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

[Editor’s note: In this installment of I•CONnect’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.