Written rules on constitutional interpretation – in the liberal world and beyond

In order to test these hypotheses empirically, written rules on constitutional interpretation which are explicitly entrenched in constitutions around the globe shall be examined as to if and how they reflect a political system. While constitutional interpretation often occurs without or perhaps even despite such rules in practice, the worldwide comparison of written interpretive rules nevertheless delivers a very interesting sample of how constitutional interpretation may be shaped constitutionally.

The rules considered to be relevant in this context arc rules that guide the interpretive organs with regard to method and yardstick of constitutional

An ‘Instrument of Government’ or ‘Instrument of Courts’? 47 interpretation. According to this understanding, they neither comprise constitutional rules targeted at the interpretation of subconstitutional[1] law nor rules on constitutional interpretation entrenched in subconstitutional law nor rules concerned with the organizational or procedural aspects of constitutional interpretation, such as, e.g., the establishment of organs that are explicitly authorized to interpret the constitution. Constitutions of countries with a British legal tradition, in particular, often contain a final chapter or schedule titled ‘interpretation’ which, however, does not normally include abstract rules of constitutional interpretation but concretized definitions of terms used by the constitution. Such definitions operate like ‘crystallized’ interpretation rules inasmuch as a certain content which is suggested as the meaning of a constitutional term is already determined by the constitution itself and not left to the discretion of courts or other interpretive bodies. Similarly, many constitutions provide that a certain term or content must or must not be ‘deemed’ in such and such manner; in particular, this concerns cases where a lexgeneralis regulates a constitutional matter, with exceptions provided by a lex specialis. In truth, however, this is less an issue of constitutional interpretation than a regulatory technique. In many constitutions, the positive or negative definition of a constitutional term is accompanied by a clause such as ‘unless the context otherwise requires’ or ‘unless the contrary intention appears’ which requires a systematic or teleological interpretation method that takes precedence over the definition where applicable.

Even the limited range of rules considered to be relevant here, however, comprises a relatively large set of provisions that either positively stipulate or prohibit the use of a certain method or methods for interpreting constitutional law or the parameters which may or must be used as a yardstick for such interpretation.

Perhaps the most striking empirical observation is that the constitutions of consolidated liberal democracies within Europe, North America and Australia hardly contain such written rules. Rare examples are Sec 27 Canadian Constitution Act 1982 according to which the Canadian Charter of Rights and Freedoms shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians - a provision which was inserted only in 1982 and is limited to the interpretation of rights; or Sec 10 para 2 Constitution of Spain 1978, which was the first liberal and democratic Spanish constitution after the Franco regime, which stipulates that provisions relating to the fundamental rights and liberties recognized by the Constitution shall be construed in conformity' with the Universal Declaration of Human Rights and international treaties and agreements thereon ratified by Spain. A special case is constituted by the UK’s unwritten constitution as, indeed, several Acts that are considered to be constitutional in nature include interpretive rules ranging from the Human

Rights Act’s provision on the requirement to consistent interpretation[2] to the various rules of interpreting devolved competences.

On the whole, however, neither the original nor amended constitutions of mature Western democracies entrench rules on constitutional interpretation in the sense explained here. The fact that constitutional amendments in these states have generally not been made with a view to shape constitutional interpretation in a politically desired way suggests that liberal democracies of this type see no need to directly determine constitutional interpretation.

Admittedly, a majority of mature liberal democracies underlies, apart from other international treaties, the European Convention on Human Rights as well as the EU Charter of Fundamental Freedoms and, thus, both liberal and unifying interpretation by the European Court of Human Rights and the European Court of Justice. This does not sufficiently explain, however, why these constitutions lack interpretation rules also with regard to other constitutional issues than fundamental rights. It rather seems that democracies governed by the rule of law regard constitutional interpretation as an essential domain of independent courts - their constitutions are, in fact, not really silent on this issue but decide to let the courts decide on constitutional interpretation.

Other constitutions, however, include interpretation rules in great number and diversity. Among these, we find mostly younger Western-style constitutions that, in contrast to the aforementioned category, were enacted in environments lacking a mature liberal tradition. In these cases, the obvious intention of entrenched interpretation rules was mostly to guarantee the existence, maintenance and promotion of liberal democracy. Newly established constitutional courts or other interpretive organs should be guided by these rules in order to interpret the constitution in accordance with liberal values, to avoid interpretive uncertainty or even open misuse.

