The Power of Constitutional Interpretation - Research Paper Example

Constitutional Interpretation Introduction: The power of constitutional interpretation and the provision of judicial review are important instruments in the hands of modern judiciary and these are used quite effectively in case of solving various issues that are associated mainly with fundamental rights of common people as enshrined under constitution of a particular nation or to broaden or to restrict the horizon of legal interpretation that permits or restrains common people or governmental institutions from being indulged into any such activities that could alter the basic structure of the constitution. In this context, it automatically becomes important to receive a general idea regarding what a constitution is and its importance within in the domain of determining legal functionality in the context of a nation. Literal analysis of the word “Constitution” refers to certain basic ideologies or fundamental issues that construct a system or any establishment or an institution or any other forms of creations. As the basic issues of any kind of creation act as its foundation, thus, changes in those fundamental aspects automatically lead to change in the nature of the entire construction of the system and consequently it also is natural that due to such changes in the fundamental issues altered form of the construction, establishment or the system might create several confusions that might not produce equal level of effectiveness, compared to the benefits of the original structure. When it comes to application of the term “constitution” in legal and system of governance of a nation, it can be defined as the “…entirely of fundamental institutions and laws by which the actions of Government (administration), and the citizens are regulated” (cited in Ghose, 2006, p. 51). It becomes clear through such definition that constitution of a nation is the basic foundation of the legal system that orients both common people and system of governance. It is the supreme entity that determines what should be defined as legal and how protection of the legality or legitimacy can be protected both by common people or institutions, respectively and conjointly, to churn out best social interest. The time, when a region receives its status as an independent sovereign, it becomes important to develop the Constitution with the aim that it would act as principal guideline in order to ensure proper functionality of all wings of social governing, namely, legislative, administrative and judiciary. Each one of these divisions has their respective powers and none is above the other. In the context of performing their respective actions, it has been witnessed on frequent occasions that their actions would overlap and conflict, consequently leading to issues related to breaching of fundamental rights of the common people. The Constitution specifically determines the scope of power of each entity and finally helps in resolving such confusions with the purpose of protecting rights of common people. However, the capacity of interpreting constitution and indicating the specific scope of determining power of each governmental system lies exclusively in the hands of judiciary. The changing course of time comes up with different challenges for the legal system of a nation and unless those issues are addressed from the perspective of changing socio-legal liberalism, it becomes really tough to sort out a proper solution to the problems. Thus, the judicial system of a nation provides a great deal of importance to the issue of constitutional interpretation. Interpretations made by the judiciary opens up new horizon of constitutional provisions and consequently also helps in making the scope of constitutional application flexible so that issues changing forms of legal challenges can be addressed with proper jurisprudential rational. An analysis of the landmark judgment, Kartinyeri v. The Commonwealth of Australia [1998] HCA 22, with special focus on some of the basic questions related to constitutional interpretation would clearly show the importance of constitutional interpretation. Certain Basic considerations of Constitutional Interpretation: Evaluating them in Kartinyeri v. The Commonwealth of Australia The plaintiffs in the case, Kartinyeri v.The Commonwealth of Australia, Doreen Kartinyeri and Neville Gollan filed a claim in the Adelaide High Court against the Commonwealth of Australia with the argument that the Ngarrindjeri people actually belong as members of Aboriginal race. The claim of the plaintiffs also included that declaration made by the minister of Aboriginal and Torres Strait Islander under section 10 of the Aboriginal and Torres Strait islander Heritage Protection Act, 1984, have been set aside by the Federal Court of Australia and later on, in response to the plaintiff’s appeal to protect the spiritual ambiance of the area, complete passivity was noticed on part of the government with special reference to the fact that the Hindmarsh Island Bridge Act 1997 would prevent the concerned ministry to take any such actions that the plaintiffs claimed for in their application to the ministry. The Section 51 (xxvi) of the Australian