With most summoned legal experts agreeing that a direct application of a constitutional provision is the correct course of action, where was the case for interpretation?
Having received the case relating to the coronavirus-induced election postponement, the Council of Constitutional Inquiry (CCI) called upon amicus curie submissions from legal experts and practitioners.
Some who submitted their written opinion were invited to advise the CCI how to go about the case, while other experts were also invited. Essentially, the experts were in agreement on the relevant issues. They unanimously said that a situation where elections and a state of emergency (SOE) coexist has not been envisioned and so necessitates constitutional interpretation.
They concurred in their reasoning as well. Most of them advised that the matter can be resolved by Article 93 of the constitution, which governs a SOE, being given primacy over those relating to elections. They concluded this means postponing of elections thereby extending the terms of the incumbent governments until a time when the pandemic subsides and polls can be conducted.
While some prefer to characterize this unanimity as demonstrating the partisan nature of the hearing, on the other hand the experts’ testimony actually did not demonstrate that there was a case for constitutional interpretation. This is because:
- Whilst the experts said the situation is not covered by the constitution, they told the CCI to fill this ‘gap’ with what is no more than a direct application of Article 93
- Furthermore, direct application of Article 93 fits with one of the alternatives the government said does not require constitutional interpretation, and
- Unanimity among experts is unlikely in the event of an actual legal gap.
Silencing
The constitution’s silence on what would happen when an election falls during a SOE is said to necessitate constitutional interpretation. It is true that the constitution does not have a provision that specifically deals with a SOE and elections coinciding.
However, this is not only the case for its election provisions.
Under Article 93, the constitution categorizes its provisions into two: those that cannot be suspended or restricted during SOE and those which can be. Constitutional provisions listed under Article 93 (4) (c)—articles 1, 18, 25, 39(1) and 39 (2)— fall in the former and all other provisions under the latter. Only provisions in the former category would not be impacted by a SOE. Depending on their relevance to the conditions that led to a SOE, other provisions are subject to limitation and suspension.
For example, there is no provision that deals with what would happen to freedom of religion or assembly during an emergency. Both in the current SOE and those declared in 2016 and 2018, freedom of assembly was suspended. During the current emergency, freedom of religion is restricted. Other than in the context of the obvious tension between human rights and a SOE, this effect of the emergency has not been anything like as controversial as the election postponement.
Yet what is said for the provisions on those freedoms holds true for articles related to election. Because the right to vote and to be elected, recognized under Article 38, is not among the rights listed under Article 93 (4) (c), it is clear that these rights can be restricted to the extent necessary to avert the conditions that made the SOE necessary.
The nature of the pandemic requires sweeping restrictive measures on political and democratic rights, including the right to elect and to be elected. This in turn requires suspension of the election provisions. If there is no issue with regard to restrictions on freedom of assembly and religion during a SOE, there is no reason to claim that it is silent when it comes to elections.
Apply not interpret
In Politics of the High Court, Brian Galligan defines the act of interpretation as “to draw out principles and values from the constitution and apply them to cases as they arise.” During the hearing, that kind of interpretive activity was not displayed. As we have seen, after characterizing the concurrence between a SOE and election as a constitutional gap, most of the experts advised the CCI to fill this gap by direct application of Article 93.
The experts advised the CCI to suspend election-related provisions and extend the terms of the incumbents in accordance with Article 93.
The task of applying Article 93 of the Constitution does not require the involvement of the CCI and the House of Federation. Indeed, the government has already identified this as one of the alternatives that the constitution, without interpretation, is said to offer as a solution to the problem.
As I argued elsewhere, if interpretation is in order, what needs to be addressed is not whether election can be postponed, but whom is constitutionally qualified to assume power pending the election. The government may well have referred the matter to the House of Federation and CCI for legitimacy reasons. By telling the CCI to authorize the postponement of election and extension of the terms of the incumbent by virtue of Article 93, the testimony of the experts seems to go in that direction. Interpretation was not really a fourth option—it was a way of legitimizing one of the other three.
Incoherent consensus
What normally calls for interpretation on the ground that there is a gap is indeterminacy of the law. Concurrence of experts on a matter described as uncovered by the constitution is not in the nature of legal gaps that call for interpretation. In Interpretation Without Truth: A Realistic Enquiry, Pierluigi Chiassoni, observed that in both the civil law and common law legal traditions gaps invite differences of opinion among reasonable people on how to deal with the situation.
One of the features of gaps, in the civil law tradition, is that “[t]here is no necessary, universal, way of filling gaps up”. Where there is a gap, there are alternative gap-filling techniques that are likely to lead to different outcomes. Similarly, theorists in the common law tradition, in their definitions of gaps, emphasize “the law appears to be working ill there: legal criteria have run out entirely; …; the law speaks with an uncertain voice; the law speaks with many, confusing, voices, giving way to competing and incomparable alternative interpretations.”
The overwhelming consensus found among experts means the CCI hearings fell short of demonstrating this common feature of legal gaps.
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Editor: William Davison
Main photo: The CCI amicus curie hearings
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