IN DEFENSE OF CONSTITUTIONAL MORALITY

Salc : Anneke Meerkotter

This SALC Policy Brief looks at the extent to which courts in the global South have carried through the idea of constitutional morality when asked to protect the rights of marginalised groups in society. Over the past 10 years, there has been a visible increase in the number of cases taken to courts seeking protection for the rights of lesbian, gay, and transgender individuals. These cases have had the effect of highlighting the extent to which the concept of constitutional morality is entrenched within the judiciary. Whilst the constitutions in all countries require that courts respect, protect and promote the rights entrenched in the constitution, it has been harder for the judiciary to adhere to this requirement where the legal issue at stake excites public opinion, and where the safeguards for judicial independence are fragile. This brief accordingly focuses specifically on how courts have recently dealt with issues pertaining to sexual orientation and gender identity. It is through such cases that we can assess to what extent courts have achieved the necessary maturity to protect constitutional morality.

Policy Brief on Constitutional Morality