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Article Review: Mark Tushnet, Vicki Jackson and Rosalind Dixon on Outsider Constitutional Interpretation

[Editor’s note: In this installment of ICONnect’s Article Review Series, Mark Tushnet comments on Vicki Jackson and Rosalind Dixon’s article on “Constitutions Inside Out: Outsider Interventions in Domestic Constitutional Contests,” forthcoming in the Wake Forest Law Review. Professors Jackson and Dixon first describe their argument, and Professor Tushnet responds.]

Another Dimension to Transnational Constitutionalism? Outsider Constitutional Interpretation

Rosalind Dixon, Professor of Law, University of New South Wales

Vicki C. Jackson, Thurgood Marshall Professor of Law, Harvard Law School

After a major constitutional crisis in 2011, Papua New Guinea (PNG) went to the polls in July, 2012, to elect a new democratic government and Prime Minister.  The timing of these elections, however, had been a major source of controversy, expressed in constitutional terms.  What was striking was the degree to which this controversy involved arguments by both “insiders” and “outsiders” as to the requirement of the PNG constitution.  Australian Foreign Minister, Bob Carr, for example, suggested that Australia “hoped the PNG [would] review the decision to defer elections for six months” and “believed that elections should be held on time and in accordance with the constitution”, and that if it did not, Australia might consider sanctions (SMH, 4/9/12).

This form of constitutional interpretation by “outsiders”, we suggest in our recent paper “Constitutions Inside Out: Outsider Interventions in Domestic Constitutional Contests”, forthcoming Wake Forest Law Review (2013), is an increasingly common phenomenon in a globalizing world. Similar forms of outsider interpretation, for example, occurred in the context of constitutional contests in Fiji in 2006, Pakistan in 2007, Afghanistan, Honduras and Nicaragua in 2009, and Zimbabwe in 2010.  Related, if somewhat, distinct patterns of “outsider”, or “extra-territorial” interpretation, can also be identified in the work of comparative constitutional scholars, the judgments of constitutional courts engaging with foreign constitutional materials, and recent amicus interventions by foreign NGO’s and IGO’s in courts such as the U.S. Supreme Court or the European Court of Human Rights.  Our article examines these practices, and explores the potential normative advantages, and disadvantages, to such acts of outsider interpretation.

Possible advantages of outsider interpretation include the ability of outsiders to deepen and enrich processes of insider constitutional deliberation by providing analyses and information relevant to the constitutional question; to offer a more impartial or distanced perspective than any insider could in sensitive constitutional controversies; and to offer arguably relevant information about the effects of interpretation on relations with others. Possible disadvantages include outsiders’ lack of familiarity with local constitutional complexities and traditions; the possibility of backlash due to the outsider provenance of information; and other reasons why outsider views may lack relevance or legitimacy (for example, due to a lack of “fit” with existing interpretive norms, such as  commitments to “democratic” control of constitutional meaning at the domestic level).

In a context such as PNG, for example, one possible advantage to Australia’s outsider constitutional interpretation was that of the impartial observer: the election did not directly involve Australia, and Australia was arguably less partial than either side of the controversy within PNG. Another potential advantage was “relational” – or the information it provided to the PNG government about the likely consequences, for the PNG-Australian, relationship of a decision to defer elections. Whether information of this kind is a legitimate factor in constitutional interpretation is, of course, subject to debate. However, for executive actors, at least, it might be regarded as such – and for the PNG government, the relationship with Australia is particularly important in terms of trade, and foreign aid. An equally clear possible disadvantage was the potential for such outsider intervention to cause backlash, or undermine those within PNG making similar arguments for early elections: the PNG Deputy Prime Minister, Belen Namah, explicitly suggested that Australia must “not threaten the independent state of PNG”  and “not intrude into the [PNG] election process” (AFR 4/5/12).  Whether Australia would be viewed as impartial could also be subject to question. The significance of local knowledge about the intricacies of a particular domestic constitution is also illustrated here:  Experts disagreed as to whether the PNG Electoral Commission, or the Parliament, had power to vary the date of elections; and this may have been one reason why the Australian Foreign Minister later backed down from his threat of sanctions, and called it a “mistake” (SMH, 4/9/12).

In our article, we also attempt to identify factors that may help evaluate the risks and benefits of outsider interpretation in different contexts. We focus on five overlapping questions: who (i.e. what kind of actor) is engaging in the act of outsider interpretation and by what means (each of which is relevant to how coercive attempts to influence are);  how outsiders are approaching the interpretive exercise (e.g. with how much knowledge of local expertise and debate and how much reliable information); when they are engaging in such acts (e.g. before or after opportunities for local interpretation); and why they are doing so – that is,  with what, if any, justification or reason.  Jurisdictional concepts developed in federal systems, and in international law, shed light on the relevance of these factors, especially in dealing with this “why” question of justification, as explained in the article.

