Breathing Life into the Constitution: the Transformative Role of Courts to Give a Unique Identity to a Constitution

Abstract

This paper reflects on the transformative role of courts to direct and change the pathway of the countries in which they serve. The paper commences with a brief discussion of what is meant by transformative constitutionalism. It takes issue with the proposition that newly created courts under post 1990-constitutions are more prone to constitutional transformation than courts under older constitutions. It shows how there have been examples where courts have transformed their societies throughout the history of courts. It also points out that courts must, regardless of their transformative role, demonstrate respect for the separation of powers since all organs of government must work together to effectively transform society. The paper then focuses on 4 case studies where courts have radically transformed their society, namely Germany through the use of Bundestreue to give content to the federal system; India where Directive Principles of state policy are used to give content to human rights; Australia where the Aboriginal native title had been recognised after 200 years of denial; and South Africa where Ubuntu is used as a life-giving word to effect social justice. The proposition put is that the transformative ability of a constitution and the judiciary serving under that constitution is not determined by the age of the constitution, but by the ability of its justices to determine disputes on the facts, in accordance with the law, and in reflection of the realities of the society in which they reside. The fault lines of society often rapture in litigation, and that is when and where judges may direct a nation into a new direction.