ANCL-RADC ANNUAL CONFERENCE – ‘The Internationalisation of Constitutional Law’ Rabat, Morocco, 2-5 February 2011
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CONSTITUTIONAL INTERPRETATION AND THE NOTION OF UNENUMERATED RIGHTS:
CIRCUMVENTING THE EXCLUSION OF SOCIO-ECONOMIC RIGHTS IN AFRICA
In every State where the rule of law and separation of powers are recognized as norms, it is the judicial organ of the State that bears the exclusive responsibility of interpreting the fundamental law of the land, by whatever name it is called. The judicial organs in diverse States have therefore evolved various approaches in carrying out this onerous responsibility. Experience shows, however, that in interpreting constitutions, particularly in matters implicating life, liberty, and livelihood, the courts in some jurisdictions have identified or recognized claims and entitlements which are often beyond the rights explicitly guaranteed in such constitutions, and some continue to do so, albeit with some degree of inconsistency. This essay acknowledges that the notion of unenumerated rights constitutes an affront to the more entrenched concepts of positivism and formalism and even challenges age-long ideas about the philosophical foundations of human rights. However, extrapolating from case law, juridical pronouncements and ongoing scholarly discourses on the idea of unenumerated rights from different jurisdictions around the world, this essay evaluates the potential of this path of judicial innovation in promoting democratic governance, social justice and human rights in general, and in particular, the genre of socio-economic rights in African States. While not oblivious of the broad range of arguments against the notion of unenumerated rights in general terms, this essay advocates vibrant intellectual engagement with its long- and short-term implications for qualitative judicialism, access to justice, and genuine democratic claims in Africa, and proffers some trajectories towards the formulation of proactive strategies.
The very nature of a ‘constitutional state’ – cherished in law-ordered societies – is intrinsically linked to the rule of law; requiring that all authority be subject to, and constrained by law as opposed to the whims of one man, group, or party. However, it is axiomatic that the notion of the rule of law demands vital institutional attributes for its sustenance in any society. Among these are comprehensive laws, adequately equipped and independently functioning judiciary, and trained law enforcement personnel.1 Since the interpretation of the body of laws governing a state, and in particular, the Constitution – the fundamental law of several states in the modern world – is traditionally the responsibility of the judicial arm of government, it becomes inevitable that the existence and sustenance of a virile judiciary, or the absence of such, will indicate a benchmark for measuring a state’s commitment to the rule of law.
In the context of this essay, what is central is the impact of the technique of constitutional interpretation on the normative development of human rights. A critical review of judicial pronouncements and scholarly views demonstrates that it is no longer novel, could be desirable, and may indeed be inevitable, for courts to interpret written constitutions in such a way as to accommodate human rights norms that are not expressly enumerated in codified bills of rights. This cannot but be an attractive trend for constitutional discourses in African states where democratization, governance and human rights encounter enormous implementation challenges. The questions to ask, therefore, is whether the interpretative power of the courts will cover the expansion of the body of rights recognized in written constitutions; whether African courts can adopt proactive techniques in constitutional interpretation to enhance human rights and democratic culture; and whether this is a desirable path altogether.
An effort is made over the next few pages to examine the historical and philosophical foundations of unenumerated rights within the framework of the judicial function of constitutional interpretation; controversial and ‘grey areas’ in global constitutional jurisprudence and scholarship; the impact and influences of this sort of judicial functioning; and to evaluate the potential implications for constitutionalism and constitutional adjudication in contemporary Africa.
