"Challenges in Comparative Constitutional Law"
June 14, 2019
The question has to be asked that where we are heading and how the global society is working while interpreting the Constitution and providing the rights of human kind. What are the principles which should guide the judges across the jurisdictions while interpreting the rights, powers of executive, having the appointments in constitutional courts of the judges? We can have recent examples from the Bangladesh Supreme Court where the provisions to interpret the judicial appointment procedures the judge gave the very lengthy judgment citing different judgments and precedents from Indian Supreme Court. The basic structure theory is a prime example of the global constitutionalism, it has been expressly recognized in South African Constitution, it has been cited in many countries that this is something which is permanent and we cannot touch the basic feature and same cannot be destroyed by any arrangements of amending power of parliament. In endurance to the Constitution, of course we think to look into the other Constitutions how been built and that as timeline it can be broadly categorized into three phases; The earlier Constitution use to be the penetration among the few states like USA Constitution it was deliberation in Supreme Court whereas the subsequent constitution of 20th century is made by the Constituent assemblies but the Constitutions of 21st century and post soviet era Constitutions are being drafted by few individuals , professors and foreigners those who are not concerned with the real requirement of the specific constitution of a country like the Constitution of the Iraq, the Constitution of Egypt etc. how do the globalization is increasing and rights are going to be interpreted or the Constitutional provisions are going to be interpreted in those societies and other planets to survive. Cosmopolitan nature of the rights and particularly with the best governing document like Constitution what should be the approach can we develop some uniform principles to practice and adhere to streamline the process.
There are judges who have the different approach like J. Scalia of US very widely allows the use of foreign precedents. How do we reconcile the very idea of national identity and the sovereignty? As J. Scalia puts it why do we govern by foreign jurisprudence we have our own text we have our own rights and our own ways. The comparative Constitutional law with a transnational perspective, how do we deal it with supra national level. Professor Anne-Marie Slaughter she argues that this migration of constitutional ideas with globalization is another tool of dividing the Common law countries and civil law countries now it is becoming a tool dividing the global society in North and South. So the use and misuse, the opportunities and challenges which the comparative constitutional law and constitutional law is facing in this globalised world, we have to identify and streamline them.
Legal fraternity recognizing the important challenges in Comparative Constitutional Law approach across the Commonwealth Nations and to find solutions a two day South Asian Colloquium on Commonwealth Comparative Constitution and Public Law on 16th & 17th of January, 2018 was organized at Lloyd Law College, Top 10 law colleges in India.
Lloyd Law College