JURISPRUDENCE

INTRODUCTION

Recent scholarship has focused on the role of constitutional courts in new or threatened
democracies. This literature has pointed out that these courts are often faced with particular
challenges that are different from the ones found in more mature democracies. Courts may act in
fragile democracies that are at risk of sliding back into authoritarianism. They often act in the
midst of poorly-functioning political systems, and they generally face the challenge of enforcing
rights--like socioeconomic rights--that are costly to enforce. At the same time, any assumption
that courts acting in poorly-functioning political environments are always weak courts has been
definitively proven false. Courts in places like India, Colombia, and South Africa have shown a
surprising level of activism and independence .

SOUTH AFRICAN COURT JUDICIAL ACTIVISM

Post-apartheid constitutionalism in South Africa is founded on a supreme constitution

with a justiciable Bill of Rights, whose enforcement is entrusted to a Constitutional Court. The
Constitution outlines platforms upon which the countrys new constitutionalism is built upon.
Section 1 provides:
The Republic of South Africa is one, sovereign, democratic state founded on the following
values:
(a) Human dignity, the achievement of equality and the advancement of human rights and
freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
(d) Universal adult suffrage, a national common voters roll, regular elections and multi-party
system of democratic government, to ensure accountability, responsiveness and openness.

In addition to the values above, section 7(1) provides that the Bill of Rights is a cornerstone of
democracy in South Africa, which enshrines the rights of all people in our country and affirms
the democratic values of human dignity, equality and freedom. Section 7(2) imposes an
obligation on the state to respect, protect, promote and fulfil the rights in the Bill of Rights.
Post-apartheid constitutionalism in South Africa is haunted by the spectre of the injustice
perpetrated by apartheid era regimes. There is perhaps no better way to capture the influence of
apartheid on South Africas constitutionalism than to reproduce Mahomed Js rich language in S
v Makwanyane:
All Constitutions seek to articulate, with differing degrees of intensity and detail, the shared
aspirations of a nation The South African Constitution retains from the past only what is
defensible, and represents a decisive break from, and a ringing rejection of that part of the past
which is disgracefully racist, authoritarian, insular, and repressive, and a vigorous identification
of, and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos,
expressly articulated in the Constitution. The contrast between the past which it repudiates and
the future to which it seeks to commit the nation is stark and dramatic. As guardian of the new
South Africa, through powers vested in it by the Constitution, the Constitutional Court has,
through a series of cases, managed to carve for itself, a role as legitimator of the countrys
social transformation project. In doing this, it has moved from a formal, to a substantive vision
of law.The study proceeds to show, through a number of decided cases, how the Court has
performed its transformative role in post-apartheid South Africa.
It would be almost impossible to analyse all decisions of the Constitutional Court in order to
determine cases in which it engaged in judicial activism. Accordingly, this segment of the study
focuses on controversial decisions of the Court. These are discussed broadly under
civil/political rights and socio-economic rights. The views of the Court, other arms of
government and the public are likewise analysed to explore how the Courts protection of
minority rights, or lack of it, has affected its legitimacy.

Death Penalty
Two years after it came into existence, the Court faced a major judicial hurdle in the case of
State v Makwanyane. It was asked to determine the constitutionality of section 277(1) (a) of the
Criminal Procedure Act, 1977, which permitted imposition of the death penalty for the crime of
murder. The government argued that the death penalty violates the right to life, and constituted
cruel, inhuman and degrading punishment which contravenes sections 9, 10 and 11(2)
respectively, of the 1994 Interim Constitution. Representing prevailing public opinion, the
Attorney General, an independent institution, argued that the death penalty was necessary to
curtail violent crimes and did not constitute cruel, inhuman or degrading treatment.

It is necessary to point out that S v Makwanyane was decided at an era of high crime rate in
South Africa. Arising under an undemocratic Constitution, the Court was acutely mindful of its
legitimacy, should its ruling prove unpopular. Accordingly, while generally agreeing that the
death penalty constituted cruel and degrading punishment, the Court was split on whether the
death penalty debate was political or judicial. To underscore the importance and difficulty of the
case, each of the 11 justices of the Court wrote a separate judgment expounding different aspects
of the debate. On the implicit admission of the political nature of the issue, Ackermann J argued
that even with abolition of the death penalty, the state could still protect citizens from a
convicted, unreformed, recidivist killer or rapist. Didcott J, while recognising the importance of
public opinion, believed that public opinion in this case was based on erroneous assumption that
the death penalty had a significant deterrent effect. Aligning themselves with the purely judicial
position of the debate, Mahomed DJP, ORegan J, Kriegler J, Kentridge AJ, Madala J, Mokgoro
J and Mahomed J were convinced that the Constitutions makers intended the issue to be decided
by the judiciary. Langa J and Sachs J based their judgments on the constitutional value of human
dignity.
Delivering the lead judgment, Chaskalson P admitted that majority of South Africans were
convinced the death penalty ought to be imposed in extreme cases of murder. He nevertheless
held that public opinion should not deter the judiciary from interpreting and upholding
constitutional provisions without fear or favour. According to him, if public opinion were to be
decisive, there would be no need for constitutional adjudication. In his words:
(T)he very reason for establishing the new legal order, and for vesting the power of judicial
review of all legislation in courts, was to protect the rights of minorities and others who cannot
protect their rights adequately through the democratic process.
The Makwanyane judgment was greeted with public outcry and calls for a referendum. It was
also criticised in legal circles. As pointed out by a scholar:
In the wake of a rising crime rate the Courts judgment has become a political football,
compromising the credibility of (not only) the Constitutional Court itself, but also of the
administration of justice as such.
However, the Makwanyane decision appears to have had no negative impact on the Courts
legitimacy. The final draft of the 1996 Constitution did not retain the death penalty. Again,
following the judgement, and in keeping with the abolitionist policy of the African National
Congress (ANC), Parliament moved quickly to abolish the death penalty by the Criminal Law
Amendment Act 105 of 1997.

