual relationships. Courts are expected to balance sanctity of contract and fairness. Public policy is currently a mechanism which is used by courts when balancing the above two competing interests. It, however, generally favours the freedom and sanctity of contract. The question which is addressed in this paper is whether the concept of ubuntu is an alternative mechanism that may be used to mitigate the sometimes harsh and unfair consequences of the doctrine of freedom and sanctity of contract. A comparative study and case analysis is the methodology that is used in this article. Unfairness in contracts is generally related to the problem of inequality in bargaining power underscored by deeply entrenched social and economic inequalities that are a consequence of apartheid and patriarchy. The transformative nature of the constitution demands the inclusion of African legal ideas and values in the legal order. There is a need for the harmonisation of western ideals which are based on the classical model of law of contract with relevant African principles. In order to attain a transformative legal order that promotes a societal transformation and enhances the lives of everyone courts cannot continue to frown upon African values. Ubuntu has the potential of steering the law of contract in a more equitable direction. The substantive rules of contract law undoubtedly need to be infused with the notion of ubuntu. The reconciliation of Western and African values is at the heart of legal transformation.

Keywords: fairness, sanctity of contract, contractual justice, transformative constitutionalism

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Authors: Ahmed Usman

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This paper attempts to examine the relevance of an Electoral Commission in the democratic process of governance in Nigeria. However, democratic system and governance present a clear indication of responsive and responsible governments. The idea of a government being responsive and responsible is based on the premise of conventional principles of democracy such as freedom of political, economic and social rights of and individual. More so, upholding of the Rule of Law based on the ground of constitutionalism is a clear manifestation of the democratic governance. The burdens of ascertaining theses democratic ethos rely solely on the constituted election management body known as Independent National Electoral Commission (INEC) for the case of Nigeria. This body is however, saddled with the responsibility of organizing and conducting periodic regular credible election known as free and fair election. The body also, is expected to be neutral, and independent to ensure fair treatment to all. It is on the basis of this fair treatment that credible leaders emerged. To this end, the paper examines the powers, functions and features of Independent National Electoral Commission. More so, the concepts of election and democracy have been operationalized. It is obvious that electoral process in Nigeria is marred with series of problems of which the paper identified and solutions were proffered towards credible, free and fair elections for sustainable democratic governance. In order to succinctly discuss and analyze the issues at stake, Structural Functional Analysis theory is adopted as a theoretical frame work for the paper.

Keywords: election, electoral commission, democracy, governance

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Authors: Shuaibu Umar Abdul

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The essence of any state as well as government is to ensure and advance the security of lives and property of its citizens. As a result, providing security in all spheres ranging from safeguarding the territorial integrity, security of lives and property of the citizens as well as economic emancipation have constitute the core objectives cum national interest of virtually all country’s foreign policy in the world. In view of this imperative above, Nigeria has enshrined in the early part of her 1999 constitution as amended, as its duty and responsibility as a state, to ensure security of lives and property of its citizens. Yet, it does not make any significant shift as it relates to the country’s fundamental security needs as exemplified by the current enormous security challenges that reduced the country’s fortune to the background in all ramifications. The study chooses realist paradigm as theoretical underpinning which emphasizes that exigency of the moment should always take priority in the pursuit of foreign policy. The study is historical, descriptive and narrative in method and character. Data for the study was sourced from secondary sources and analysed via content analysis. The study found out that it is lack of political will on the side of the government to guarantee a just and egalitarian society that will be of benefit to all citizens. This could be more appreciated when looking at the gaps between the theory in Nigerian foreign policy and the practice as exemplified by the action or inaction of the government to ensure security in the state. On this account, the study recommends that until the leaderships in Nigerian foreign policy recognized the need for political will and respect for constitutionalism to ensure security of its citizens and territory, otherwise achieving great Nigeria will remain an illusion.

Keywords: foreign policy, nation, national security, Nigeria, security

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Authors: Rohtash

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Academically, the concept of Justice in the literature is vast, and theories are voluminous and definitions are numerous but it is very difficult to define. Through the ages, justice has been evolving and developing reasoning that how individuals and communities do the right thing that is just and fair to all in that society. Justice is a relative and dynamic concept, not absolute one. It is different in different societies based on their morality and ethics. The idea of justice cannot arise from a single morality but interaction of competing moralities and contending perspectives. Justice is the conditional and circumstantial term. Therefore, justice takes different meanings in different contexts. Justice is the application of the Laws. It is a values-based concept in order to protect the rights and liberties of the people. It is a socially created concept that has no physical reality. It exists in society on the basis of the spirit of sharing by the communities and members of society. The conception of justice in society or among communities and individuals is based on their social coordination. It can be effective only when people’s judgments are based on collective reasoning. Their behavior is shaped by social values, norms and laws. People must accept, share and respect the set of principles for delivering justice. Thus justice can be a reasonable solution to conflicts and to coordinate behavior in society. The subject matter of distributive justice is the Public Good and societal resources that should be evenly distributed among the different sections of society on the principles developed and established by the State through legislation, public policy and Executive orders. The Socioeconomic transformation of the society is adopted by the constitution within the limit of its morality and gives a new dimension to transformative justice. Therefore, both Procedural and Transformative justice is part of Distributive justice. Distributive justice is purely an economic phenomenon. It concerns the allocation of resources among the communities and individuals. The subject matter of distributive justice is the distribution of rights, responsibilities, burdens and benefits in society on the basis of the capacity and capability of individuals.

