Courts in the constitution-making process

This chapter examines the role of the judiciary in four constitutional orders, Colombia, South Africa, Honduras, and Nepal in the constitution-making process in 1991, 1993, 2009, and 2011, respectively. It highlights paradoxes but also to offer justifications, both formal and substantive, for the intervention of the courts in the constitutionalization of a new legal order. The chapter argues that the existence of an interim constitution or a total revision of the existing constitution may grant direct authority to the court to intervene in the constitution-making process, for instance by controlling the constituent assembly, reviewing its acts and even certifying the final constitutional document. It examines the formal justifications for the courts’ intervention. The chapter focuses on the case of South Africa and shows that the existence of an interim constitution may provide the positive law ground for the courts’ intervention. It also focuses on the substantive grounds that permit the courts’ intervention in such process, when formal justifications are absent.