Right to health
In Minister of Health v Treatment Action Campaign, the Treatment Action Campaign (TAC), a
non-governmental organisation, challenged the constitutionality of governments prevention
programme of mother to child transmission (MTCT) of HIV in the High Court. The programme,
inaugurated in July 2000, was confined to two selected sites in each South African province for a
period of two years. One site was rural while the other was urban. Governments aim was to
extend the programme to other public facilities outside the pilot sites by developing a national
policy in the pilot phase. During the test phase of two years, state doctors outside the pilot sites
were not given access to the preferred anti-retroviral drug, Nevirapine. The High Court ordered
the state to extend its MTCT programme and make Nevirapine available to all HIV positive
pregnant women (and their children) after childbirth, wherever medically recommended and
where such women had undergone HIV counselling and testing. The High Court also ordered the
state to develop a comprehensive national programme to prevent or reduce MTCT of HIV.
Unimpressed by the judgment, the state appealed the decision on the ground, inter alia, that it
violated the doctrine of separation of powers. The TAC countered by arguing that governments
policy was irrational. In its judgment, the Constitutional Court acknowledged that the legislature
and the executive should be the primary formulators of policy; but this does not mean that where
mandated by the Constitution, the courts cannot, or should not make orders that have an impact
on policy.It ordered the state to inter alia, remove restrictions placed upon Nevirapine outside
public health facilities that do not fall within the research sites and to facilitate availability and
use of the drug at public hospitals whenever medically prescribed. While the Constitutional
Courts judgment in the TAC case was resented by government as an intrusion in policy matters,
it was welcomed by civil society as a victory for sufferers of HIV in South Africa.
Right to housing
The right of access to adequate housing and the nature of the states duty in that regard came
before the Constitutional Court in the Grootboom case. Here, an extremely poor community of
390 adults and 510 children had lived in an informal settlement, Wallacedene, in very appalling
circumstances. Their horrible living conditions eventually forced them to illegally occupy a site
earmarked for low cost housing. Following their eviction from that site, and having nowhere else
to go, they occupied a sports field and an adjacent community hall. Sometime after this, they
applied to the High Court for an order requiring the state to provide them with adequate basic
shelter or housing until they obtained permanent accommodation. Section 26 of the 1996
Constitution provides that:
(1) Everyone has the right of access to adequate housing.
(2) The state must take reasonable legislative and other measures within its available
resources, to achieve the progressive realisation of this right.

Section 28 gives children right to shelter which is not limited by restraints like progressive
realisation nor available resources.
The High Court declined to grant relief to the applicants under section 26, but granted relief (to
some of them) under section 28 by ordering the state to provide children and accompanying
parents with bare minimum shelter in form of tents and potable water. In doing this, the High
Court adopted the approach of the Committee on Economic, Social and Cultural Rights (ESCR
Committee) in relation to the International Covenant on Economic, Social and Cultural Rights
(ICESCR). The ESCR Committee had defined the substance of the right to adequate housing by
reference to its minimum core.
The state appealed to the Constitutional Court, which chose to approach the issue from the angle
of the reasonableness of measures taken by the state to fulfil its obligations under section 26 of
the Constitution. It noted that the ESCR Committee did not define the minimum core
obligation of states in reference to the enforcement of socio-economic rights, and further that the
minimum core is only one consideration in determining whether the State has met its
constitutional duty to implement reasonable legislative and other measures to progressively
achieve the right of access to adequate housing. In determining the question of whether the
measures adopted by the state were reasonable, the Court held that the existing programme was
inadequate because it failed to cater for homeless and desperately poor communities such as the
respondents. It therefore ruled that the state had breached its obligation to devise and implement
within its available resources, a comprehensive and coordinated programme to realize
progressively the right of access to adequate housing. In arriving at this decision, the Court
departed from its precedent in the Soobramoney case and accorded judicial recognition to
enforcement of socio-economic rights in South Africa Grootboom was hailed for its departure
from Soobramoney, but criticised for failure to adopt the minimum core approach of the ESCR
Committee and granting only declaratory, rather than injunctive relief, which would have given
the Court supervisory jurisdiction over the judgment.

Definition of rape
The Court was faced with the constitutional validity of the common law definition of rape in
Masiya v DPP.The case arose from the judgment of the Pretoria High Court, confirming that of
the Regional Court.The Regional Court had convicted one Fanuel Masiya of unlawful, non-
consensual sexual intercourse with a nine-year old girl. The evidence had established that the
complainant was penetrated anally. The state had accordingly applied that the applicant be
convicted of indecent assault rather than rape. The common law defines rape in a gender-
specific manner that excludes anal penetration. In its judgment, the High Court upheld the
definition of rape to include acts of non-consensual sexual penetration of the male penis into the
vagina or anus of another person. It struck down certain provisions of the Criminal Law
Amendment Act and its schedules, and section 261(1) (e) and (f) and (2) (c) of the Criminal
Procedure Act. It ordered a reading in of the word person wherever reference is made to a
gender-specific provision.
In a majority judgment read by Nkabinde J, to which Moseneke DCJ, Kondile AJ, Madala J,
Mokgoro J, ORegan J, Van der Westhuizen J, Van Heerden AJ and Yacoob J. concurred to, the
Constitutional Court admitted the patriarchal origin of the common law definition of rape and the
fact that it falls short of the spirit and provisions of the Bill of Rights. Despite this admission, it
argued that because the victim of the rape was female, it could not consider the question of
whether nonconsensual male-on-male penetrative sex would constitute rape. The Court argued
that to extend the definition of rape to include men would infringe on the legislative terrain.
However, it extended the definition to include non-consensual anal penetration of women.
In a dissenting opinion concurred to by Sachs J, Langa CJ held that the anal penetration of a
male should be treated in the same manner as that of a female for to do otherwise fails to give
full effect to the constitutional values of dignity, equality and freedom.
The Masiya judgment has drawn criticism for declining to develop the common law to include
non-consensual male-on-male sexual penetration in a gender-neutral fashion.
Gay rights
In the Fourie case, the Constitutional Court dealt with one of its most divisive decisions: same-
sex marriages. It was asked to determine the constitutionality of the common law definition of
marriage as being between a man and woman, and section 30(1) of the Marriage Act (which
required the words lawful wife and lawful husband during exchange of marriage vows). The
state opposed the applicants on the ground that it was inappropriate for the judiciary to cause
such significant changes to the institution of marriage. It argued that such change should be
addressed by Parliament and relied on the following for its argument:
(a) Recognition of same sex marriages was not an appropriate solution to discrimination against
homosexuals;
(b) The Constitution did not protect the right to marry, and
(c) International human rights law recognised only heterosexual marriages.