In most of these cases, interpretation rules are targeted not at the interpretation of the constitution as a whole, but at that of fundamental rights as a specific constitutional segment. A number of - particularly, Eastern European and African - constitutions include explicit rules on the interpretation of fundamental rights that are quite similar to the aforementioned Spanish example, namely, to interpret fundamental rights in line with certain or all international covenants on human rights or in line with the respective

An ‘Instrument of Government’ or ‘Instrument of Courts’? 49 international case law[3] which seeks to both maximize and internationalize fundamental rights as far as possible.

A similar type of such rules can be found in those rare cases where a constitution demands or at least allows for an interpretation that is guided by foreign law: the most prominent of these rules is Sec 39 para 1 subpara c Constitution ofSouth Africa, but other examples can also be found in Ai t 46 para 1 subpara c Constitution of Zimbabwe (‘relevant foreign law’) as well as - even with regard to the general interpretation of the constitution - Sec 11 para 2 subpara c Constitution of Malawi (‘comparable foreign case law’) and Art 3 para 1 Constitution of the Marshall Islands (‘decisions of the courts of other countries having [similar] constitutions’). Moreover, Art 1 subpara d Schedule 2.3 to the Constitution of Papua New Guinea demands that, inter alia, judges have to regard the ‘legislation of, and ... relevant decisions of the courts of, any country that in the opinion of the court has a legal system similar to that of Papua New Guinea’.

Other rules on the interpretation of fundamental rights often demand a liberal interpretation by entrenching certain values such as an open and free society, freedom, human dignity, etc., as interpretive standards, by requesting a systematic and purposive interpretation in line with the liberal spirit of the bill of rights or by prohibiting a restrictive interpretation of human rights or an extensive interpretation of limitation or derogation clauses respectively.

A number of constitutions include more general interpretive rules that concern the interpretation not only of fundamental rights but of the constitution as a whole. European constitutions hardly contain such rules, but one important, although not particularly liberal and certainly not ‘cosmopolitan-friendly’ or evolutive example is constituted by Art R para 3 Constitution of Hungary, according to which the provisions of the Constitution shall be interpreted in accordance with their purposes, the National Avowal contained therein and the achievements of the ‘historic constitution’; also the preamble to the Hungarian Constitution, with its strong references to history and Christianity, has thus to be taken into consideration. Further to that, Art 28 of the same Constitution stipulates that courts, when interpreting the Constitution, shall presume that it serves moral and economic purposes which are in accordance with common sense and the public good - all standards oriented rather at collective interests than individual rights. However, most of the non-Europcan constitutions that include general guidelines on constitutional interpretation positively combine an interpretation method with a liberal yardstick, i.e. they demand an interpretation that conforms to all or certain aims and values or even the whole spirit of a liberal constitution which implies both a teleological and systematic interpretation. Art 259 para 1 Constitution of Kenya is an illustrative example, as it entrenches

several standards (purposes, values and principles of the Constitution [subpara a]; the rule of law, human rights and fundamental freedoms in the Bill of Rights [subpara b]) which shall be promoted and advanced when the constitution is interpreted. Further, constitutional interpretation shall contribute to good governance (subpara d), which is another standard. Remarkably, constitutional interpretation shall permit the development of the law (subpara c) which is in line with Art 259 para 3 according to which every provision of the constitution shall be construed according to the doctrine of interpretation that the law is always speaking. While the first category of standards immanently suggests a systematic and teleological interpretation, the latter category refers to a dynamic ‘living tree’ instead of an originalist interpretation. However, the standards within the first category are partly overlapping, since some are ‘principles’ that have to be promoted, while ‘purposes’ may themselves be related to (all or some) ‘values’ and ‘principles’, without forming a substantive content themselves. A very similar though slightly shorter provision can be found in Art 267 para 1 and 3 Constitution of Zambia. Art 3 Constitution of Fiji requires an interpretation that promotes the spirit, purpose and objects of the constitution as a whole, and the values that underlie a democratic society based on human dignity, equality and freedom, which, again, combines methods with substantive standards. Sec 4 para 3 Constitution of Tuvalu requires that the Constitution shall be interpreted and applied in such a way as to achieve the aims of fair and democratic government, in the light of reason and experience and of Tuvaluan values as well as consistently with the principles set out in the preamble. Among these principles, Tuvaluan values, culture and tradition are emphasized as well as human dignity and the need for the constitution not to hamper a gradual change of these principles in a changing world. Again, this is an example of how substantive standards - in this case oriented at both autochthonous traditions and liberal democracy - are combined with a systematic and teleological interpretation method. By referring to its preamble the Constitution also clarifies that the preamble has binding force, at least for interpretive purposes.