II. CONSTITUTIONALISM: BULWARK OF HUMAN RIGHTS PROTECTION
Although recent empirical studies usually trace the roots of modern political systems from the philosophical ideas of the Greek Republics all the way through eighteenth and nineteenth century intellectual enquiries, it has never been an easy task delimiting the historical details of law-ordered societies.2 The earlier political thoughts – the ideas of Plato and Aristotle; the liberalism of Locke and Rousseau as advanced in later years by Voltaire in France, the cautious empiricism of David Hume and Adam Smith, the utilitarianism of Immanuel Kant and Jeremy Bentham as promoted by John Stuart Mill, and the ideas of Thomas Jefferson and James Madison as evident in the Constitution and the Bill of Rights of the United States (US) – were all products of human history.3 History had taught those philosophers and political thinkers that when it comes to the use of power, those who possess excessive amount of personal ambition are often the most influential and, invariably, most dangerous; necessitating, therefore, that limits to governmental powers must be defined by law. Plausibly, therefore, this was where the seeds of constitutionalism were sown.4
With the enduring debates on the latitude of governmental power and the determination of the relationship between the government and the governed, the narrow passage of compromise among liberal-welfarists, contractarian constitutionalists, strict constructivists, realists, conventionalists, and minimalists alike, had largely been the need for formalized set of restrictions on those officials who wield political power – restrictions that must be founded on the rule of law.5 This ordering of a society and its governmental powers through the dictates of law, and limiting those powers – the conceptual basis of which lies in classical Western political thought – is what some scholars have described as “old constitutionalism” or “generic constitutionalism.”6
Notwithstanding the fact that constitutionalism continues to imply different things to different writers in different political contexts, certain notions have become its invariable parameters.7 In today’s legal parlance, constitutionalism implies governance according to the rule of law, an important universal norm that negates arbitrary rule.8 Closely linked to this neo-liberal conception is the existence of a written constitution that stipulates separation of governmental powers; checks and balances; judicial review; accountable governance; and, of course, a bill of human rights.9
With the collapse of communism following the dramatic socio-economic and political events of 1989, the ground had been laid for radical global policy reforms that would assert the earlier day values of liberalism, free market economy and human rights as opposed to the collectivist ideology of the defunct Eastern bloc.10 What became obvious, however, in the process of supplanting the old ideological divide was the realization of the inadequacy of merely ousting the old communist order as a guarantee for sustainable reforms. The consensual path was the gradual ascendancy of a global culture of human rights and the rule of law, enhanced through the instrumentality of constitutionalism.11
In the post-Cold War era, the ideals of democracy, rule of law and a culture of human rights, rooted in constitutionalism, have become entrenched in the consciousness of states.12 In the light of those tremendous changes that marked the end of the Cold War, Fukuyama had exclaimed:
As mankind approaches the end of the millennium, the twin crises of authoritarianism and socialist central planning have left only one competitor standing in the ring as an ideology of potentially universal validity: liberal democracy, the doctrine of individual freedom and popular sovereignty. Two hundred years after they first animated the French and American revolutions, the principles of liberty and equality have proven not just durable but resurgent.13
An enduring normative idea since the age of the earlier liberal thinkers has been the overarching imperative of human rights protection and promotion through constitutional provisions. Some scholars have argued that since individuals are themselves prone to abusing the liberties of others just as those who govern can abuse their powers, human rights constitute the best safeguards for the defense of individual liberties against tyranny.14 The desirability of including human rights provisions within the body of a national constitution or as an appendage to it is an idea that has found robust validation in ample scholarship. There is a contention that the inclusion of a bill of rights in a constitution translates such rights into a device for “legitimacy…and political stability” in pluralistic societies.15 Gavison also argues that “[t]he high visibility and solemn nature of most constitutions help in making the commitment to human rights a part of civil religion and civil-shared culture.”16 While critics of the constitutionalization of human rights contend that the inclusion of a bill of rights is neither necessary nor adequate to secure human rights protection,17 there is no denying the fact that the mere existence of such explicit provisions are potent in building, institutionalizing, and sustaining the processes that would ensure their promotion and protection as they gain more popular and informed cognition.18
As De Waal, Currie and Erasmus have argued, beyond strengthening the rule of law, democratic accountability, separation of powers as well as checks and balances – all fundamental principles of a constitutional order –
Bill of Rights overrides ordinary law and conduct inconsistent with it. In addition, subject to considerations of justiciability and constitutional jurisdiction, the Bill of Rights generates its own set of remedies…At the same time [it] contains a set of values that must be respected whenever ordinary law is interpreted, developed or applied. This form of application, which aims at creating harmony between the Bill of Rights and ordinary law, is termed the indirect application of the Bill of Rights.19
The 1787 Constitution of the US (together with the subsequent Bill of Rights, 1791)20 has been credited with the pride of being the first written constitution to have an entrenched bill of rights.21 Today, numerous states across the world have written constitutions with entrenched bills of rights, all African states inclusive except Swaziland.
By virtue of its long history of juridical engagement with the interpretive dynamics of a written constitution and constitutionalized rights, therefore, the influence of the US judicial system understandably looms large, not the least in the common law world. Whatever criticisms there may be against the stance of US courts in certain cases,22 there can be no gainsaying the fact that their tradition of radical constitutional interpretation impels intellectual scrutiny in a discourse of this nature.