In rejecting the states contentions, the Court acknowledged religious opposition to same-sex
marriages by ruling that ministers of religion were not legally obliged to solemnise a same-sex
marriage if it would contradict their religious belief. The Court described gays and lesbians as a
permanent minority in society who are exclusively reliant on the Bill of Rights for their
protection. It declared that the mere fact that the legal system might embody conventional
majoritarian beliefs on homosexuality does not by itself lessen the discriminatory effect of those
laws. It therefore easily found that section 30(1) of the Marriage Act violated the right to
equality and prohibition of unfair discrimination146 in a manner that did not satisfy the
reasonableness requirements of section 36 of the Constitutions limitation clause. The Court was
however divided over the issue of an appropriate remedy for the applicants. It was faced with
two options: to read in the words or spouse, into section 30(1) of the Marriage Act, so as to
accommodate same-sex partners, or suspend the declaration of invalidity of section 30(1) to
enable Parliament find an appropriate remedy. The state argued for the second option on these
grounds:
(a) The public should be allowed to debate the issue;
(b) The judiciary was not competent to alter the institution of marriage in such a significant
manner;
(c) Only Parliament had the power to alter the institution of marriage in such a dramatic
fashion.

The minority judgment, drafted by O Regan J, held that a reading in of the words or spouse
into section 30(1) of the Marriage Act would not create great uncertainty when the legislation is
eventually amended in favour of same-sex marriages, nor would reading in obstruct the
legislature in its policy choices. The majority reasoned that it was appropriate for Parliament, in
light of its democratic and legitimating role, to determine an appropriate remedy to encourage
greater stability in the institution of marriage and greater acceptance of same-sex marriages. The
Court therefore suspended section 30(1) of the Marriage Act for one year, to give Parliament
time to remedy the defect invalidated by the Courts judgment.

INDIAN COURT JUDICIAL ACTIVISM

CURRENT SCENARIO

As in any constitutional democracy, the Supreme Courts primaryrole is to interpret the Indian
Constitution. However, as in the UnitedStates, the line between interpretation of law and making
laws oftengets blurred in Supreme Court rulings. The basic structure doctrine,articulated by the
Indian Supreme Court in the landmark Kesavanandacase, more about which later, means that
that the Court can nullify any legislation that it thinks runs counter to the fundamental principles
of the Constitution. This seeks to place the Court as the final arbiter of the Constitution. A
leading legal scholar, UpendraBaxi, has this to say about the Indian courts: The question is not
any longer whether or not judges make law. Rather the questions are: what kind of law, how
much of it, in what manner, within which self imposed limits and to what willed results and with
what tolerable accumulation of unintended results, may the judge make law?

During the first decade and a half of the Supreme Courts existence, it is estimated to have struck
down 128 pieces of legislation. Of the first 45 amendments to the Constitution, about half were
aimed at curbing the judiciary. Hence, Baxi describes the Indian Supreme Court asprobably the
only court in the history of human kind to have asserted the power of judicial review over
amendments to the Constitution.Relations between the judiciary and the other two branches
have been exceptionally bumpy in the last few years. It even led the mild-mannered prime
minister of India, Manmohan Singh, to complain in April last year that the dividing line
between judicial activism and judicial overreach is a thin one . . . A takeover of the functions of
another organ may, at times, become a case of over-reach.
In the post-Emergency era, the courts would significantly expand their scope of operation
through the Public Interest Litigation (PIL)revolution from the 1980s. Chief Justice P. N.
Bhagwati, who was one of the prime movers be hind the idea of PILs, said in a historic judgment
In BandhuaMuktiMorcha v Union of India:

Public interest litigation is not in the nature of adversity litigation

but it is a challenge and opportunity to the Government and its
officers to make basic human rights meaningful to the deprived
and vulnerable sections of the community and to assure them
social and economic justice, which is the signature tune of our
Constitution.
In the PIL cases, the Court has allowed a wide range of matters to be heard. Letters addressed to
the Court are entertained as PILs so long as they meet guidelines. The guidelines, as listed by the
Supreme Court, cover a wide range of issues. As clause 8 of the Courts guidelines says,
petitions pertaining to environmental pollution, disturbance of ecological balance, drugs, food
adulteration, maintenance of heritage and culture, antiques, forest and wild life and other matters
of public importance would be admitted. On the one hand, this has made access to the courts
easier; on the other it has enabled the courts to dramatically expand their powers. The Courts
PIL initiatives have allowed judges to force widespread policy changes and implementation in a
host of areas. Many of these initiatives have been welcomed by the public and a media fed up
with a slow moving and messypolitical process. Indeed, the Courts interventions have quite
often provided for quick and beneficial remedies. For instance, in the celebrated Visakha case 31
in 1997, the Supreme Court defined sexual harassment and issued several directions to prevent
harassment of women in the workplace. Again, to cite a few instances, the Court has given relief
to bonded labor, ensured implementation of mid day meals in schools and cleaned up the air in
New Delhi.

A Fine Balance

Judicial activism, which is at the heart of the recurrent battles between the judiciary and the other
branches, raises profound questions about the role of a judiciary in a democracy that is marked
by glaring contradictions in all spheres of life. The judges themselves are well aware of this. In
the judgment by Justices Mathur and Katju, referred to earlier,the Court observed,

If the legislature or the executive are not functioning properly it is for the people to correct the
defects by exercising their franchise properly in the next elections and voting for candidates who
willfulfill their expectations, or by other lawful methods e.g. peaceful demonstrations. The
remedy is not in the judiciary taking over the legislative or executive functions, because that will
not only violate the delicate balance of power enshrined in the constitution, but also the
judiciary has neither the experience nor the resources to perform these functions.
In another ruling in 2008, Justice Katju raised questions about the impact of PILs:

PIL which was initially created as a useful judicial tool to help the poor and the weaker sections
of society who could not afford to come to the courts, has in course of time, largely developed
into an uncontrollable Frankenstein and a nuisance which is threatening to choke the dockets of
superior courts obstructing the hearing of genuine and regular cases which have been waiting to
be taken up for years together.