Within this framework, we note, for example, that scholars generally lack coercive power; they work by persuasion, based on research and deliberation; and generally attempt to be fair-minded in their presentation and evaluation of legal materials.  Of course, comparative scholars do face substantial challenges, particularly with respect to local knowledge and understanding of foreign law. But in comparison to more coercive interpretive interventions, such as the initial comments on PNG by the Australian Foreign Minister, the risks of outsider scholarship on others’ constitutions are much lower.  Even when scholars take on more active and time-constrained roles, they may be able to offer a more even-handed perspective: For example, although the Executive Branch of the U.S. government quickly condemned the action of the Honduran military in removing the President from office in 2009, in 2011 a group of outside scholars retained by the Honduras Truth and Reconciliation Commission to report on the events of 2009 concluded that there were constitutional violations, first by the sitting President (who was removed) and then by the Congress and military in removing him from office and from the country.  Outsider interventions through amicus curiae briefs, providing information relevant to a constitutional issue –such as historic information about the derivation of the habeas corpus clause of the U.S. constitution, or about comparative experience with providing procedural protection to detainees suspected of terrorist activity – similarly pose far lower risks of coercion.

In the PNG context, the “who” and “by what means” questions raised potential concerns of both coercion and impartiality:  the Australian government had complicated colonial ties with PNG and its own strategic interests in the region; it had power to enforce its interpretation through economic or other sanctions. The “how” question we know less about – but there may not have been time for detailed consideration of local debates about the procedures for deciding when elections were held before the Australian Foreign Minister made his remarks.  Yet delay might itself have foreclosed the possibility of early elections; and one of Australia’s aims in this context seems to have been to offer the necessary “practical support” and personnel to “enable elections to proceed as scheduled” (SMH 4/9/12).   Timing will often be tight when “outsiders” believe a “coup” is in process; the felt need for quick action is in tension with having full knowledge of  internal constitutional complexities, as we explore in our article: In the context of  Honduras in 2009, for example, the United States and the OAS were quick to condemn the change in Presidents as a military coup, when the events – though plainly irregular – appeared on more complete examination somewhat more complex, with constitutional departures on both sides.

As to the “why” or “with what justification” question: In the PNG context,   one factor may have been a concern to ensure accountability in the use of Australian aid-funding, in a way related to domestic political or even legal necessities; another may have been a concern about “externalities” –the capacity of election delays in PNG to set a precedent for delays in other parts of the region, thereby undermining Australian attempts to support the development of rule-of-law democracy. In Honduras, the OAS intervention was arguably justified by Honduras’ consent to the Interamerican Democratic Charter of 2001, which contemplates OAS interpretation of member state constitutions to determine if there has been “an unconstitutional interruption of the democratic order or an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order.” Whether such consent is sufficient to justify more coercive forms of outsider interpretive intervention raises complex questions of democracy in the increasingly transnational contemporary context.

A Reply to Dixon and Jackson

Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School

“Constitutions Inside Out” identifies an interesting and potentially important new-ish phenomenon in transnational constitutional interaction. Dixon and Jackson describe a number of situations where non-nationals criticize legal actors within a nation for failing to comply with the nation’s own constitution. (They include academics within their scope of inquiry, though I wonder how new the practice is within the academic community. Another way of describing “outsider constitutional interpretation by academics” is that the academics are attempting to “do” the domestic constitutional law of a nation other than their home, and I suspect that historically there’s been more than a little of that.) This comment focuses on one target of criticism, the military coup whose leaders claim justification in their domestic constitution. Dixon and Jackson offer two examples, Honduras and Fiji. Dixon and Jackson are careful to draw distinctions within the field they examine, and I think another distinction would have been profitable here.

Briefly: In Honduras the military coup was predicated on what I would call a “discrete” (claimed) constitutional violation, that the nation’s president had violated a strong constitutional norm against seeking to change the constitutionally specified term of the presidency. In Fiji, according to Dixon and Jackson, the military invoked “an implied doctrine of necessity” as its constitutional justification. The latter is a “general” constitutional violation.

My concern is that leaders of military coups always can, and often have, claimed that their intervention is necessary to preserve the constitutional order. So, in one sense every military coup may be the occasion for outsider constitutional interpretation. And, whether outsiders, especially other nations’ political leaders, criticize “ordinary” coups – where the military claims to have acted to preserve the constitutional order – is, I think, likely to be determined almost entirely by those nations’ foreign policy interests, or by an evaluation of the regime the military replaced (“the prior regime was so bad that anything is a move forward”). Dixon and Jackson acknowledge the importance of foreign policy interests as the ground of outsider interpretation (or failure to interpret). I doubt that any of the benefits they think may flow from outsider interpretation – deliberation, information-provision independent of foreign policy matters, impartial judgments – will actually occur with respect to “ordinary” coups, and so I think that it would be better to confine the field of inquiry by eliminating ordinary coups.