III. CONSTITUTIONAL INTERPRETATION: COMPARATIVE TRADITIONS AND INFLUENCES
A constitution is central to a country’s legal system because it defines the principles on which the system is based. It sets up the most important institutions of government, states their principal powers and makes broad rules about how those powers are to be exercised. In several countries, those principles and rules are written down in one documentary piece and that document is called the constitution. Most modern democracies are thus characterized by the existence of written constitutions which usually contain the profound political and social values that determine the structures of governance and legal system.23 The presence of a written constitution has been described as naturally preferable as it offers a realistic platform for the exercise of judicial review, and the assurance of separation of powers, checks and balances, and the rule of law.24
It must be borne in mind from the onset that notwithstanding the codification of the fundamental rules relating to powers, privileges, rights and liabilities in written constitutions, their contents do not cease to create problems of interpretation for the judiciary – the organ traditionally assigned the responsibility of constitutional and judicial review in modern democracies.25 With the supremacy usually preserved by written constitutions over all other municipal laws; the futuristic and enduring values entrenched; the rigid posture; their general, abstract, and yet far-reaching contents; and the normativisation of high ethical values usually couched as bill of rights, all make constitutional interpretation a distinctively problematic experience for judiciaries.26
While the legitimacy of the powers of judges and the courts to interpret the Constitution has occupied the minds of many legal critics, it is the manner in which judges and courts so interpret written constitutions that has generated more prolific debate. Legal pundits have attempted value-neutral approaches to constitutional interpretation, ranging from originalism, purposivism, objectivism, to liberal and strict constructionism.27 To these have been added diverse other labels like grammatical or literal interpretation, systematic or contextual interpretation, teleological interpretation, historical interpretation, comparative interpretation, and many others.28 Much scholarly effort has been devoted to these abstractions and it serves no purpose to revisit them here.29 Suffice to say, however, that plausible as these approaches and labels might appear, there remains the challenge of debunking the neutrality of those theories, of exposing misleading criticisms, and of articulating effective and accessible methods of interpretation to give full meaning to the guarantees contained in Constitutions.
While there exist diverse quasi-judicial, non-judicial and inquisitorial bodies within various national configurations that may implicate constitutional interpretation,30 it is the role of the judiciary (or court system) that is of critical importance. The evaluation of the role of the judiciary here should not be construed as a “tendency to judicialize politics and politicize the judiciary.”31 Although it would be erroneous to confine the subject of constitutional interpretation to the realm of “judicialism”,32 the very essence of adjudication basically imports the concept of judicial review through which the ordinary law courts exercise their supervisory functions in law ordered societies.33
A legal concept of great antiquity, judicial review has drawn the attention of numerous exponents as well as critics. It has been the subject of vibrant debates within divergent domestic jurisdictions and has been the focus of many scholarly treatises.34 The historical origins, broader contexts and other fine details of this concept have been adequately covered in a considerable number of works,35 and need not detain us here.
The philosophical and conceptual basis for judicial review lies in the notion that the regular courts possess the inherent power to strike down a law, to overturn an executive act, or order a public official to act in a certain manner if they consider such law or act to be unconstitutional or to be contrary to law in a free and democratic society.36 While judicial review has indeed been such a time-honored concept, its impact has been felt more in the sphere of administrative law than in the field of human rights until relatively recent.37 Today, in various nations and across many jurisdictions of the world, judicial review is increasingly emerging as a cornerstone of human rights promotion and protection and has added considerable impetus to human rights discourses.38
Justifying the inevitable intercourse between human rights and judicial review, Hutchinson and Monahan assert that:
A sensitivity for individual rights might be seen as particularly appropriate and necessary in contemporary society. Individual life is dominated and permeated by large and complex bureaucracies, principally the state and the business corporation. The challenge to individual rights is no longer the lynch mob crying for blood, but the coolly rational bureaucrat, armed with spread sheets and cost-benefit studies. Regard for the Rule of Law…[will] ensure that “social managers” will not trample individuals in the march toward so-called organizational progress.39
In increasing measures, scholars and jurists across legal orientations and ideological boundaries have continued to identify judicial review – within the context of the interpretation of constitutionalized human rights – as a necessary tool for democratic balance and social justice in the modern society.40
Admittedly, in terms of practical experience and scholarship in constitutional interpretation, the US judiciary represents one of the most remarkable systems with over two centuries of ever-evolving constitutional dynamics. And no doubt, the arrowhead of this tradition has been the US Supreme Court. Even though the US Constitution contains no explicit provision on the function of judicial or constitutional review,41 the US Supreme Court has, since the decision in Marbury v. Madison,42 positioned itself as the undisputed final arbiter in matters involving the interpretation of the US Constitution,43 and in maintaining it as “a living Constitution.”44
Little wonder that Alexis de Tocqueville asserted that “the representative system of government has been adopted in several states of Europe, but I am unaware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans…A more imposing judicial power was never constituted by any people.”45
It must be mentioned that there is hardly any other aspect of US constitutional law where the above view finds credence than in the interpretation of the provisions of the US Bill of Rights. Notwithstanding the protracted controversy that continues to surround many of the proactive decisions of the US Supreme Court,46 the court has, in a long line of landmark cases demonstrated its capacity to remain proactive where laws clash with aspirations of liberty, or where governmental action would result in hardship, injustice or arbitrariness.47
Rather than cataloguing the prolific achievements of the US Supreme Court in general terms, however, what is immediately relevant to the present essay is the influence it has wrought in other jurisdictions of the world in a specific and narrow aspect of constitutional interpretation: the notion of unenumerated rights.