This also highlights how much the judiciary is stretched in tackling an ever-increasing backlog of
cases. CJI K. G. Balakrishnan has recently pointed out that there are 3.65 million pending cases
in the high courts and another 24.8 million cases in the lower courts. One of the reasons for the
mountain of cases is the absurdly low number of judges for a population of 1.1 billion litigious
Indians. Indias population-to-judge ratio is one of the lowest in the world. While the United
States and the United Kingdom have about 100 to 150 judges for every million of its population,
India has a mere ten judges for every million people. The huge backlog of cases threatens to
seriously affect the functioning of courts as well as impact the rule of law in India.

The Supreme Court has now realized its proper role in a welfare state and it is using this new
strategy not only for helping the poor by enforcing their fundamental rights of persons but for the
transformation of the whole society as the ordered and crime free society.The Supreme Courts
pivotal role in making up for the lethargy of the legislative and inefficiency of the executive is
commendable. Those who opposed the growing judicial activism of the higher courts do not
realize that it has proved a boon for the common man.

Judicial activism has set right a number of wrongs committed by the states.

Protection against inhuman treatment

In Sunil Batra versus Delhi Administration- it has been held that the writ of habeas corpus can be
issued not only for relating a persona from illegal detention but also protecting prisoners from
inhuman and barbarous treatment.

In Veena Sethi versus state of Bihar the court was informed through a letter that some prisoners,
who were insane at the time of trial but subsequently declared sane were not released due to in
action of state authorities and had to remain in jail from 20 to 30 years. The court directed that
they be released forthwith.

Child Welfare
In Laxmikant Pandey versus Union of lndia" Writ petition was filed on the basis of a letter
complaining of malpractices indulged in by several organization and voluntary agencies engaged
in the work of offering Indian children in adoption to foreign parents. It was alleged that in the
guise of adoption Indian children of tender age were not only exposed to the long dreadful
journey to distant foreign countries at greater risk to their lives but in case they survive they were
not provided only shelter and relief homes in course of time they become beggars or prostitutes
for want of proper care. J. Bhagwati laid down principles and norms which should be followed in
determining whether a child should be allowed to the adopted by foreign parents with the object
of ensuring the welfare of the child his lordship directed the government and various agencies
dealing with the matter to follow these principles in such cases as it is their constitutional
obligation under Article 15(3) and 39(C) and (f) ensure the welfare of the child.

In M.C. Mehta versus state of Tamil Nadu it has been held that the children cannot be employed
in match factories which are directly connected with the manufacturing process as .it is a
hazardous employment within the meaning of employment of children Act 1938. They can,
however, be employment packing process but it should be done in are away from the place of
manufacture to avoid exposure to- accident. Every children must be insured for a sum of Rs.
15,000/- and premium to be paid by employer a condition of service.

Protection of Ecology and Environmental Pollution

Supreme Court ordered the closure of certain limestone quarries on the ground that these were
serious deficiencies regarding safety and hazards, In them. The court had appointed a committee
for the purpose of inspecting certain limestone quarries. The committee had suggested the
closure of certain categories of stone quarries having regard to adverse impact of mining
operations therein. Large scale pollution was caused by limestone quarries adversely affecting
the safety and health of the living in the area.

In Shri Ram food and fertilizer case the Supreme Court directed the company manufacturing
hazardous and lethal chemicals and gases posing danger to health and life of workmen and
people living In its neighborhood,to take all necessary safety measures before reopening the
plant. There was a leakage of chlorine gas from the plant resulting in death of oneperson and
causing hardships to-work as and residents of the locality.

Professional Ethics and Medical men

In Parmanand Katara versus Union of India the Supreme Court has held that it is a paramount
obligation of every medical (private or government) to give medical aid to every injured citizen
brought for treatment immediately without waiting for procedural formalities to be completed in
order to avoid negligent death.
Power to Commute Death Sentence into Life Imprisonment

In Harbans Singh versus State of U.P it was held that under Article 32 very wide power has been
conferred on the Supreme Court for due and proper administration of justice. This inherent
power is to be exercised in extraordinary situations in the large interests of administration and for
prevention of manifiest injustice. The court will examine the nature of delay in the light of all
circumstances of the case and then decide whether death sentence should be carried out or
altered into life imprisonment.

Rape of working women-guidelines for rehabilitation and compensation

In a significant judgement in Vishakha versus state of Rajasthan the Supreme Court has laid
down exhaustive guidelines for preventive sexual harassment of working women in place of their
work until a legislation is enacted for this purpose. The court held that it is the duty of the
employer or other responsible person in work place and other institutions, whether public or
private to prevent sexual harassment of working women.

Corruption in public life and PIL

The PIL has proved to be a strong and potent weapon in the hand of the court enabling it to
unearth many scams and corruption cases in public life and to punish the guilty involved in those
scams. Howala scam, uria scam, fodder scam in Bihar, St. Kit's scam, Ayurvedic Medicines
scam' and illegal Allotment of government Houses and petrol pumps have come to light through
the public interest litigation, certain social organizations and public spirited individuals filed a
writ petitions in the Supreme Court and High Courts by way of public interest litigation
requesting court to inquire and punish those who are found guilty of by passing laws of the
country and mis using their official positions in public life.