Commonwealth Constitution empowers the Parliament to fame any such law that would benefit “people of any race, other than aboriginal race in any State, for whom it is deemed necessary to make special law” (Kartinyeri v.The Commonwealth, 1998, p. 337). The allegation of plaintiffs was based on the main principle that passivity of the government to frame new law for people belonging to Aboriginal race and legal prohibition, as encompassed by the Hindmarsh Island Bridge Act 1997 are actually violating fundamental rights of common people, despite the fact that they are members of a particular section of the society. As the Constitution provides sufficient scope to all people regarding complete enjoyment of their social rights and civil liberty, such governmental passivity and legal prohibition are clearly ultra-vires of the constitutional provisions. The basic problem clearly indicates the fact that proper interpretation of the constitutional provisions is necessary as certain legal frameworks have raised questions regarding application of the constitutional provisions in such a way that those are antithetical towards basic structure of the constitutional set up. It has always been suggested by jurists that fundamental structure of the constitutional cannot be altered any such actions, either by government or by common people that attempt to alter the basic constitutional structure, should be rejected. In this context, the case of Kartinyeri v.The Commonwealth is of immense importance. According to the judgment of Gaudron J. the operation of Bridge Act will become clear once it is realized with reference to the Aboriginal and Torres Strait Islander Heritage Protection Act, 1984, and in this context he has started to interpret the constitution with literal analysis of the s. 9 and 10 of the said Act. While, under both these sections the issue of “significant Aboriginal areas [s]” has attracted special attention, Gaudron J. feels that under scope of s. 3 of the same Act, literal analysis of the same section gives three different meanings to the phrase “significant Aboriginal area”, such as, “(a) an area of land in Australia or in or beneath Australian waters; (b) an area of water in Australia; or (c) an area of Australian waters” (Kartinyeri v.The Commonwealth, 1998, p. 359). In becomes clear through such analysis that though the judge has provided considerable importance over the process of literal analysis, at the same time, he did not strictly follow only one possibility to interpret the constitution; rather the liberal approach towards providing equal importance over all the possibilities that such layers of meaning could have provided have been carefully taken into consideration. The issue of validity of the Bridge Act to a great extent, according to Gaudron J, is dependent on s. 4 of the Heritage Protection Act that confers certain powers to the authority and also restricts it from performing certain actions. The issue of conflict exists in the fact that while the Commonwealth Constitution, under s. 51 (xxvi) empowers the government with capacity to make laws for people of any race in case it becomes necessary, the Heritage Protection Act contradicts such scope. In this context, the 1967 constitutional amendment has attracted special attention from the judge as it removed the words “other than the aboriginal race in any State” (Kartinyeri v.The Commonwealth, 1998, p. 362). In clear words the judge has suggested that the “…amendment was apt to achieve those purposes … to treat s. 51 (xxvi) as limited to laws which benefit Aboriginal Australians if it is not similarly limited with respect to the people of other races” (Kartinyeri v.The Commonwealth, 1998, p. 362). It becomes clear from the observation that constitutional standards that existed prior to the 1967 amendment, were to some extent biased and also encouraged the aspect of racial discrimination, whereas the post 1967 constitutional standard cleared all such possibilities and also aimed at removing all possibilities of constitutional bias on one hand, and on the other, empower the Parliament to make any such law that could benefit Aboriginal race. Throughout his discussion, the judge has emphasized on the point that people of Aboriginal race should not regarded as any different from people different from general course of the society, rather they should be regarded as general people, and as the s. 51 (xxvi) authorizes the Parliament to enact laws for general application, not just for people belonging to any particular race, thus, the validity of the section remains relevant in the current context. Thus, finally to the question of the Chief Justice, whether the Bridge Act is invalid or not and if it exists in contradiction with the Constitution, he has gone against the motion. During the course of his interpretation, he has provided special emphasis on syntax and literal interpretation of the constitution but never has escaped the scope of interpreting the constitution from flexible perspective. Through literal analysis of the text the judge has attempted to find different layers of meanings that are incorporated with the constitutional provisions and at the same time and such exploration of meaning helped him to reach