IV. UNENUMERATED RIGHTS: A SURVEY OF JURISPRUDENCE AND SCHOLARSHIP
In written constitutions generally, the corpus of human rights for which an individual may seek judicial interpretation, protection and enforcement are usually couched in ascertainable form.48 From a commonsensical perspective, therefore, whatever is not explicitly contained in a written constitution should not belong in or be read into it. This has been the viewpoint of judges and scholars of the positivism school of thought in various ages and climes. Placed within the framework of constitutional rights, any right not expressly conferred by a constitution cannot and should not warrant enforcement. In Barnett’s analysis of this viewpoint, “judges should only do what they are qualified to do and that is enforce ‘the rule laid down’ [since] they have no particular expertise to identify fundamental rights the content of which is not provided to them by an authoritative source.”49
The foregoing represents the point of sharp divergence among originalists and non-originalists. To originalists, a constitution’s meaning must be that as understood by the public at the time of its making and that if the meaning is not so fixed, the law, government, individual rights will be unpredictable, arbitrary and rendered susceptible to the subjective views of the courts. Conversely, non-originalists contend that a constitution’s meaning must manifest changing societal values and demands, and that if its meaning does not so evolve, society will be subjected to archaic values that cannot respond to current social challenges.50
Since the discussion of constitutional interpretation in this essay is located within the context of unenumerated human rights, an effort is made at this juncture to examine how different judiciaries have responded to this notion.
A. United States
As already mentioned, because of the paucity of the provisions of the US Constitution, and of course, its Bill of Rights, the necessity had arisen over the ages for the courts, nay the US Supreme Court, to interpret the constitution in ways that would make it respond to radical changes in social values and dynamics.
Over the course of the last two hundred years, the fount of this judicial engagement has been the provisions of the Ninth and Tenth Amendments of the US Constitution. It will be worthwhile to reproduce them at this juncture.
The Ninth Amendment provides:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The Tenth Amendment in turn provides:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
To these is naturally added the Privileges and Immunities Clause of the Fourteenth Amendment, namely,
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….
While there had been early skepticism and confusion about the notion of unenumerated rights in US constitutionalism,51 it was the embrace of Blackstone’s interpretation of sovereignty as well as the Austinian idea of positivism leading American statesmen and commentators that had fuelled the suppression and antagonism to elaborating the corpus of unenumerated rights.52 Wendell Phillips had located this positivist antagonism to unenumerated rights on the premises of majoritarian sovereignty. In his words:
There can be no more self-evident proposition, than that, in every Government, the majority must rule, and their will be uniformly obeyed. Now, if the majority enact a wicked law, and the Judge refuses to enforce it, which is to yield, the Judge or the majority? Of course, the first. On any other supposition, Government is impossible.53
St. George Tucker, an eminent Virginian scholar and jurist, had sought to validate the linkage between unenumerated governmental powers and unenumerated rights in those provisions as follows:
All powers of the federal government being either expressly enumerated, or necessary and proper to the execution of some enumerated power; and it being one of the rules of construction which sound reason has adopted; that as exception strengthens the force of a law in cases not excepted, so enumeration weakens it, in cases not enumerated; it follows, as a regular consequence, that every power which concerns the right of the citizen must be construed strictly, where it may operate to infringe or impair his liberty; and liberally, and for his benefit, where it may operate to his security and happiness, the avowed object of the constitution.54
Compounding the hazy profile of unenumerated rights was the judicial ambivalence and uncertainty of US judges of that era. This scenario played out in Calder v. Bull,55 where Justice Chase had affirmed the possibility of invalidating laws and powers that violate rights not enumerated in the US Bill of Rights.56 Even though Justice Iredell had concurred with Chase in that decision, he had, a decade earlier, been a committed protagonist of unenumerated rights. In defending the failure of the Constitution of North Carolina to enumerate rights, Iredell had vehemently argued that:
It would not only be useless, but dangerous, to enumerate a number of rights which are not intended to be given up; because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by the government without usurpation; and it would be impossible to enumerate every one. Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.57
In a number of judicial decisions, the US Supreme Court had alluded to the substantive implications of the Ninth and Tenth Amendments, albeit without settling the philosophical and conceptual questions arising from them.58 The uncertainty came to a head in Griswold v. Connecticut,59 a celebrated decision on the right to privacy which is not listed in the US Bill of Rights, where Justice Arthur Goldberg had lucidly established the basis of unenumerated rights in the following words:
The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments...To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment...Nor do I mean to state that the Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.60
The Connecticut statute prohibiting the use of contraceptives was consequently voided as an infringement of the right of marital privacy. The reasoning in Griswold has found adumbration in a bevy of other cases where the right to privacy, not mentioned anywhere in the US Constitution has been recognized and enforced.61
What, then, is the whole essence of ‘unenumerated rights’ in the provisions of the topical Amendments to the US Constitution? Lund proffers a navigational aid in this foggy terrain:
[T]he…Amendments together serve as an emphatic reminder that the Constitution was designed so as to protect a vast number of unenumerated rights from infringement by the federal government, namely all those rights that the federal government is not authorized to abridge in the exercise of its enumerated powers. Some of them may be natural rights, some are positive rights established by state law, and some are political rights exercised in the course of establishing state law.62
Contrary to the initial reluctance towards unenumerated rights, therefore, US jurists are showing increasing interest in them, extending the scope of rights intrinsically covered. Jon Roland, Founder and President of the Constitution Society, had in his seminal essay posited that the body of unenumerated rights under US constitutionalism covers thirteen categories of rights including right to “recordation of public acts and disclosure of records”; to complete and accurate reports of revenues and expenditures; and the right to travel.63 Others have strongly argued that these rights also cover self defense and gun ownership.64 The US judiciary has also established the existence of a right to welfare assistance for the indigent;65 offered succor to the illegitimate child;66 and protection for the mentally ill.67
While the notion of unenumerated rights has received considerable attention in the US, its philosophical and moral appeal has also engendered somewhat passionate responses, for and against, in other jurisdictions. Although not usually discussed or applied as direct adoption of the US notion of unenumerated rights, the idea manifests in the course of interpreting the constitutions of diverse Anglophone states.68 While there might be more than one reason for this scenario, it however appears that the following statement of Canadian Supreme Court Justice Claire L’Heureux-Dubé captures the picture in convincing light:
As the bonds of colonialism loosened, the prominence of American jurisprudence grew throughout the world. This is particularly true in the field of constitutionalism and human rights. The very concept of judicial review of legislation in accordance with guaranteed rights originated in the U.S. Supreme Court, in the classic case of Marbury v. Madison.69
The scenario of unenumerated rights therefore manifests in two ways: in countries with constitutions “written in language which is brief, sometimes obscure and usually ambiguous.”70 Australia and Canada, with their very old constitutions (1901 and 1867, respectively), fall in this rank. The other mode is in countries with certain constitutional guarantees that are essentially human rights provisions but which are excluded from enforceability. India, Nigeria, and numerous African states of the neo-Nigerian constitutional model belong in this category.71 It will be worthwhile to examine these manifestations in some detail.
It is now beyond polemics that there exists a comparative linkage between the Australian and US Constitutions, at least in terms of their interpretative dynamics.72 An eminent Australian scholar, Craven, had actually argued that
The originalism debate in the United States has largely been fought over the interpretation of the Bill of Rights, with its broad, sweeping guarantees of fundamental human rights. It is in this highly emotive context, the stalking-ground of rights to abortion and to freedom from racial discrimination, that the performance of the Supreme Court has been vilified or defended according to the stance of commentators upon the question of original intent. The Australian Constitution does not include a bill of rights, and so the High Court has not been called upon to deploy its interpretative armory in so controversial a field.73
However, Craven’s contention would appear outdated. Even though Australian Constitution does not have a Bill of Rights, the Australian judiciary, represented by the High Court, has been actively engaged in rights-based constitutional interpretation work. The anchor of the Australian High Court’s forays has been the robust application of the principle of legality, a well-established concept in English common law. Lord Hoffman explained the rationale and essence of the principle vis-à-vis the protection of unenumerated rights this way:
The principle of legality means that Parliament must squarely confront what it is doing and accept the political costs. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.74
This principle has been adopted and applied with approval by Chief Justice Gleeson of Australia;75 Chief Justice Elias of New Zealand;76 Justice Kirby;77 and Justice Tipping.78 The principle has steadily evolved into the bedrock of constitutional interpretation in Australia and New Zealand.79
In a country without a Bill of Rights, the principle of legality has become a tool of establishing separation of powers, rule of law and the protection of human rights in Australia. It has also helped in formulating ascertainable presumptions against any exercise of governmental powers. Among some of the established presumptions based on this principle are that it will never be the intention of the Parliament:
to invade fundamental rights, freedoms and immunities;80
to restrict access to the courts;81
to exclude the right to claims of self-incrimination;82
to deny procedural fairness to persons affected by the exercise of public power;83
to interfere with vested property rights,84 or to alienate property without compensation;85 or
to interfere with equality of religion.86
Following the growing acceptance of this principle, therefore, in Australian Broad. Corp. v. Lenah Game Meats (Lenah Meats),87 for example, Justice Callinan stated that he disagreed with the unanimous decision in Lange v. Australian Broad. Comm’n,88 and proceeded to confirm the existence of an implied constitutional freedom of political communication in Australia. It is noteworthy that the Australian High Court has already extracted some other unenumerated rights from the separation of judicial power effected by the Constitution of the Australian Commonwealth.89
Even though the Republic of Ireland has a written constitution containing a bill of rights, it could not avoid judicial engagement with the subject of unenumerated rights in the course of interpretative activities. The Irish judiciary had introduced the notion of unenumerated rights into Irish constitutional jurisprudence when the court was called upon in 1965 to decide on a claim to the right to bodily integrity under Article 40(3)(1) of the Irish Constitution, 1937 (Bunreacht na hÉireann), in the case of Ryan v. Att’y Gen.90 It will be apt to reproduce the critical content of the said Article 40.