Directions to make CBI independent and efficient

In a significant judgement in Vineet Narayan versus Union of India court has issued directions to
make the CBI independent agency so that it may function more effectively and investigate
crimes and corruptions at high places in public life which poses a serious threat to the integrity,
security and economy of the nation and to take necessary measure to prosecute the guilty. The
matter was brought before the court by way of a public interest litigation under Article 32 of the
constitution. It was contended that the government agencies, like the CBI and the revenue
authorities has failed to perform their duties and legal obligations in as much as they has failed to
investigate matters arising out of the seizure of the "Jain diaries" and to prosecute all persons
who were found to have committed an offence.
Custodial Death

In Nilabati Bahere versus state of Orissa the Supreme Court has laid down the principle on
which compensation is to be awarded by the court under Article 32 and 226 to the victim of state
action. The object to award compensation in public law proceedings under Article 32 and 226 is
Different from compensation in private tort law proceeding. Award of compensation in
proceeding under Article 32 and 226 is a remedy available as a defense in private law in an
action based on tort. The purpose of public law is not only to civilize that they live under a legal
system which aims to protect their interests and preserve their rights. The payment of
compensation in such cases to provide relief by way of "monetary amends" for wrong done due
to breach of public duty of not protecting the fundamental rights of the citizen.

COLUMBIAN COURTS JUDICIAL ACTIVISM

A presentation of the Courts powers and workload within the new constitutional system of
judicial review would be clearly insufficient to complete a picture of the role that the Court has
played in Colombia. A summary of the Courts key decisions and main doctrines in a number of
matters, which have proven to be especially controversial and significant for Colombia, will
facilitate an appreciation of the magnitude and impact of its work. This summary includes the
main decisions adopted with regard to constitutional rights, the organization and functions of the
branches of Government, the economy, and the limitation of private powers .
Even though Colombia has earned a sad reputation as a country with one of the worst human
rights records in recent history, the constitutional system adopted in 1991, which is highly
protective of fundamental rights and liberties, will ameliorate this problem to some degree.
Indeed, the bill of rights included in the new Constitution is one of the Colombian peoples most
noteworthy collective achievements.
Basic Liberties

Euthanasia
In a notorious 1995 verdict, the Court examined the provision of the Criminal Code that
penalized mercy killing, or murder motivated by pity. An actio popularis had been filed
against this provision on the grounds that the slight nature of the penalty imposed (six months to
three years in prison) was tantamount to an authorization to kill. Evaluating the proportionality
and reasonableness of the measure, the Court found that these types of actions were motivated by
humanitarian considerations. The Court found that these actions were meant to put an end to
intense suffering and that it was precisely this subjective element that had led Congress to
impose light penalties upon conviction. Regarding the issue of euthanasia, the Court asserted that
it is a matter that should be approached in Colombia from a secular and pluralist perspective,
fully respectful of the individuals moral autonomy and other constitutional rights and liberties.
The Court stated that individuals may not be forced to live in extreme circumstances in which
they deem life undesirable. From a pluralist perspective, the assertion of an absolute duty to live
is not sustainable, because life must not be understood as merely tenable, but instead as life with
dignity. Therefore, because the state may not carry out its duty to protect life by completely
disregarding an individuals autonomy and dignity, the Court concluded that in the case of
terminally ill persons who are experiencing intense suffering, the state should respect the
informed consent of the patient that wishes to die a dignified death. As a consequence, the
tribunal stated that the person who helps people in these circumstances die, would be acting out
of humanitarian feelings, rather than a desire to kill. Therefore, the Court ordered that in cases in
which the necessary conditions were met (i.e., terminal illness, intense suffering, informed
consent of the patient that wishes to die), euthanasia was permitted. Nevertheless, to avoid risks
of abuse and to protect the individual circumstances of patients, the Court held that the
justification for applying euthanasia could only be invoked by physicians. It is noteworthy that
the Court expressly called upon Congress to regulate euthanasia with the seriousness and detail
required by the complex nature of the problem. The Court also ordered that in the absence of
such a regulation, future cases of euthanasia must be initially investigated by the judicial
authorities in order to determine whether the strict conditions outlined for exonerating doctors
are met. This extremely divisive decision was accompanied by strong dissenting and concurring
opinions. The dissentees argued that the Court had invaded legislative functions and that the
majority decision had diminished the constitutional value of life. The dissenters believed that the
decision to die under such circumstances can never be a truly free one, and thus cannot be
protected as an expression of personal liberty. The dissent stated that the right to freely develop
ones own personality is not absolute and should be limited, above all, by the value of life. On
the other hand, one justice issued a concurring statement in which he emphasized that, in
addition to the conditions outlined in the majority decision, the physician should have provided
the terminally ill patient with some form of treatment that alleviated her suffering but did not
extend her life in an artificial manner. This formulation ensures that the final decision to cause
death is not a result of a desire to kill, but of a desire to put an end to intense suffering, even if
death comes as an indirect, unintended consequence.
Freedom and Equality of Religions

Protection of Minorities Cases

A number of tutela decisions issued by the Court have focused on the protection of the rights of
members of minority religious groups, which are often discriminated on the grounds of their
religious belief by public and private powers. The Court has consistently upheld the right to
abstain from compulsory catholic education in academic institutions at all levels,the right not to
be dismissed from work for observing religious traditions (e.g., the Sabbath), and the rights of
minority churches to receive state recognition of their autonomy and hierarchies. From another
perspective, defending human dignity and religious practices, the Court has protected minorities
even when they are within a given religion. In a highly publicized case, the Court recently
protected a disabled minors right to dignified treatment. The minor had been denied holy
communion by a Catholic priest, who publicly argued that, due to the minors mental capacity,
the child could not comprehend the meaning of the ritual at hand, and thus was like a little
animal.Although the Court did not order the priest to administer the Communion because of the
religious authorities autonomy over the matter and the absence of a unjustified differential
treatment, the Court did order the priest to retract publicly his statement that people with mental
discapacities are like animals. The Court held that such a position disregarded the most basic
dignity of any human being.
Freedom of the Press

Journalists Licensing case

One particular case concerning freedom of the press that has raised a significant degree of public
debate was a 1998 constitutionality decision in which the Court banned a law requiring
journalists to carry a professional card. This requirement had, in practice, created a kind of
licensing system. The primary argument advanced by the Court was the fact that the Constitution
does not restrict freedom of expression to those who can prove they have obtained a certain type
of education or qualifications in journalism. In other words, no specific group can claim control
over the exercise of an activity classified by the Constitution as a fundamental freedom for all
persons. The Court also asserted that the exercise of a given profession or occupation can only be
regulated when it entails some type of social risk and found that the risks involved in
allowing the freedom of opinion implicit in a democratic system are preferable to the risks of
suppressing it. In the end, the Court declared the law unconstitutional.The Court recently ratified
this doctrine when it struck down part of a bill, which the President had vetoed. In the Courts
view, the bill was an attempt to re introduce a licensing system by defining professional
journalists as those who held a university degree in journalism, or were certified by the Ministry
of Social Protection and had worked as journalists during the past ten years. After expounding
upon the crucial function of a free press within a democracy and highlighting various previous
forms of control over the press that are forbidden by the Constitution, the Court declared that any
person can become a journalist because of her right to freedom of expression. Nevertheless, the
Court accepted that a law can grant labor and social security benefits to journalists, as well as
protect them against violent threats, in so far as: (a) these protective measures are narrowly
tailored to exclude any risk of governmental intervention with the free press; and (b) the
enjoyment of these benefits depends exclusively on objective criteria .