That would leave military interventions predicated on discrete constitutional violations, and indeed the Honduran case is one of the most interesting of those Dixon and Jackson discuss. I want to further their inquiry by suggesting that the field might also include what Ozan Varol has recently described as “the democratic coup d’etat” (53 Harvard International Law Journal 291 (2012)). Democratic coups are military interventions in authoritarian nations whose aim is to replace the regime with a more democratic one. Varol uses coups in Turkey in 1960, Portugal in 1974, and Egypt in 2011 as his examples. Democratic coups, for Varol, have several characteristics: an authoritarian regime, persistent popular opposition, a regime unresponsive to the opposition, a highly respected military, and – importantly in this context – “the military facilitates free and fair elections within a short span of time” and “the coup ends with the transfer of power to democratically elected leaders.” I think the latter two characteristics are the most important.

As Dixon and Jackson point out, sometimes outsider constitutional interpretation occurs in “real time,” that is, as the constitutional developments are on-going. In their general discussion and in the specific case of Honduras, they suggest that real-time interpretations might face particular problems: that the outsiders really don’t have time to offer deliberated judgments or to ensure adequate knowledge of the constitutional specifics at issue. Real-time outsider interpretations of coups that the military claims are democratic coups are especially problematic because as the events are in process, no one can know whether the military will actually “facilitate[] free and fair elections within a short span of time” or “transfer power” after the elections.

This might not be a problem were it to be always clear that the regime the military replaces is indeed authoritarian or totalitarian, although the outsider interpretations there are likely to have little impact on the military’s decision to facilitate elections, etc. But, militaries sometimes intervene when, the coup leaders assert, they are facing a proto-authoritarian regime or a nascent one and say that they are acting on behalf of a popular opposition whose full breadth has been suppressed by the regime. Think here of the justification offered for the 1973 military coup in Chile, or of the two-day failed coup against Hugo Chavez in Venezuela in 2002.

These examples suggest to me that it would be valuable to emphasize more strongly than Dixon and Jackson do that outsider interpretations might not merely have “drawbacks,” as they say, but might be positively harmful, when the outsiders endorse as constitution-advancing interventions, especially military interventions, that are in fact constitutionalism-limiting. This difficulty might be dealt with by expanding the negative side of the ledger to include “outsider interpretation as potentially harmful,” or by confining the field of inquiry to incidents where the military invokes a discrete constitutional justification rather than a general one.

 

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Published on November 4, 2012
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5 Responses

  1. Tokujin Matsudaira

    I really enjoy reading the post. Here is my comment:

    A national constitution may be not so domestic in its nature. Some of national constitutions, say, that in the postwar Germany and Japan, can be considered as peace treaties in which the losers promised the winners that they would restore democracy in home (read carefully the languages of Potsdam Declaration), constitutional guarantee of individual rights, and engage themselves in peace with neighboring nations and international community by abandoning their arm forces. Thus, at least for these two countries the “outsider constitution interpretation” was inevitable. In fact, in the early 1950s, the US, under the cold-war regime, had already revised its interpretation of German & Japanese constitutions and went to pressure the formal enemies to remilitarize. To respond to the outer interpretation, the West Germany (BRD) made official constitutional amendment to create a Bundeswehr, however subordinating the new armed forces to NATO to ensure that both domestic and outer constitutional interpretations will not run counter to each other.

    In Japan, the response was a little different. The majority of people and the elite oligarchy running the administration were reluctant to remilitarize-for different reasons. The conservative LDP government finally chose to fulfill the obligation created by new interpretation of the constitutional treaty by changing Japan’s own interpretation of the postwar constitution—establishing a new SDF and claiming that it is constitutional so long as it does not constitute war potentials banned by the constitution and it functions as part of the US presence in Japan. The Japanese Supreme Court has long avoided reviewing the constitutionality of the SDF. But the Court suggests, in the Sunagawa case (1959), that the US-Japan security treaty and the US military in Japan enforce Article 9 of the Constitution and thus constitutional.

    As a result, the Japanese constitution as peace treaty (besides the US, with whom it is still controversial) allows the outsider constitutional interpretation. That is, the US-Japan security regime (Both Japanese diplomats and American K-Street Mafias call it the US-Japan Alliance) against the communist China and DPRK are interpreted as part of Japan’s political constitution. In fact, according to the Anti-US constitutional narrative emerging among the public[ironically which is, in its essence, pro-US for it requires a facial reading of the constitution through democratic debates], the first DPJ cabinet, which was also called “Hatoyama-Ozawa” regime, collapsed partly because it tried to approach China [for partnership] and push the US to withdraw from Okinawa; it was a call for de facto constitutional amendment by changing the status-quo constitutional interpretation and thus offended all parties of Japan’s constitutional politics. The two lost their power and Ozawa was faced with criminal charge of misreporting his political contribution (however he won an acquittal from Tokyo District Court).

