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26 S. Afr. J. on Hum. Rts. [ii] (2010)

handle is hein.journals/soafjhr26 and id is 1 raw text is: SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS VOLUME 26 PART 1 2010 CONTENTS Page SPECIAL ISSUE: CONSTITUTION-MAKING AS A LEARNING PROCESS ANDREW ARATO'S MODEL OF POST-SOVEREIGN CONSTITUTION-MAKING: EDITOR'S INTRODUCTION Johan van der Walt 1 Articles POST-SOVEREIGN CONSTITUTION-MAKING IN HUNGARY: AFTER SUCCESS, PARTIAL FAILURE, AND NOW WHAT? Andrew Arato 19 This article reconstructs a model of 'post-sovereign constitution-making', namely, a multi- stage, democratic model with round table or multi-party negotiations as its centre piece, involving two constitutions with free elections in between, and overall enforcement through a Constitutional Court. This is the model that was more or less perfected in South Africa in the 1990s. In comparison, Hungary, the empirical object of the study, is seen as an imperfect realisation, because the final stage, not provided for in the interim Constitution, was not com- pleted in a democratic process. The author thus sees the role of the Hungarian Constitutional Court as compensatory, and inevitably weakening, given the weak legitimating background provided for by an incomplete process. A case in point is the jurisprudence of constitutional amendments. In light of the inherited amendment rule, the Constitution of the regime change could only be reliably protected if the Hungarian Constitutional Court adopted one or another version of amendment review, in the path of the Indian 'basic structure' doctrine. The article tries to show that a four-fifths rule concerning constitutional replacement, adopted during an unsuccessful effort at constitution-making, could be a textual support for such a review. Subsequent to the conclusion of this research, the new right-wing Hungarian Parliament abol- ished the four-fifths rule, by using the two-thirds amending rule. This, in the author's view, is prima facie unconstitutional. LIBERAL DEMOCRACY: THE UNINTENDED CONSEQUENCE. SOUTH AFRICAN CONSTITUTION-WRITING PROPELLED BY THE WINDS OF GLOBALISATION Francois Venter 45 Is the apparent deterioration of South African constitutionalism to be ascribed to the manner in which the Constitution was written? To understand and evaluate the acclaimed process of producing the equally applauded Constitution requires insight into the history and attitudes of the main role-players in the constitution-writing process. The role of technical advisors and visionary political leaders needs to be recognised, and the global context in which the constitutions were written must be understood, in order to explain the unlikely conversion of the country to liberal democracy in 1993. The 15 years of unfettered constitutional jurispru- dence of the Constitutional Court has established a benchmark against which future growth or decline of constitutionalism may be measured. There are however disturbing signs pointing towards the decline of constitutionalism in a South Africa which is governed and administered by authorities who seem to have failed to internalise the precepts of the constitutional state. Some indicators useful for monitoring progress towards constitutional maturity or decline are proposed.

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