Freedom of Expression

Equality
While the right to equality was not expressly protected by the 1886 Constitution, its existence
had been recognized by the Supreme Court of Justice and the Council of State in their
interpretation of other constitutional provisions protecting liberties. Both tribunals, however,
espoused a formal vision of equality, understood as equality before the law. In contrast, the
Constituent Assembly declared the right to equality to be the forerunner for all fundamental
rights and an essential goal of state activity. Delegates were especially keen on promoting a
substantial, and not merely formal, notion of equality. This call was issued a number of
times throughout the history of Colombias profoundly unequal society. It was most sharply
voiced by assassinated popular leader and presidential candidate Jorge Elicer Gaitn. Gaitn
declared in the 1940s that the people do not require rhetorical equality before the law, but real
equality before life.
The Constituent Assembly thus focused its efforts on trying to balance power relationships,
ensuring a more equitable distribution of social and economic resources and benefits,
interpreting the needs of the marginalized and the weak, and alleviating social injustice in
general. Consequently, the 1991 Constitution contains strong provisions on universal, formal,
and substantial equality. Article 13 includes six basic elements:
(i) a general principle of equality of treatment, opportunity, and protection, as well as equality
before the law and in the enjoyment of rights;
(ii) a prohibition on discrimination based on sex, race, national or family origin, language,
religion, and political or philosophical opinion;
(iii) a state duty to promote the conditions necessary to attain real and effective equality;
(iv) the possibility of creating advantages for discriminated or marginal groups;
(v) a directive to grant special protection to the weak; and
(vi) a mandate to punish those who abuse and mistreat vulnerable persons. The role of states in
establishing and preserving equality among their citizens was radically redefined to reflect
modern constitutional tendencies. Instead of merely preventing discrimination, the state must
now affirmatively correct the numerous inequities that pervade social and economic life. The
states duty is one that has been developed through myriad Court judgments. The examples
that follow must be understood in light of Colombias complex constitutional mandate. However,
the Courts decisions on the equality clause have not lived up to the potential of the
Constitutional mandate nor have those decisions sufficiently alleviated enduring social
inequalities.
Race (EQUALITY ISSUE)
The Courts silence on the issue of race can only be described as surprising. In a country with a
population that is approximately thirty percent black, an emerging political and social Afro-
Colombian movement, and a cultural heritage with substantial African and Afro- Colombian
roots, it is shocking that not one of the Courts pronouncements has dealt with the issue of racial
discrimination. This does not mean, of course, that Colombia is a racism-free democracy; sadly,
the situation is very much to the contrary. Perhaps the Courts silence can be explained by the
fact that the issue of race has not yet become a matter of national attention. Very few cases of
individual racial discrimination have been litigated; fewer still have reached the Court. Afro-
Colombian communities have entered the public sphere as multiple ethnic groups, and their lack
of unity has affected their treatment by the Court. For example, the myriad groups special
participation rights were upheld when a statute granting ethnic groups a special constituency in
Congress was reviewed. In addition, the Court has defended the cultural specificity of some
Afro-Colombian communities, such as the isleo communities of San Andres. In a recent tutela
decision,the Court examined a case in which the management of a building in Cartagena forbade
its employees to use the elevators. Although the plaintiff in this case was a black woman and
racial discrimination was present, the Court granted the tutela on grounds that the right of
equality is violated whenever access to services based on wholly subjective criteria. In other
words, people cannot be denied equal access to everyday services on the grounds of personal
conditions, such as socioeconomic status. Such restrictions are only acceptable when there is an
objective, reasonable, and constitutionally acceptable justification. The issue of race was only
mentioned as one among many unacceptable discrimination factors; it did not constitute a central
part of the ratio decidendi.
In spite of recent efforts aimed at empowering Afro-Colombian movements, the issue of racial
discrimination and segregation is still so deeply entrenched within social practice and culture
that, despite the abolition of slavery over 150 years ago, the black population remains one
of the poorest, most under represented, and vulnerable groups in the country.
COLLECTIVE RIGHTS