    For me, however, it is not clear how the outsider constitution interpretation (especially which conducted by the US) will react if, the populist right-wing takes power. They are very clear about what they want to do-they want to replace the current constitution with a new, authoritarian one-which focuses on limiting individual constitutional rights and remilitarization, but keeping parliamentary cabinet and elected public offices.

    The US (the Clinton administration) also intervened the interpretation of Taiwanese constitution when then-President Lee, in July 1999, claimed that Taiwan (ROC) and China (PRC) are in “state-to-state” relationship.

  2. Tom Ginsburg

    This article again illustrates the lack of correlation between good ideas and placement in top-ranked law reviews. Wake Forest’s students deserve credit for publishing a superb paper that is the first systematic identification of an important phenomenon.

    Apparently Tunisia’s President has recently called for the creation of something like an international court of constitutional review, to facilitate “outsider interpretation”. This would likely require some type of treaty. One can see many advantages to the proposal, and of course we have some examples in the form of regional human rights courts, that by their nature will interpret rights found in both regional treaties and national constitutions. But we do not observe international institutions with jurisdiction to interpret, for example, term limit provisions of constitutions. There is not an obvious explanation for the inconsistency, other than state reluctance to commit to formal and fixed political constraints.

  3. David Landau

    As one of the outsiders involved in the Honduras case, I would agree with the sense that this is a puzzling phenomenon. Aside from the real-political or coercive difficulties emphasized in the posts, I would emphasize that “interpretation” by outside actors has a somewhat dubious legitimacy. At least in close cases, it’s not clear what such a thing would mean — constitutional interpretations are “correct” in some sense only because they are undertaken by the right institutional actor, generally the judiciary of a given country and ultimately its Supreme or Constitutional Court.
    What I would say in our defense in the Honduran case is two-fold:
    (1) We focused on what we saw as fairly gross and obvious constitutional violations by both sides. We shied away from complex or sophisticated constitutional interpretation in favor of interpretations that seemed clearly unconstitutional under any interpretative rationale. Our work was aided on these points when there appeared to be a strong international consensus against a given course of conduct. In that sense — the convergence to some extent of domestic con law and int’l human rights law — I’m not sure even structural constitutionalism is a wholly domestic enterprise anymore.
    (2) Moreover, there was no legitimate domestic institution available to carry out constitutional interpretation. The Supreme Court had clearly taken sides when the removal occurred, so was with good reason not trusted by much of the population. All other bodies were similarly polarized; no institution was really seen as neutral or fair on this issue. In that kind of situation, I would argue that this kind of interpretation — especially if carried out non-coercively — might play a valuable sort of settlement function in the country. I think the Truth and Reconciliation Commission in Honduras was at least somewhat helpful in playing this role.

  4. Vergil Narokobi

    Thank you. I am a PhD student at the Law School at the Victoria University of Wellington, NZ. I am from Papua New Guinea and before I started my PhD I was a lawyer involved in that case. My PhD supervisor Dr Colon-Rios introduced me to this blog and alerted me to this article. I will have a read and offer my comments in due course as well as to keep up with new relevant postings. My research interest is in the implementation of PNG’s constitutional ideals which are non-justiciable, and by and large will head towards the debate on enforceability of social rights in the PNG context.

    • Vergil Narokobi

      My comments are limited to my experience of Papua New Guinea in this very interesting issue. Papua New Guinea’s Constitution was developed after a process of wide consultation by the Constitutional Planning Committee between 1972 and 1974. Their recommendations to the House of Assembly as to the form of the Constitution was contained in the Constitutional Planning Committee Final Report 1974. One of the underlying guide of what form the Constitution would take was that it must be “home-grown”. The phrase, “all power belongs to the people” expresses this well. Because the Constitution of Papua New Guinea recognises free speech, internally there would/should not be too much public opposition (as opposed to negative political reaction) for outsider interpretation of the Constitiution. But it would have to remain as a “view” of what the Constitution actually means. For an outsider to go to the next level to impose/threaten sanctions could lead to accusations of the outsider acting as “judge and jury” without a determination of the “facts”. Internally many Papua New Guineans held the view that deferral of elections was “unconstitutional.” Political pressure would then follow to resolve the constitutional problem. Perhpas a far more effective avenue for Bob Carr to secure Australia’s interest should have been a diplomatic approach instead of an immediate public statement threatening sanction. In my view, there should be a distinction between an outsiders view of what the constitution means and imposing a sanction. Only after other human rights violations associated with internally resolving the issue should outsiders, especially a state actor consider sanctions.

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