Keywords: distributive justice, constitutionalism, institutionalism, constitutional morality

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Authors: Norbert Tribl

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European contemporary scientific public opinion considers the concept of constitutional identity as a highlighted issue. Some scholars interpret the matter as the manifestation of a conflict of Europe. Nevertheless, constitutional identity is a bridge between the Member States and the EU rather than a river that will wash away the achievements of the integration. In accordance with the opinion of the author, the main problem of constitutional identity in Europe is the undetermined nature: the exact concept of constitutional identity has not been defined until now. However, this should be the first step to understand and use identity as a legal institution. Having regard to this undetermined nature, the legal-theoretical examination of constitutional identity is the main purpose of this study. The concept of constitutional identity appears in the Anglo-Saxon legal systems by a different approach than in the supranational system of European Integration. While the interpretation of legal institutions in conformity with the constitution is understood under it, the European concept is applied when possible conflicts arise between the legal system of the European supranational space and certain provisions of the national constitutions of the member states. The European concept of constitutional identity intends to offer input in determining the nature of the relationship between the constitutional provisions of the member states and the legal acts of the EU integration. In the EU system of multilevel constitutionalism, a long-standing central debate on integration surrounds the conflict between EU legal acts and the constitutional provisions of the member states. In spite of the fact that the Court of Justice of the European Union stated in Costa v. E.N.E.L. that the member states cannot refer to the provisions of their respective national constitutions against the integration. Based on the experience of more than 50 years since the above decision, and also in light of the Treaty of Lisbon, we now can clearly see that EU law has itself identified an obligation for the EU to protect the fundamental constitutional features of the Member States under Article 4 (2) of Treaty on European Union, by respecting the national identities of member states. In other words, the European concept intends to offer input for the determination of the nature of the relationship between the constitutional provisions of the member states and the legal acts of the EU integration.

Keywords: constitutional identity, EU law, European Integration, supranationalism

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Authors: Mary Edokpa Fadal, Frances Agweda

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Considering the volatile and evolving nature of the political environment in the developing countries, it is important that the subject of effective leadership practices that focus on transformational and systematic political development and values be reviewed. If the attitude towards partisan politics and the played politics by political parties is relatively deviated from expected adherence to acceptance, safe, efficient and practical standard, the political parties will continue to struggle endlessly in an effort to maintain a system that works. The analysis is situated in the context of political parties and partisan political behavior in contemporary societies and developing nations. Recent research of empirical evidence shows that most of the political parties are more or less, not too active in playing their instrumental role in the political system, such as unifying, simplifying and stabilizing the political process. This is however traced to the problem of ethnic politics that have been dominated by tribalism. The rising clamor for political development needs re-structuring and correcting the abnormalities in the center of the polity to address the flaws in our political system. The paper argues that political parties and political actors are some of the vital instrument of attaining societal goals of democratic principles for peace and durability. Issues of ethnic and partisan politics are also discussed, as it relates to question pertaining to political ideologies. It is in the findings that this paper examines some of the issues that have been seen revolving the true practice of political parties and its activities towards the democratic trend of a society, that help to resolve questions surrounding the issues of politics and governance in developing countries. These issues are seen as an aberration that have characterized politics and political behavior especially in the aspect of transparency and fulfilling its purpose of existence. The paper argues that the transition of the developing nature of states largely depends on the political structures and party politics and the nature of constitutionalism following the democratic awakening. The paper concludes that politics and political behavior are all human factors that play a vital role in the development of contemporary societies. They drive the wheel of nations towards its goal attainment. This paper relies on documentary, primary sources of data collection and empirical analysis.

