You are invited to join the British Association of Comparative Law annual seminar when our three speakers will discuss aspects of the constitutional legacies and legal emancipation in the Commonwealth Caribbean and South Africa and highlight internal and external factors shaping local legal development.
- Dr Derek O’Brien (Oxford Brookes University) ‘The Judicial Committee of the Privy Council, Constitutional Interpretation and Same Sex Marriage’
- Dr Anashri Pillay (Durham University) ‘The paradoxes of transformative constitutionalism: examining the role of international human rights in shaping SOGI and social rights protection in South Africa’
- Professor Lindsay Stirton (Sussex University) and Martin Lodge (LSE): Colonial administrative law, emancipation and the quest for responsive law: comparing Jamaica and Trinidad & Tobago
When? Tue, 27 Jun 2023 09:30 – 11:30 BST
Where? Room G.04, Clerici Building – Headington Campus Oxford Brookes University Gipsy Lane Headington OX3 0BP
Please book your place by following this link.
ABSTRACTS
Derek O’Brien
‘The Judicial Committee of the Privy Council, Constitutional Interpretation and Same Sex Marriage’
My paper examines two relatively recent judgments of the Judicial Committee of the Privy Council (JCPC) upholding the constitutionality of bans on same sex marriage in Bermuda and the Cayman Islands. These judgments have disrupted the consensus that had been developing amongst apex constitutional courts in the common law world, in Canada, South Africa and the USA, affirming the existence of a constitutional right to same sex marriage, but are in accord with the jurisprudence of the European Court of Human Rights (ECtHR) and the United Nations Human Rights Committee (UNHRC) on this issue. As well as critiquing the JCPC’s approach to constitutional interpretation in these two cases and its reasons for conforming with the jurisprudence of the ECtHR and UNHRC on this issue, I also consider the implications of these decisions for the right to same sex marriage in the other jurisdictions which fall under the JCPC’s jurisdictions and which prohibit same-sex marriage, and in other countries, such as Hong Kong (which prohibits same sex marriage), whose courts continue to be influenced by the JCPC’s jurisprudence even though it is no longer their final appellate court.
Anashri Pillay:
‘The paradoxes of transformative constitutionalism: examining the role of international human rights in shaping SOGI and social rights protection in South Africa’
The paper will discuss the emergence and development of sexual orientation and gender identity (SOGI) rights protection in South Africa. The particular interest of the paper is in the impact of what I will loosely refer to as ‘external’ factors in this area. Laws condemning homosexuality in South Africa were a colonial import, originally from Roman-Dutch law. The Apartheid era saw the National Party’s enactment and implementation of a range of discriminatory laws stemming from the country’s Roman-Dutch and British common law legal traditions. However, with the advent of democracy, South Africa’s became the first Constitution to explicitly prohibit discrimination on the basis of sexual orientation. This was despite internal divisions on this issue within the incoming ruling party, the African National Congress, and strong public opinion against such a provision. The paper will examine the role of international human rights law in the constitutional drafting process and in constitutional reasoning on this issue. Here, it will draw upon parallels with the social rights (health care, housing, social security) provisions in the South African Bill of Rights. The paper will also consider the impact of regional factors on South Africa’s approach to SOGI issues, particularly in relation to its prevarication on the creation of a mandate for an Independent Expert on SOGI. With both protection of SOGI and social rights, the realities of deep-seated socio-economic inequalities and high levels of homophobic and transphobic violence do not match the aspirations of transformative constitution. The paper will attempt to draw some conclusions as to why this is the case.
Lindsay Stirton and Martin Lodge
‘Colonial administrative law, emancipation and the quest for responsive law: comparing Jamaica and Trinidad & Tobago’
This paper investigates questions of colonial legacies and emancipation in the Commonwealth Caribbean through the lens of the ‘stages’ model of legal evolution put forward by Nonet and Selznick in Law and Society in Transition. An important insight of this work for law and development is that, under conditions of limited governmental resources, societal demands for more responsive law can in fact lead to a regress to repressive law, as the state, “[c]onfronted with pressing issues of justice and public welfare,… [s]eeks to avoid commitments and resit demands.”
We build upon this insight in order to understand the legal-colonial legacies of Crown Colony government in Jamaica and Trinidad & Tobago, and to explain the achievements, surprises and disappointments of these countries’ independence constitutions and the formal and informal institutions of post-colonial administration. In essence, in the immediate pre-independence era, institutions of executive government that were autonomous in form, under pressure to become more responsive in reality became (and were seen to be) increasingly repressive. As the theoretical emphasis on repression as effects of governing under resource pressure would lead us to expect, however, this paradox of legal evolution did not end with independence: if anything, increased expectations that government would meet the demands and aspirations of the people put increased pressure on post-colonial administrative systems which remained resource-constrained. This paper examines how each of our two comparator legal systems responded to these pressures.
Based on archival research, this paper proceeds in three steps. First it explores the colonial legacy of a resource-poor and repressive administrative law setting. In the Jamaican case, the pressure for emancipation led to political demands to double down on responsiveness (albeit within a top-down orientation) that were directed at a more party-political and activist administrative law system in the 1970s. In the plural society of Trinidad & Tobago, pressures for ethnic emancipation became ever more prominent in the 1980s and 1990s. In both cases, the responses to these pressures had unintended consequences – in Jamaica, dependency on international markets and public sector reforms led to a partial ‘Weberianisation’ of the administrative state, in Trinidad & Tobago, the response to calls for more representative bureaucracy has been a growing spoils-system.
This event is kindly sponsored by Intersentia UK.
British Association of Comparative Law 