In all of these cases, the respective rules were part of the original constitution and not inserted at a later stage. However, none of these constitutions were enacted prior to, and most of them even later than, the 1980s. Generally speaking, older constitutions contain interpretation rules to a much lesser extent than younger constitutions. Looking at the concrete states that entrenched such rules in their constitutions, this was obviously done with a view to overcoming former constitutional crises caused by revolutions, civil war, authoritarian regimes, economic troubles or other tensions. Far from governing mature liberal democracies, these constitutions and their interpretation rules rather seek to pave the way for establishing liberal democracies.

All of them seek legal clarity, and certainty inasmuch as the interpretive bodies are explicitly bound to obey certain standards and/or methods when they interpret the constitution. This resembles the aim of many legal definitions referred to earlier, namely to leave as little doubt as possible on the construction

An ‘Instrument of Government’ or ‘Instrument of Courts’? 51 of constitutional terms and provisions in general - which is also token of a certain tear or mistrust that interpretive bodies might interpret the constitution in an undesired manner. In all of the referred cases, moreover, these rules seek to implement substantive goals that arc liberal in nature. This is not only the case in the particularly rich field of fundamental rights interpretation, but also where general rules on constitutional interpretation apply. Interpretive bodies such as courts and (ordinary) legislatures should be motivated to consolidate these overall values when they enact judgments or ordinary legislation; but should also be deterred from undermining liberal democracy by attributing to the constitution any other meaning, or, in the case of courts, be protected from external pressure in this regard. Moreover, the referral to abstract principles, international or foreign law or ‘an’ open and democratic society seeks to guarantee a uniform liberal understanding of principles beyond the nation state - that is, shared by liberal democracies globally.[4]

It is quite another question, however, whether these aims can be truly realized in the desired manner. Firstly, even the most sophisticated interpretation rules cannot avoid the fact that they themselves need to be interpreted. Where these rules arc self-applicable - provided that they generally apply to the respective constitution as a whole and, accordingly, also to themselves - this problem can at least theoretically be resolved by interpreting them in exactly the way which is prescribed by them. This resolves the problem only formally, though; the vaguer the wording is, the more complex or even contradictory the standards are, the more difficult will it be to discern their exact meaning. Secondly, moreover, constitutional practice may turn out very differently from what is formally prescribed by a constitutional text. Where the constitution is not really effective, also the interpretive rules entrenched therein will have little or no effect. Still, however, even though this possibility' exists, it does not argue against the entrenchment of interpretation rules as such - in other words, it will not be their fault if they arc not heeded.

Even though the majority of interpretation rules form part of the respective original version of the constitution, there are cases where constitutions were amended exactly with a view to change prevailing constitutional interpretation. Such an example is the Constitution of Bangladesh which, until 2011, had stipulated that, inter alia, the ‘principles of absolute trust and faith in the Almighty Allah’ should guide constitutional interpretation. Since its 15th amendment, however, which introduced secularism among the fundamental principles of state policy, constitutional interpretation has had to be guided by secularism, among other principles.

A further category of constitutions contains ‘neutral’ interpretive rules that do not positively demand a liberal (or any) yardstick but restrict themselves

to determining the interpretive method. Some Latin American constitutions, for example, require an originalist interpretation of the constitution in line with the will of the constitution’s framers. The most impressive of these is Art 268 Constitution of El Salvador that reads as follows:

Trustworthy documents for the interpretation of this Constitution will be, in addition to the proceedings of the plenary session of the Constituent Assembly, the audio and video recordings which contain the incidents and participation of the Constituent Deputies in its discussion and approval, as well as similar documents elaborated by the Editing Commission of the proposed Constitution. The Managing Board of the Legislative Assembly must dictate the pertinent dispositions to guarantee the authenticity and conversation of said documents.

A similar, though less concrete provision is Art 196 para II Constitution of Bolivia which stipulates that the Pluri-National Constitutional Court shall give preference to the intent of the constituent assembly as demonstrated in its documents, acts and resolutions, as well as the literal tenor of the text. Also Art 427 Constitution of Ecuador requires an originalist understanding of the constitution, even though only among other interpretive methods and subsidiarily:

Constitutional provisions shall be interpreted by the literal meaning of its wording that is most closely in line with the Constitution as a whole. In the event of any doubt, it is the most favorable interpretation of the full and effective force of rights and that best respects the will of the constituent, in accordance with the general principles of constitutional interpretation, that shall prevail.

Art 24 Constitution of Papua New Guinea mentions ‘the official records of debates and of votes and proceedings’, enumerating them in some detail, as materials that can be used as aids to constitutional interpretation. Another example within this method-restricted category, namely of a required systematic and consistent interpretation, is Art 146 Constitution of Tunisia which stipulates that the Constitution’s provisions shall be understood and interpreted in harmony, as in indissoluble whole.