Environmental Rights
We have a green Constitution. Approximately fifty constitutional articles refer directly or
indirectly to the preservation of nature, which is one of Colombias most valued and threatened
assets. Not only does the Constitution entitle persons to a healthy environment, but it also
imposes upon the authorities and citizens alike the obligation to refrain from damaging the
environment and preventing its degradation. The state has affirmative constitutional obligations
to promote the conditions necessary for environmental conservation and development, including
providing environmental sanitation services, promoting protected areas, enforcing community
participation, and engaging in other environmental protection activities. The protection of the
right to a healthy environment is not new to Colombian constitutional law. The Supreme Court
of Justice, in a salient 1987 decision, upheld criminal provisions penalizing environmental law
violators. This decision showed how public law was evolving progressively to defend the quality
of human life. The Court also stated that the State has the unquestionable duty to incorporate
into its activities the protection of the environment, a duty which may be included even
within its classical mission to protect Colombian residents life. However, no specific
constitutional provisions were enacted to protect natural resources as a fundamental right.
The right to enjoy a healthy environment, which was classified by the Constitution as a
collective right,has been defined by the Court as the basic conditions surrounding individuals,
which allow their biological survival and guaranteeing their normal performance and balanced
development within society.In that sense, the Court has classified the right to a healthy
environment as essential for the survival of our species. The Court highlighted the fact that,
although the Constitution has classified this right as a collective right, under certain conditions
its violation may entail a threat to fundamental human rights. This threat makes tutela claims
admissible to protect it.Consequently, the Court has issued tutela decisions protecting the right to
a healthy environment when there are specific actions of environmental disruption or degradation
and when the integrity of this right is threatened by situations of a general nature. There are three
recent cases in this area. First, the Court has consistently protected the rights of ordinary citizens
to live in a healthy environment, when malfunctioning public utilities or private works disrupt
normal living conditions. For example, in a 1997 tutela decision, the Court protected the rights of
private citizens affected by a smell caused by their neighbors septic tank, which had not
received the appropriate attention of relevant authorities. Stating that the neighbors undue
disruption of the plaintiffs domestic environment constituted a threat to their rights to health and
life, the Court ordered the removal of the tank and the installation of adequate drainage facilities.
Another set of decisions concerns individuals or communities affected by inappropriate waste
disposal sites. In a 1999 decision, the Court reviewed the tutela presented by a woman on behalf
of herself, her family and her neighbors. These citizens lived in poor households alongside a
seriously faulty municipal landfill, which had noxious effects on their daily environments and
their health. The Court granted the tutela, because it considered the disruption of the right to a
healthy environment to be a severe threat to the fundamental rights to health and life.
Consequently, the Court ordered municipal authorities to buy the plaintiffs land next to the
landfill, so she could purchase adequate living elsewhere. In the alternative, the Court ordered
the authorities to suspend use of the landfill.

For the same reasons, in a 1996 decision the Court prevented the establishment of a waste
disposal site in Villavicencio because environmental requirements were not met. Second, the
Court has upheld the rights of individuals and communities affected by specific events of
environmental damage. However, the actual protection of such rights in cases in which
environmental harm has already resulted has been limited by the nature of the tutela procedure.
This kind of a limitation occurred in a 1996 tutela case in which the Court assessed the impact of
a serious oil pollution incident in the Pacific Ocean upon the members of an Afro-Colombian
coastal community who depended on fishing for their livelihood. Taking into account that the
affected community was entitled to special constitutional protection as an ethnic group, the Court
restated the States special obligations for environmental preservation. The Court affirmed that
sustainable development should be sought through decisions that minimize environmental harm,
while promoting economic growth from a precautionary perspective. Because the damage had
already occurred, and the tutela cannot be used in principle to seek economic indemnity, the
Court limited its holding to ordering the Ministry of the Environment to monitor the long-term
effects of pollution incidents. The Court also called upon other relevant authorities to fulfil their
functions in promoting the communitys welfare. This judgment is important because it stressed
the importance of the precautionary principle for Colombian authorities.

Further, according to the Court, the states constitutional obligation to provide environmental
sanitation services includes adopting emergency measures to address oil spill incidents and
compensating for individual loss and patrimonial damage sustained by affected persons. But in
this particular pollution incident, enforcing such an obligation to compensate through the tutela
was expressly rejected by the Court. Finally, the general situation of environmental degradation
in the coastal city of Santa Marta was examined by the Court in a 1997 tutela decision. In this
decision the Court examined a complaint filed by several inhabitants against local authorities,
which argued that the generalized pollution of the sea and beaches, and the inadequacy of urban
drainage systems, were due to the citys lack of planning and control over sewage disposal,
urban construction, and coal shipping. The Court granted the tutela to protect the plaintiffs
rights to a healthy environment, life and health. The Court felt these rights were violated by the
local authorities failure to regulate land use and urban growth and excessive issuing of
construction licences. As a consequence, the Court ordered the pertinent public entities to issue a
plan for the regulation of land use in the District of Santa Marta, which was to include sewage
disposal systems in accordance with legal requirements. The Court also ordered that construction
licences should be granted by the relevant environmental authorities and prohibited license
conferral in certain particularly degraded areas of the city. As to the noxious effects of air
pollution caused by coal shipping activities, the Court ordered the Ministry of the Environment
to adopt a comprehensive plan for the management of coal, through its extraction and
commercialization processes, in order to avoid negative impacts on human health.

The Court also upheld the right to a healthy environment in a series of abstract review cases. For
example, in a 1998 judgment, the Court reviewed the use of the Presidential veto against a bill
that established criminal penalties for persons convicted of causing serious environmental
damage by illegal mining or oil extracting. The President argued that the requirements of
serious damage and illegality of the activity were unconstitutional, because as they restricted
the scope of the general obligation to preserve the environment to extreme cases. The Court
accepted these objections and explained that environmental damage, even if it is caused by legal
activities, should always be seen as constitutionally illegitimate conduct. The Court stated that
the issuance of environmental licences should never be seen as authorization to harm nature.
Moreover, it expressed that the Constitution not only requires the state to punish infractors of
environmental regulations, but also to actively prevent and control degradation factors and seek
compensation for the damages caused.

CONCLUSION
Judicial activism by South Africas Constitutional Court is influenced by injustices perpetrated
by apartheid era regimes. Remarkably, this influence has not deterred the Court from
considerable deference to the executive and Parliament.This deference was manifest in
Grootboom. The Courts failure to adopt the minimum core approach in determining state
compliance with right of access to adequate housing diluted its authentication of justiciability of
socio-economic rights.
Similarly, in the Fourie case, excessive deference to the legislature resulted in deferring equality
rights of same-sex couples for 12 months. While the Courts approach to the minimum core
obligation of government in realising socio-economic rights may be explained on the ground of
budgetary implications, its deference to Parliament in the Fourie case is inexcusable. Finally, the
decision in Masiya v DPP shows that the Courts deference to Parliament tends to defeat its
mandate of minority protection. As Langa CJ pointed out in his dissenting opinion in the Masiya
case, groups of men like young boys, prisoners and homosexuals, who are most often the
survivors of rape, are, like women, also vulnerable groups in our society. How then does the
Constitutional Courts mandate to protect minority rights mix with deference to Parliament and
preservation of its legitimacy? This forms the crux of the remainder of this study.

