Visit to Cape Town
January 22 – 25, 2009 upon invitation of the Constitutional Court of South Africa and the Venice Commission of the Council of Europe, a delegation of the Constitutional Court of Ukraine headed by Chairman A.Stryzhak visited Cape Town where it took part in the first World Conference on Constitutional Justice “Influential Constitutional Justice: its influence on society and on developing a global human rights jurisprudence”.
The Conference was attended by delegations from 93 constitutional judicatures – constitutional courts, constitutional councils, supreme courts and other bodies with equivalent jurisdiction.
For the first time in the history of constitutional courts, representatives of eight different regions /linguistic groups came together (Arab, Asian, Commonwealth states, European, Francophone, Ibero-American, South African and young democracies/CIS).
During the Conference, two topics were discussed:
Influence of constitutional justice on the society;
Development of the world human rights jurisprudence.
When discussing general trends of the constitutional development in the world and establishment of the constitutional justice, participants of the Conference came to certain conclusions on stable and universal trends observed all over the world:
1. Democratic constitutional principles are acquiring paramount importance. The principles of a law-based democratic state are becoming more systemic in nature. Constitutional amendments and additions are aimed at restricting power, decentralising political, economic and administrative powers and simultaneously at strengthening guarantees and expanding opportunities of self-government institutions. Decisions of constitutional courts influence the society, determine the trends of national development and serve as a source of law whereas the constitutional courts are guarantors of irreversibility of establishment of constitutional democracy.
2. The rule-of-law principle is acquiring a real content, basic constitutional principles and specific mechanisms of constitutional relations are being reconciled and requirements for constitutional responsibility are increasing.
3. Constitutionalisation of social systems is deepening, fundamental constitutional rights, human and civil freedoms are acquiring immediate active characteristics, determining the contents of power and strengthening constitutional guarantees of their protection. Constitutional definition of personal honor as a source of its rights and freedoms as well as the nature of direct implementation of constitutional rights are becoming more and more universally recognised.
4. Functional authorities of state institutions are being consistently specified; they are being brought in compliance with the functions of the branches of power; guarantees of independent exercise of these authorities are being strengthened. A balance of constitutional powers is acquiring a system nature; division of power is more criteria-based thus ensuring a dynamic functional balance of different branches of power. Functioning of the state institutions is more often based on the principles of cooperation and interaction.
5. A comprehensive constitutional mechanism of finding, assessing and restoring the violated functional balance of government institutions to ensure consistent strengthening of the society is consolidated; guarantees of constitutional stability are strengthened.
6. Simultaneously with deepening of legal globalisation one can observe sustainable search for the mechanisms of uniting universal values with specific national characteristics. The principles and norms of international law based on the common values, standards and positions are playing an increasingly important role in national law systems. The nature and functions of the state and law are also changing. The law is becoming more international. Constitutional courts transfer international principles and norms to the national ground. In this context, it is important to actively exchange and study legal positions of other courts, organise joint conferences, bi- and multilateral exchanges of experience.
In view of all this, there is a need to strengthen the international forum of constitutional justice.
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Chairman of the Constitutional Court of Ukraine A.Stryzhak took an active part in the conference. He made a presentation on “Protection of Human and Citizen’s Rights and Freedoms as Major Activity Area of the Constitutional Court of Ukraine”.
In his presentation, he briefly described the main areas of activities of the Constitutional Court of Ukraine and spoke about such a problem as execution of constitutional courts’ decisions and politicisation of courts resulting from ambiguous perception of constitutional court decisions by different political forces.
The later topics raised significant interest and were widely discussed during the meeting. Participants of the discussion agreed that there exists a problem related to execution of court decisions especially in the states with relatively young courts. However, gradually other authorities do recognise the decisions although not always quickly and there is hope that the situation will improve. At the same time, it was emphasised that judges should be striving to deserve citizens’ respect when adopting their decisions.
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Final Declaration of the World Conference reads that:
The conference on constitutional justice was held for the first time and brought together participants from 9 regional/linguistic groups;
Constitutional justice is a key element in fostering and deepening the basic values enshrined in the Constitutions that form the basis of the work of the Courts and Councils;
respect for human rights in all parts of the World is of paramount importance and governments must implement international human rights instruments.
The Declaration showed a common concern for the defence of human rights and the rule of law, both on a regional and a global level. One element identified as being at the heart of this jurisprudential trend is the unifying force of the Universal Declaration on Human Rights and the UN Covenants, the judgments of regional Courts such as the European Court of Human Rights, the Inter-American Court of Human Rights or the African Court of Human Rights.
Mutual inspiration is also increasingly drawn from the case-law of peer Courts of other countries and even other continents, which gives rise to cross-fertilisation between the Courts on a worldwide scale.
While constitutions differ, the basic principles underlying them, in particular the protection of human rights and human dignity and respect for the Constitution and the rule of law, form a common ground. Legal reasoning in respect of the application of these principles in one country can be a source of inspiration in another country, notwithstanding the differences in their Constitutions.
Consequently, the exchange of information and experience between the Courts and Councils should be reinforced on a regional and global basis.
The participants of the World Conference entrusted a Bureau, composed of the Presidents of the regional groups and the three Courts which hosted the preparatory meetings, assisted by the Venice Commission, with the goal of organising a second World Conference on Constitutional Justice within three years.
The Bureau is also entrusted with making proposals for the establishment of a World Association open to the Courts belonging to the regional or linguistic groups.
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During the visit, the delegation of the Constitutional Court of Ukraine had a range of meetings with representatives of bodies of constitutional jurisdiction from Azerbaijan, Bilorus, Armenia, Georgia, Indonesia, Kirgizia, Latvia, Lithuania, Moldova, Russia, Romania, Hungary and other, during which they exchanged the experience of work of their courts and discussed further areas of cooperation.