In the latter category of cases, the respective interpretive rule lacks any reference to a substantive standard and limits itself to determine the interpretive method. Indirectly, however, the method has impact on the substance, because either the will of the framers or a consistent interpretation of the constitution implies a yardstick - which, in turn, may have a more or less liberal character. A consistent interpretation of the Tunisian Constitution, for example, which shows a strong preference for Islam, being also the state religion, while at the same time guaranteeing religious freedom and stressing

1

This status is also protected by the eternity clause under Art 1 Constitution of Tunisia.

An ‘Instrument of Government’ or ‘Instrument of Courts’? 53 Islam’s aims as ‘characterized by openness and moderation’,[5] cannot follow the same liberal yardstick as if a secular interpretation of the constitution is explicitly stipulated. As a result, mere references to interpretive methodology suggest formal neutrality, but if the method determines an immanent yardstick, such as in the case of considering the ‘context of the whole constitution’ or the ‘will of the constituent’, the method indirectly demands interpretive orientation by a certain content.

Another type of prima facie neutrality with a ‘hidden’ content dimension can be found in Ai t 239 Constitution of Poland and Sec 5 of the Closing and Miscellaneous Provisions of the Constitution of Hungary. These rules do not positively request an interpretive method but just negate past constitutional interpretation. Without directly determining the interpretive method or yardstick, they indirectly invalidate the interpretive force of judgments made under the respective former constitution by the respective constitutional court. Whilst the individual decision taken by a judgment does not lose its legal effect, its remaining content - and this is, more or less, the applied authoritative interpretation of the constitution which, apart from the parties to the case, addresses a general legal audience - does. Art 239 Constitution of Poland refers, however, to the interpretation of statutes and not specifically to the interpretation of the constitution, and only to a limited period of time; while para 1 deals with judgments of the Constitutional Court regarding the nonconformity to the Constitution of statutes adopted before its coming into force which arc to be considered by the Parliament’s first chamber, para 2 and 3 are concerned with the same court’s resolutions regarding the universally binding interpretation of statutes which lose their universally binding force or shall, in case of pending proceedings, not be passed at all.

In the Hungarian case, however, Sec 5 of the Closing and Miscellaneous Provisions stipulates that decisions of the Constitutional Court taken prior to the entry into force of the Fundamental Law are repealed, but that this shall be without prejudice to the legal effects produced by those decisions. This provision, unlike the aforementioned positive interpretive rules, formed no part of the original Hungarian Constitution of 2011, but was inserted in 2013 by the Fourth Amendment and severely criticized by the Venice Commission. Here, it is not the repeal of judgments with regard to the universally binding interpretation of statutes, but it is the repeal of the decisions as such, apart from the individual legal effects produced by those decisions. The prescribed repeal does not, however, prevent the Constitutional Court

from applying a certain interpretation that was applied already in those former decisions.[6]

In terms of constitutional interpretation, Sec 5 is a formally neutral provision inasmuch as it does not positively prescribe an interpretive method or standard. Negatively, however, it invalidates any kind of legal bondage to former constitutional interpretation of whatever content. Taken together with organizational measures, such as, e.g., the retirement of old and appointment of new judges or the appointment of additional judges, such an invalidation may indeed create different constitutional interpretation -because a ‘new’ court, unlike perhaps an ‘old’ court, will not necessarily feel disposed to interpret the constitution in the same manner as before - and is at any rate not required to do so. This dilemma is obviously alluded to by the Venice Commission that spoke of ‘a systematic limitation of the position of the Constitutional Court’ by constitutional amendments ‘in reaction to decisions of the Constitutional Court’. Nevertheless, the provision as such does not force the Constitutional Court cither to apply its former interpretation or to disapply it, and in fact the Constitutional Court has not even abandoned using its former case law when appropriate. The provision only prohibits the Constitutional Court from regarding former case law and, thus, constitutional interpretation as binding. That constitutional courts are not constitutionally bound to stick to their former interpretation, however, is nothing per re that established civil-law liberal democracies would be unfamiliar with. On the contrary, we often find constitutional courts that develop their case law in unexpected ways, deviating from their former interpretation, because of‘societal changes’ or other ‘factual developments’. As long as these changes are explained in a reasoned way and targeted at promoting liberal values, an evolutive or ‘living tree’ interpretation is much less criticized. In truth, the pathology of the Hungarian provision lies in its nexus with the aforementioned substantive rules on constitutional interpretation which arc indeed binding also to the Constitutional Court.