the conclusion. In their judgment, Gummow and Hayne JJ., have taken different aspects into consideration and they have not limited their interpretation simply within textual analysis of the Acts. While reflecting over the issue of constitutional validity of Bridge Act, they have focused on certain basic propositions and taken into consideration the basic proposition that “… there is no general requirement that Commonwealth laws should have a uniform operation throughout the Commonwealth, nor is there any general impediment to the Parliament distinguishing between the different needs or responsibilities of different people or different localities” (Kartinyeri v.The Commonwealth, 1998, p. 371). While discussing validity of the Bridge Act, the judges have agreed that “The first submission by the plaintiffs … found support by s. 51 (xxvi). This was because, whilst the Ngarrindjeri people are members of the Aboriginal race, they do not constitute the entirety of that race, and s. 51 (xxvi) requires a law to answer the description…” (Kartinyeri v.The Commonwealth, 1998, p. 377) and they are also of opinion that such support should be encouraged for the purpose of supporting the issue of general benefit rather than only a particular section of people belonging to a particular race. They have specified that as the Constitution has the fundamental role to play in the context of dressing both social and economic affairs, that is why contention of plaintiffs “would cripple reach of the legislative power to deal with social, economic or other conditions which particularly afflicted certain members or groups of Aboriginals” (Kartinyeri v.The Commonwealth, 1998, p. 377). Kirby J., in the very beginning of deliverance of his judgment has argued that “This case is about the race and power in s. 51 (xxvi) (par (xxvi)) of the Australian Constitution (Kartinyeri v.The Commonwealth, 1998, p. 386). The judge also has provided considerable importance on issues from diverse perspectives to analyze the constitution and in this context he has classified arguments of the plaintiffs from five different perspectives, namely, “The subgroup point”, “The discriminatory law point”, “The Aboriginal benefit point”, “The Interpretive principle point” and finally, “The repeal/amendment point”. However, contending approach of the plaintiffs, the judge has specified that the Heritage Protection Act was actually for all people belonging to Aboriginal people throughout Australia. Despite the fact that under purview of the Bridge Act, whether it is read “alone or in conjunction with the Heritage Protection Act” that it is only for people from Ngarrindjeri tribe, the argument of plaintiffs can be challenged if the idea of race, as specified under s. 51 (xxvi) is taken into consideration. The judge, on the other hand, has interpreted the meaning of “race” as laid down in the Constitution from a broader perspective. Rather than just being confined within textual analysis of the term and the limited scope as it apparently reflects, which has been focused upon by the plaintiffs, Kirby J is of opinion that “A people were linked by biological factors … according to which they would identify themselves as the people of a given race” (Kartinyeri v.The Commonwealth, 1998, p. 394). He also has supported his interpretation of the Constitution in such manner with clear suggestion that “Unless such a broad view of the essential characteristic of “race” were taken in relation to par (xxvi) …. The phrase would then be robbed of any real constitutional content” (Kartinyeri v.The Commonwealth, 1998, p. 394). While giving highest importance to such flexibility of interpretation, he declares that argument of plaintiffs is insubstantial and interpreting the Constitutional provision of making “special laws” with reference to s 51 (xxvi) receives a strong foundation that making of special laws are not ultra-vires to Constitutional provisions when it comes to securing best interests of “rural Aboriginals, Aboriginal children, Aboriginal health in particular places, Aboriginals in disadvantaged areas and so on” (Kartinyeri v.The Commonwealth, 1998, p. 395) . Conclusion: The power of constitutional interpretation provides the judiciary, as well as other wings of the social governance with the scope to realize whether enactment of a particular Act is serving the best interest of common people or not; additionally, it also provides a close purview to the entire system to analyze the fact that to which extent an existing Act is capable of serving social needs under changing circumstances. In the case of Kartinyeri v.The Commonwealth, while challenges have been made towards pointing out applicability of the Bridge Act and also, on a broader scope, questioning the basic principles of human rights as enshrined by the Constitution, by exploring the layers of meaning as incorporated under constitutional provision the Court has reached the conclusion that legal ambit of the Bridge Act is not ultra-vires to the Constitution and it has the capacity to restrict operation of the Heritage Protection Act. References Ghose, A.K. 2006. Principles of Civil Government. London: READ BOOKS. Kartinyeri v. The Commonwealth of Australia [1998] HCA 22. Read More