Immutable clauses and judicial review in India, Brazil and South Africa: expanding constitutional courts' authority

Abstract

The development of immutable constitutional rights in India, Brazil and South Africa (IBSA) is an historical response to violence and oppression. Such rigidity, however, institutes a deep distrust of the legislature and the sovereignty of future generations, unbalancing the delicate democratic stability supporting the system of judicial review. This article discusses the lively jurisprudence of IBSA and notes that the courts adopt the formal shielding of the immutability theory selectively and not homogeneously if compared with each other when they are confronted with critical issues for the parliament and the executive. Nevertheless, it is contended that, as to the judiciary's institutional power and prerogatives, all IBSA's constitutional courts overall embrace activist interpretation based on immutable clauses to extend their jurisdiction and entrench their power over the other branches of government.