There is not much to add on non-democratic constitutions in this context, since they regularly do not include any written rules on constitutional interpretation. Nor do they provide any independent interpretive organs in charge of constitutional interpretation. The North Korean Constitution, e.g., entrusts the Presidium of the Supreme People’s Assembly (not even the Supreme People’s Assembly itself) with the task of constitutional interpretation - instead of courts, apart from the fact that the Central Court is not

An ‘Instrument of Government’ or ‘Instrument of Courts’? 55 independent, but accountable to the Supreme People’s Assembly.[7] These constitutions have a merely semantic value which is set aside whenever occasion arises; they do certainly not provide possibilities to overrule the political will of the governing power by the means of constitutional interpretation.

  • [1] Some Islamic constitutions include rules on the interpretation of the Sharia, such as the preamble to the Constitution of Egypt, similarly Art 4 constitutional draft for Yemen or Art 8 Constitutional Draft for Libya. 2 Gamper, Regeln (n 10) 35-43.
  • [2] Sec 3 para 1 HRA 1998. 2 Sec 29 para 3 and 101 Scotland Act 1998, Sec 94 para 7 in conjunction with Sec 154 para 2 Government ofWales Act 2006, Sec 83 Northern Ireland Act 1998. 3 Martin Loughlin, ‘The Silences of Constitutions’ (2018) 16 International Journal of Constitutional Law 930. 4 See, for a survey Gamper, Regeln (n 10) 7-28. 5 See, e.g., Art 26 para 2 Constitution of Angola, Art 13 para IV Constitution of Bolivia, Art 17 para 3 Constitution ofCape Verde, Art 93 Constitution of Colombia, Art 13 para 2 Constitution of Ethiopia, Art 29 no 2 Constitution of Guinea-Bissau, Art 68 Constitution of Maldives, Art 4 para 1 Constitution of Moldova, Art 43 Constitution of Mozambique, Fourth Final and Transitory Provision Constitution of Peru, Art 16 para 2 Constitution of Portugal, Art 20 para 1 Constitution of Romania, Art 48 Constitution of Seychelles, Sec 10 subsection 2 Constitution of Spain, Art 23 Constitution of Timor-Leste.
  • [3] See, e.g., Art 53 Constitution of Kosovo. 2 See, with more detail, Gamper, Regeln (n 10) 12-21. 3 See, e.g., Art 20 para 4 Constitution of Kenya, Sec 7 Constitution of Fiji, Sec 36 and 39 Constitution of South Africa. 4 See details in Fruzsina Gardos-Orosz, Chapter 9 in this volume.
  • [4] Cheryl Saunders, ‘Judicial Engagement with Comparative Law’ in Tom Ginsburg and Rosalind Dixon (eds.), Comparative Constitutional Law (Edward Elgar Publishing 2011) 571,574. 2 Similarly, Art 8 Constitutional Draft for Libya stipulates that the Constitution shall be interpreted and bound in accordance with the Sharia.
  • [5] Preamble to the Constitution of Tunisia. 2 Similarly, on this ambiguity Hanna Lerner, ‘Interpreting Constitutions in Divided Societies’ in Erin F. Delaney and Rosalind Dixon (eds.), Comparative Judicial Review (Edward Elgar Publishing 2018) 99, 112-113. 3 Venice Commission, ‘Opinion on the Fourth Amendment to the Fundamental Law of Hungary’ CDL-AD(2013)012, 22. 4 Ibid.
  • [6] See also ibid. 21. 2 Ibid. 22. 3 Andras Jakab and Johanna Fröhlich, ‘The Constitutional Court of Hungary’ in Andras Jakab, Arthur Dyevre, and Giulio Itzcovich (eds.), Comparative Constitutional Reasoning (Cambridge University Press 2017) 433. 4 Venice Commission (n 27) 21. 5 Anna Gamper, ‘Legal Certainty* in Werner Schroeder (ed.), Strengthening the Rule of Law in Europe (Hart Publishing 2016) 80, 88-95. 6 Art 116 para 4 Constitution of North Korea.
  • [7] Art 168 Constitution of North Korea. 2 Howse (n 1) 645. See also, on the relationship between illiberalism and populism, Pablo Castillo-Ortiz, ‘The Illiberal Abuse of Constitutional Courts in Europe’ (2019) 15 European Constitutional Law Review 48, 49. 3 Andrew Arato, ‘Populism and the Courts’ (Blog of the International Journal of Constitutional Law, 25 April 2017) www.iconnectblog.com/2017/04/populism-and-the-courts accessed 14 October 2019.
 
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