Article 40 Personal Rights
(3.1) The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
(3.2) The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
Rather than define this novel right to bodily integrity, Justice Kenny proclaimed that the origins of unenumerated rights were to be found in the “Christian and Democratic nature of the [Irish] State.”91 Even though on appeal the Supreme Court had considered Justice Kenny’s view as too narrow,92 the apex court had demonstrated in later cases that the “personal rights” of life, good name and property enumerated in the Irish Constitution of 1937 were inexhaustive.93
Both Justice Kenny, who introduced the concept of unenumerated rights into Irish constitutionalism as well as the Supreme Court that glossed over his natural law justification for them have been subjected to robust criticism.94 Hogan decries the notion of unenumerated rights as “practically tantamount to an open invitation to the judiciary to become later day philosopher kings via the guise of Constitutional interpretation.”95
Nevertheless, more than four decades after its inception in Ireland, the sustained application of the concept has vindicated Doolan’s submission that its discovery was “one of the most innovative features of [Irish] Constitutional law.”96 Ample judicial decisions and scholarly pronouncements lend credence to this assertion.
In Macauley v. Minister of Posts and Telegraph,97 the plaintiff had argued that the fact that the fiat of the Attorney-General was necessary before proceedings could be initiated by a citizen against a Minister, whereas a Minister could institute proceedings against a citizen without obtaining such a fiat, constituted an impermissible inequality as between a Minister and a citizen. The plaintiff failed in his equality argument but succeeded on the basis that his unenumerated constitutional right of access to the courts had been infringed.
Similarly, the Irish judiciary had in 1974 extended the scope of unenumerated rights to cover the protection of the unborn child. In McGee v. Att’y General,98 Justice Walsh had applied the unenumerated right of the unborn child to restrict another unenumerated right – to marital privacy. In his words:
Any action on the part of either the husband and wife or of the state to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.99
Whether by statute or by policy, there is no longer any iota of doubt that the unborn child is guaranteed full protection under the Irish Constitution. What more? Beyond the Ryan decision, several rights as diverse as the right to communicate;100 and the right to earn a living,101 have been located within the realm of “personal rights” under Article 40(3) of the Irish Constitution.
It is also important to note that even though Irish Constitution does not recognize socio-economic rights in justiciable form, the Directive Principles of Social Policy contained in Article 45 of the Constitution have presented the courts with opportunity to define the content and scope of unenumerated rights. In Murtagh Properties v. Cleary,102 the right to earn a living was premised on the content of Article 45.103 An Irish scholar has strongly contended that Article 45 holds the ace in resolving the polarization among those in favor or against unenumerated rights in Ireland.104
In the other manifestation of judicial recognition of unenumerated rights, written constitutions do exist, with elaborate human rights provisions (bill of rights), albeit tainted with a genre of provisions usually tagged ‘Directive Principles’, among which the Indian version stands out in the developing world.105 And since these constitutional provisions now variously known across Africa as Fundamental Objectives or Directive Principles were not original to Africa, I must delve into their earliest frameworks for proper understanding of the subject, in this instance, the Indian Constitution.
Part III of the Indian Constitution of 1950106 sets out “Fundamental Rights” encompass the right to equality;107 the rights to freedom of speech, expression, assembly, association, movement and choice of work;108 criminal procedural rights;109 the right to life and personal liberty;110 the right against exploitation;111 the right to freedom of religion;112 minority rights;113 and the right to constitutional remedies.114
In Part IV of the Constitution, there is a cluster of “Directive Principles of State Policy” dealing with such issues as adequate means of livelihood; fair distribution of material resources; equal pay for equal work; health and strength of all citizens; child development;115 equal justice and free legal aid;116 functional village arrangement;117 right to work, to education and to public assistance in certain cases;118 provision of just and humane conditions of work and maternity relief;119 living wage and fair conditions of work for workers;120 participation of workers in industrial management;121 uniform civil code for citizens;122 provision of free and compulsory education for children;123 promotion of educational and economic interests of weaker sections of society;124 duty of the State to raise the level of nutrition and the standard of living;125 organization of agriculture and animal husbandry;126 environmental protection and improvement;127 protection of monuments, places and objects of national importance;128 separation of judiciary from executive;129 and the promotion of international peace and security.130
The summary of the provisions of Part IV can be found in Article 38 that says:
(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of national life.
