INTRODUCTION
Oscar Vilhena Vieira, Upendra Baxi and Frans Viljoen
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Introduction
This book is about how apex courts in Brazil, India and South Africa are meeting the challenge of implementing the generous group of rights recognised by the aspirational Constitutions of these three countries. We use the term ‘apex courts’ to refer to the courts in countries that have the final say on constitutional matters: in Brazil, the Supreme Court (Supremo Tribunal Federal, or STF); in India, the Supreme Court; and in South Africa, the Constitutional Court. The differences between the constitutions, apex courts and legal cultures of these three countries are numerous and significant, threatening to render any attempt at comparison suspect, if not useless. However, in our view, they also share a number of features that allow for a productive comparative analysis. All three countries chose to depart from the past – a past of colonialism, apartheid or military regimes – through a constitutional process. These processes resulted in bold constitutional documents that not only aim at regulating the distribution of power, the organisation of a system of representation, and the definition of individual rights, but which also aspire to establish a new political and moral foundation for each society. The three Constitutions are ambitious normative documents. During their existence, these Constitutions have been able to establish relatively stable democratic systems, which occupy key positions in their respective regions. The three apex courts became pre eminent by adjudicating hard cases in the exercise of their constitutional role. This is not to say that these courts’ activities are not ambiguous or subject to criticism. Yet, they personify a new world wide wave of constitutional adjudication. These three countries (together referred to as the IBSA countries or, following the alphabetical sequence, the BISA countries) also share common problems, namely, the challenge of overcoming poverty, discrimination and inequality and promoting equal access to good quality education, health and housing programmes. In this sense, they share the challenge of implementing ambitious constitutional promises, especially the universalisation of human 3