Keywords: development, ethnicity, partisan politics, political behavior, political parties

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Authors: Adriana Pereira Arteaga

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In many Latin American countries the transition towards legal pluralism - has developed as part of what is called Latin-American-Constitutionalism over the last thirty years. The aim of this paper is to discuss how legal pluralism in its current form in Bolivia may produce exclusion and violence. Legal sources and discourse analysis - as an approach to examine written language on discourse documentation- will be used to develop this paper. With the constitution of 2009, Bolivia was symbolically "re-founded" into a multi-nation state. This shift goes hand in hand with the "indigenista" and "decolonisation" ideologies developing since the early 20th century. Discourses based on these ideologies reflect the rejection of liberal and western premises on which the Bolivian republic was originally built after independence. According to the "indigenista" movements, the liberal nation-state generates institutions corresponding to a homogenous society. These liberal institutions not only ignore the Bolivian multi-nation reality, but also maintain the social structures originating form the colony times, based on prejudices against the indigenous. The described statements were elaborated through the image: the indigenous people humiliated by a cruel western system as highlighted by the constitution's preamble. This narrative had a considerable impact on the sensitivity of people and received great social support. Therefore the proposal for changing structures of the nation-state, is charged with an emancipatory message of restoring even the pre-Columbian order. An order at times romantically described as the perfect order. Legally this connotes a rejection of the positivistic national legal system based on individual rights and the promotion of constitutional recognition of indigenous justice administration. The pluralistic Constitution is supposed to promote tolerance and a peaceful coexistence among nations, so that the unity and integrity of the country could be maintained. In its current form, legal pluralism in Bolivia is justified on pre-existing rights contained for example in the International - Labour - Organization - Convention 169, but it is more developed on the described discursive constructions. Over time these discursive constructions created inconsistencies in terms of putting indigenous justice administration into practice: First, because legal pluralism has been more developed on level of political discourse, so a real interaction between the national and the indigenous jurisdiction cannot be observed. There are no clear coordination and cooperation mechanisms. Second, since the recently reformed constitution is based on deep sensitive experiences, little is said about the general legal principles on which a pluralistic administration of justice in Bolivia should be based. Third, basic rights, liberties, and constitutional guarantees are also affected by the antagonized image of the national justice administration. As a result, fundamental rights could be violated on a large scale because many indigenous justice administration practices run counter to these constitutional rules. These problems are not merely Bolivian but may also be encountered in other regional countries with similar backgrounds, like Ecuador.

Keywords: discourse, indigenous justice, legal pluralism, multi-nation

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Authors: Sricheta Chowdhury

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To require a woman to choose between her work and her personal life is the most acute form of discrimination that can be meted out against her. No woman should be given a choice to choose between her motherhood and her career at Bar, yet that is the most detrimental discrimination that has been happening in Indian Bar, which no one has questioned so far. The falling number of women in practice is a reality that isn’t garnering much attention given the sharp rise in women studying law but is not being able to continue in the profession. Moving from a colonial misogynist whim to a post-colonial “new-age construct of Indian woman” façade, the policymakers of the Indian Judiciary have done nothing so far to decolonize itself from its rudimentary understanding of ‘equality of gender’ when it comes to the legal profession. Therefore, when Indian jurisprudence was (and is) swooning to the sweeping effect of transformative constitutionalism in the understanding of equality as enshrined under the Indian Constitution, one cannot help but question why the legal profession remained out of brushing effect of achieving substantive equality. The Airline industry’s discriminatory policies were not spared from criticism, nor were the policies where women’s involvement in any establishment serving liquor (Anuj Garg case), but the judicial practice did not question the stereotypical bias of gender and unequal structural practices until recently. That necessitates the need to examine the existing Bar policies and the steps taken by the regulatory bodies in assessing the situations that are in favor or against the purpose of furthering women’s issues in present-day India. From a comparative feminist point of concern, South Africa’s pro-women Bar policies are attractive to assess their applicability and extent in terms of promoting inclusivity at the Bar. This article intends to tap on these two countries’ potential in carving a niche in giving women an equal platform to play a substantive role in designing governance policies through the Judiciary. The article analyses the current gender composition of the legal profession while endorsing the concept of substantive equality as a requisite in designing an appropriate appointment process of the judges. It studies the theoretical framework on gender equality, examines the international and regional instruments and analyses the scope of welfare policies that Indian legal and regulatory bodies can undertake towards a transformative initiative in re-modeling the Judiciary to a more diverse and inclusive institution. The methodology employs a comparative and analytical understanding of doctrinal resources. It makes quantitative use of secondary data and qualitative use of primary data collected for determining the present status of Indian women legal practitioners and judges. With respect to quantitative data, statistics on the representation of women as judges and chief justices and senior advocates from their official websites from 2018 till present have been utilized. In respect of qualitative data, results of the structured interviews conducted through open and close-ended questions with retired lady judges of the higher judiciary and senior advocates of the Supreme Court of India, contacted through snowball sampling, are utilized.

Keywords: gender, higher judiciary, legal profession, representation, substantive equality

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