(2) The State shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.
Article 37 however expresses the non-justiciable status of those provisions as follows: “The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”
The reduction of those provisions into non-justiciable claims had been the product of the protracted political intrigues that beleaguered India during its transition period. As constitutional historian Glanville Austin notes:
Although the Fundamental Rights and Directive Principles appear in the Constitution as distinct entities, it was the [Constituent] Assembly that separated them; the leaders of the Independence Movement had drawn no distinction between the positive and negative obligations of the State. Both types of rights had developed as a common demand, products of the national and social revolutions, of their almost inseparable intertwining, and of the character of Indian politics itself.131
Austin is not alone in the assertion that those provisions were originally meant to be justiciable. As Indian human rights scholar Narively writes, “[t]he prevailing sentiment in the [Indian national] Sub-Committee [on Fundamental Rights and to the Constituent Assembly] was in favor of formulating all rights, including those that later on became the directive principles of state policy, with legal enforceability.”132
Another scholar of the Indian Constitution had explained the essence of the Directive Principles as follows:
The principal object in enacting the directive principles was to set standards of achievement before the legislature and the executive, the local and other authorities, by which their success or failure could be judged. It was also hoped that those failing to implement the directives might receive a rude awakening at the polls.133
Austin’s later statement lends unflinching credence to this assertion, and adds an insight into the philosophical basis of those provisions:
The Directive Principles were a declaration of economic independence, a declaration that the privilege of the colonial era had ended, that the Indian people (through the democratic institutions of the Constitution) had assumed economic as well as political control of the country, and that Indian capitalists should not inherit the empire of British colonialists.134
The judicial interpretation of those directive principles at the earlier stages of the Indian constitutional experience demonstrated how the ossified letters of legal documents could assume vibrant content. While the Supreme Court of India had in 1951 held, inter alia, that “the directive principles have to conform to and run subsidiary to the chapter on fundamental rights”,135 in later years, particularly since the Indian emergency years (1975-1977), Indian courts were to adopt a new, radical and proactive approach to the interpretation of the scope and content of those directive principles.136
Today, Indian courts have established a veritable juridical pedestal in the Directive Principles to address the plight of India’s underprivileged masses, to challenge poverty and deprivation, and to question governmental acts that are capable of fettering the very life, capabilities and aspirations of ordinary Indians.137
Posing the rhetorical question of whether the Directive Principles in the Indian Constitution have “helped to bring Indian society closer to the Constitution’s goal of social, economic, and political justice for all”, Austin concludes thus: “Briefly, the answer is yes.”138 Similarly, in his assessment of the Indian judiciary’s efforts at giving life to the otherwise non-justiciable provisions on Directive Principles in the Indian Constitution, Rao says: “From…a restrictive and narrow definition of human rights, the Supreme Court has expanded the scope of enforceable rights such as the right to life and liberty.”139
It is particularly striking to note that the pivot of the Indian judicial approach to the expansive and proactive interpretation of fundamental rights have been the Directive Principles, which, technically speaking, are non-justiciable. The Supreme Court has resoundingly reaffirmed the status of the Directive Principles as being the non-negotiable corollary of fundamental human rights.140 This reconceptualization has meant a sustained commitment to the integrative approach to all human rights in Indian courts. A long line of cases demonstrates this assertion.
In the groundbreaking case of Maneka Ghandi v. Union of India,141 the applicant’s passport had been seized by the authorities pursuant to the Emergency Orders of that period, and thus, she had been denied the opportunity to travel abroad. Observing that any procedure affecting any human rights must not be “arbitrary, fanciful or oppressive”,142 the Indian Supreme Court seized the opportunity of Ghandi to affirm that the right to life entrenched in Article 21 of the Indian Constitution also covers the right to travel abroad.
