Saturday, 26 November 2011

Constitutions: Political or Legal Texts?

Andrezej Rapacqynski
This week marks an exciting phase in the Arab Spring: Tunisia's constitutional assembly commenced year long discussions over the basic law for its people.

As they write, these MENA region trend-setters will be faced with a question similar to the one Eastern European constitution drafters in Poland faced in 1990: will the constitution be a political, or legal text?

Such a question should determine its content.

Professor Andrezej Rapacqynski, adviser to the Subcommittee on Institutions of the Polish Parliament's Constitutional Committee from 1989-1991, considered this question in depth:

"If a constitution is to be essentially a legal document, it must primarily include provisions that courts can enforce without upsetting the proper balance of power among the branches of government in a democracy.  It is usual, of course, for a constitution as a legal document to include all kinds of political rights as well as a number of other so-called negative rights, which prevent the state from interfering with an individual's exercise of free speech or religion, or which limit the state's power in criminal proceedings.  Often it is believed, however, that a constitution must be sparing in its guarantee of so-called social and economic rights, such as the right to work or to decent housing, or the right to a clean environment.  It might be difficult for a court to ensure that the government observes rights of this kind without taking on the role of a super-legislature, reallocating resources and reshuffling governmental priorities to a degree that healthy democratic systems ordinarily reserve for the legislature and executive.  The provision of such entitlements usually requires the state to make substantial budgetary outlays, as well as a host of other decisions concerning the relative importance of various social concerns, such as full employment versus inflation, or spending on housing versus spending on education or defense.

"Courts generally do not have the competence to make such decisions: neither their training nor the form of litigation provides them with the information and expertise required to structure governmental affairs at this level.  Nor do courts have the legitimacy--that is, the democratic pedigree--to make their decisions palatable to the public, who must live with the consequences.  Social rights are important; indeed, their achievement may be one of the most basic functions of a constitutional democracy.  But the hard choices necessary to turn rights into realities are often thought to be better left to the political system rather than to a legally binding provision of the constitutional text."

(Constitutional Politics in Poland: A Report on the Constitutional Committee of the Polish Parliament (written in 1990), Constitution Making in Eastern Europe, A.E. Dick Howard, ed. (1993), p. 107)

Poland was not destined to receive a new Constitution until 1997, yet Rapacqynski's commentary remains prescient today as it was then: constitution writers should consider the impact of their provisions.  If the document is meant to be merely symbolic and not enforceable by a court empowered with judicial review, drafters have a broader range of language and what are often called "rights" that may be included.  However, if drafters intend for their constitutions to be judicially-enforceable, they must limit provisions and identified rights to those that courts and judges are naturally empowered--and trained--to protect.

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