Amidst the political incompetency of tackling the social issues prevailing in the society right
now, the judiciary has emerged as the last hope to common man.In a remarkable judgment
delivered in 2007 by a two-judge bench of the Supreme Court, Justices A. K. Mathur and
MarkandayKatju deviated from the case before them and pronounced:

Recently, the Courts have apparently, if not clearly, strayed into the executive domain or in
matters of policy. For instance, the orders passed by the High Court in recent times dealt with
subjects ranging from nursery admissions, unauthorized schools, criteria for free seats in schools,
supply of drinking water in schools, number of free beds in hospitals on public land,
requirements for establishing a world class burns ward in the hospital, the kind of air Delhites
breathe, begging in public, the use of sub-ways, thenature of buses we board, the legality of
constructions in Delhi,identifying the buildings to be demolished, the size of speed breakers on
Delhi roads, auto-rickshaw over-charging, growing frequencyof road accidents and enhancing of
fines etc.

Time and again the Indian courts have come to rescue the common man whenever his
fundamental rights have been infringed upon. With changing times and changing political
landscape the Indian Judiciary has to adapt itself to tackle array of issues. Now the Indian courts
are closing scrutinizing the work of investigating authorities like police and CBI by making
individual panels.

The Constitutional Courts contribution to the materialization and development of the 1991
Constitution has deeply impacted most aspects of Colombian life. Its judgments, which have
touched upon all areas of the law and all facets of Colombias complicated national reality, have
led the Court to become a necessary reference point for anyone who wishes to know in detail
what has transpired in Colombia in the past decade.
A CRITICAL APPRAISAL: FLAWS AND ASPECTS OF THE COURTS WORK
THAT REQUIRE IMPROVEMENT
The purpose of this summary of the Courts work is not to transmit the image of a perfect or
flawless tribunal. On the contrary, as a key player in the new system of constitutional judicial
review introduced in 1991, the Court has faced the challenge of materializing a very innovative
constitutional order within a highly complicated and violent reality. The Court has done so
during a short decade of evolution. Consequently, many aspects of its decision-making process
and its case law should be pointed out as areas where substantial attention and improvement are
required, as described below.
A.
First, there are several critical issues that the Court has left out of its case law even though they
are important components of Colombias everyday social and political life. The Court has not
given the same degree of attention to these issues compared to other, sometimes equally, crucial
matters. For example:
(1) The issue of race, as mentioned in Part II.B.1.b , has received scant consideration by
constitutional judges nation-wide even though racism, which still prevails in Colombia, is one of
the most silent structural traits of Colombias Hispanic socio-cultural heritage.
(2) The principle of participative democracy, enshrined in Article 1 of the Colombian
Constitution and other basic precepts (such as the Social State grounded on the Rule of Law
Estado Social de Derecho-pluralism or human dignity), has not been developed or applied to its
full extent in the Courts case law, in contrast with other basic constitutional principles that have
been addressed by the Court. Although it has been mentioned as an important general mandate in
some of the Courts decisions, especially those concerning popular participation mechanisms or
the participation of indigenous groups in the decisions that concern them, the broad reach and
implications of participative democracy, as well as its necessary impact on all aspects of ordinary
social and political life, have not yet been fully grasped or elaborated on by the
Constitutional Court.
(3) Some of the most salient and complex features of the new Administrative State designed by
the Constituent Assembly (i.e., the most characteristic aspects of the new Public Administration
established in 1991, such as the trend towards direct provisions of public utilities and services by
private entities under State regulation; the new scheme of relations and control between the
Executive and other independent regulatory agencies; the principle of administrative de-
centralization; or, the functions and activities of the Administrative Police) have not yet been
sufficiently explored by the Court. This lack of attention by the Court occurs in spite of the
complexities of their application to the ordinary activities of the Public Administration and the
important role the features of the new Administrative State play in the transformation of a
traditionally distant, inefficient, and bureaucratic system into an effective and present network of
committed public entities.
(4) Although the constitutional principle of equality has given rise to a high number of decisions
by the Court, and has been applied in a very diverse range of situations through conceptual
instruments such as tests, much still needs to be done regarding its precise and accurate
conceptualization. For example, much needs to be done in accordance with the constitutional
distinction between equal treatment, equal opportunities, and equal protection.
(5) In spite of Colombias sad reputation as one of the most insecure countries in the world, the
protection of personal security, especially of those groups or persons at great risk in the context
of Colombias violent conflicts (i.e., political dissidents, human rights defenders, demobilized
guerrillas, etc.), has not been addressed in a solid and consistent manner by the Court.
(6) Finally, although social rights have been directly enforced in concrete cases, the Court has
done so mainly in situations where a statute can be invoked to support its holding and order.
Therefore, the Court still has to develop a doctrine concerning the application of social rights to
poor Colombian citizens wherever Congress has not enacted legislation to respond to social
exclusion.

Recent scholarship has argued that standard constitutional theory asks a question--how to square
judicial review with democracy--that it cannot answer in a coherent or satisfying way.
Constitutional theorists should therefore arguably seek a different, and more productive, set of
questions. This article is an attempt to construct a more practical and productive constitutional
theory, at least for a subset of constitutional courts.
 The emerging constitutional courts and constitutional orders of what scholars have called the
Global South merit analysis on their own terms. These courts face a set of institutional and
social problems that often dwarf those found in more mature democracies. This paper argues that
a defensible conception of judicial role in these systems is a dynamic one, which focuses on
courts seeking to improve the quality of democracy over time. The main advantage of such a
conception is in suggesting a more fruitful set of questions, most of which need empirical study.

We need more work on the kinds of judicial strategies that are possible in different kinds of
political contexts, and also on the effects of those strategies on their political systems. We need
to know whether insider strategies, which focus on building up political institutions directly, or
outsider strategies, which focus on building up democratic spaces around political
institutions, are more likely to be effective. And most broadly, we need research on the dynamic
effects of judicial activism, within initially problematic political orders, on politics and society.
To what extent can courts improve the functioning of democratic institutions, build up civil
society, or spread constitutional culture? It is remarkable how little we know about the answers
to those important questions. The ultimate value of a dynamic theory, then, may be in suggesting
an agenda for scholars and judges.