This case was to mark a historic defining moment for the Indian judiciary as well as human rights protection in years to follow.143 While Ghandi had arisen as an action in defense of the right to personal liberty, its broader effects have been felt in the areas of criminal justice, judicial review, contracts, ecology, fundamental rights as well as other “implied fundamental rights” including education, legal aid, pollution-free environment, livelihood and human dignity.144 The proactive approach of the Indian judiciary to many questions involving social justice, individual liberty, human development, labor rights and poverty alleviation has been the offshoot of the judiciary’s commitment to a creative interpretative process that considers a fundamental human right to “mean merely animal existence [when it is bereft of] human dignity.”145
Thus, in Olga Tellis v. Bombay Mun. Corp.,146 the petitioners who were slum dwellers had petitioned against their forcible eviction by the defendant corporation, alleging a violation of their right to life under Article 21. The Supreme Court held that the right to life conferred by Article 21 of the Indian Constitution extends to the right to livelihood, and that in this particular instance, the eviction of the slum dwellers will deprive them of livelihood, and invariably, life. Even though the applicants had failed to demand that the corporation allows the slum dwellers to show why they should not be evicted, the court ordered that further evictions must cease until the end of the prevailing monsoon season, to mitigate their hardship.147 The court explained the basis of its decision as follows:
The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law…An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life.148
The Indian judiciary has consistently shown in many other instances that it will not abandon the helpless to the vicissitudes of life. In Samity v. State of West Bengal,149 involving a petitioner who had suffered serious cerebral injuries occasioned by a train accident, the Supreme Court held that under Article 21, he had a right to “timely medical treatment.”150
The effect of the proactive stance of the Indian judiciary has also been felt in the fields of industrial, labor and trade practices.151 In a slew of cases, for instance, the Supreme Court has held that the “equal pay for equal work” principle in Article 39(d) of the Indian Constitution is within the expanded scope of Articles 14 and 21.152
Also, in Randhirin Shri Literam Sugar Co. Ltd. v. Union of India,153 citing the directive principles, the Supreme Court held that the price control on foodstuffs was in the public interest.154
The manner of consistency and clarity with which the Indian Supreme Court has been administering social justice through its efficacious protection of the ‘implied’ rights in the Indian Constitution has led a scholar to proclaim that “after Maneka Ghandi’s case the Court began to apply the fair and reasonable requirements of law not only to deprivation of life but also to the well-ordered concept of human dignity and life.”155
By virtue of shared British colonial heritage and common law traditions, the Indian approach to human rights certainly portends strategic implications for other countries of the developing world, especially those in Anglophone Africa.
The Indian constitutional design of directive principles had gained the attention of constitutional drafters in Indonesia in 1951, Nepal in 1962, and Sri Lanka in 1972.156 For Africa, Nigeria led the way in 1979 with its Second Republican Constitution.157 That Constitution provided a litany of principles that would guide the administration of the Nigerian polity towards the general good (sections 13-22).158 Those objectives and principles were essentially a set of guidelines designed to secure the ‘national’ targets of social well-being, social justice, political stability, and economic growth in accordance with the espoused vision of the Preamble to the Constitution.159
During the drafting stages of the CFRN 1979, Emovon, a Nigerian scholar, had justified the inclusion of these objectives as follows:
Fundamental Objectives refer to a set of social ideals which are semi-justiciable and designed as targets towards which the country must aim. They define a goal for the Nation without which this country would drift as it appeared to have done in the past. In a country as vast and heterogeneous as Nigeria where we still have primacy of local interests and where the people have…different historical, cultural and religious backgrounds, it has become necessary to spell out in detail the basic principles of the State for the guidance of Government.160
While those Fundamental Objectives could have passed as one of the most innovative dimensions in the history of constitution making in Nigeria, they are prone to becoming worthless platitudes because of their emasculated constitutional status.161 An overriding provision of the same Constitution nullifies their legal value:
6(1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.
(6) The judicial powers vested in accordance with the foregoing provisions of this section
(c) shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution….162
It naturally follows, from the above ouster clause, that all the promises of the Objectives and Principles in Chapter II of the CFRN serve no better purpose than British coronation oath: mere moral appeal. The decisions of Nigerian courts, as far as the status of those provisions is concerned, were unequivocal in confining those provisions to the realm of principles that may only appeal to the morality of any government in power.163
The idea of non-justiciable constitutional provisions had indeed become Nigeria’s legacy for constitutionalism in Africa. After the debut in 1979, political power brokers in other African countries had found a leeway out of rights-based accountability to their peoples. Thus, at independence, Zimbabwe (1980)164 and Namibia (1990)165 must have looked up to the Nigerian constitutional model of 1979 in drafting their versions of fundamental objectives that mirror the Nigerian model almost verbatim.166 The constitutional model of Directive Principles was to fascinate many other African countries in the years that followed. Many African Constitutions are now replete with provisions identical to the neo-Nigerian paradigm. These are: Botswana, 1992;167 Eritrea, 1997;168 the Gambia, 1994;169 Ghana, 1992;170 Lesotho, 1993;171 Liberia, 1984;172 Malawi, 1995;173 Sierra Leone, 1991;174 Tanzania, 1984;175 Uganda, 1995;176 and Zambia, 1991.177 Common to all those constitutional provisions is their non-justiciability because of language similar to that found in section 6(6)(c) of the Nigerian model.178