Volume 13, Issue 1 -

This paper explores the constitutional dimension of comparative criminal law procedure in a European context. It does so by focusing on the European civil law traditions and by explaining how the impact of constitutional law reasoning has changed the criminal law landscape. The paper argues that the influence of European Union law and the European Convention on Human Rights regime together with other comparative law effects have led to an adapted version of the comparative law project, where the orthodox distinction between civil law and common law is largely erased. Specifically, the paper focuses on the question of fairness and justification in the criminal law process, the principle of proportionality and the notion of dignity in a comparative perspective. The paper draws on both doctrinal and theoretical examples.

This article uses the case of Singapore to argue that the theory of open access order advocated by North and his colleagues provides one possible option only. Although their theory of open access order explains the West relatively well, it does not always apply to contemporary non-Western countries. Similar to the cases of India and Japan examined elsewhere, the case of Singapore shows that what is more important to economic and human development is the open access in the economic sphere and the interconnected institutions in the area of property rights protection and contract enforcement, financial market, rule of law, and human resource accumulation. In other words, countries without open access in the political sphere as practiced in Singapore may also be able to achieve a great deal of success in terms of economic and human development if they ensure open access in the economic sphere and devote adequate resources to establishing the necessary interconnected institutions examined in this article. Further research elsewhere on China will similarly demonstrate this insight.

South Africa and Kenya are among some nations that have adopted what are referred to as ‘transformative constitutions’, with the aim of bringing about radical change that would repair the cumulatively deep fissures in their societies. In order to determine how to satisfactorily give these constitutions effect, judges may undertake to first understand the people’s past experiences and how that informed the constitutional provisions that were adopted. This will in turn allow them to grasp what sort of transformation the people sought. One of the sources by which to undertake such a task is preparatory documents. In this study, these are the materials detailing the people’s views on the then-prospective constitutional provisions and discussions during constitutional conferences. By reference to the United States courts as a case study, this article seeks to find out the use to which judges interpreting provisions in the Constitution of Kenya and the Constitution of South Africa put preparatory documents. It does so through an empirical examination of select Human Rights decisions in both jurisdictions. It eventually finds that the examination of preparatory documents need not necessarily be viewed as an exercise that will restrain a judge, or fold back progress that has been made in progressive adjudication. At the very least, it will help a judge understand the transformation sought while in some cases, it may legitimize and enlighten a judge’s decision to interpret a provision in a more expansive manner.