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Interim Constitutions and the Invisible Constitution
181
amendment and instability can lead to the Court attempting to define an
invisible constitution that endures beyond the daily fluctuations of parliamen-
tary politics.
In this section, I explore several case studies to demonstrate instances in
which courts interpreting interim constitutions have referred to non-textual
matters in their reasoning. This analysis necessarily focuses on case studies in
which constitutional courts have been created and have in fact heard cases
on significant constitutional matters. As such, my focus is on Poland, Albania,
Hungary, Nepal and South Africa. In other states, particularly those where a
‘sham’ constitution prevails, including Sudan, constitutional courts have not
played such a great role.
58
In these decisions, some similar non-textual themes recur. In many instances
courts operating in interim periods make explicit reference to non-textual fac-
tors, including: the history and politics of the state prior to the adoption of
the interim constitution; the circumstances and public discourse surrounding
the drafting of the interim text; and the nature of the interim constitutional
period.
The South African Interim Constitution (‘SA-IC’) created a Constitutional
Court and required that the final constitution would have to be ‘certified’ by
the Court, in accordance with thirty-four binding Constitutional Principles
(‘CPs’).
59
The CPs are crucial to the legal structure
60
and ‘solemn pact’ of
the interim constitution.
61
As Siri Gloppen observes, the interim constitution
‘gives no details of the [certification] procedure, [and] only states that the
outcome is final and binding’.
62
This method of constitutional certification
was ‘unprecedented’.
63
The Court took a wide view of its task and powers in
the Certification, stating that ‘[t]o do [the Certification], one must place the
undertaking in its proper historical, political and legal context; and, in doing
so, the essence of the country’s constitutional transition, the respective roles
58
David S. Law and Mila Versteeg, ‘Sham Constitutions’ (2013) 101 California Law Review
863.
59
The Namibian Constituent Assembly had, in 1989, adopted a set of principles emerging from
a UN Security Council Resolution as guidelines in its constitutional drafting, but South Africa
was the first to adopt binding principles.
60
Interim Constitution of the Republic of South Africa, note 26.
61
Ibid.
, Preamble.
62
Siri Gloppen, South Africa: The Battle over the Constitution (Hanover: Dartmouth Publishing
Co., 1997), 208.
63
Certification of the Constitution of the Republic of South Africa (1996) 4 SA 744 (Constitutional
Court of South Africa) [1].
182
Caitlin Goss
of the political entities involved and the applicable legal principles and termi-
nology must be identified and described’.
64
In its judgment, the Court recounted the history of apartheid in South
Africa, the ‘remarkabl[e]’ peaceful transition of power and the role of the
Interim text as an ‘historic bridge between the past of a deeply divided . . .
and a future founded on the recognition of human rights, democracy and
peaceful co-existence and development opportunities for all South Africans’.
65
However, the precise nature of the Certification task was not elucidated in the
Constitution, and so the Court had to define its role.
66
The Court clarified that
its role was a judicial not a political one, stating that the ‘wisdom or otherwise
of any provision of the NT [new text] is not this Court’s business’.
67
However,
as Ebrahim and Miller have noted, ‘the [CPs] were essentially political agree-
ments among parties bringing an end to conflict . . . [and] a fair amount of the
thirty-four principles could be interpreted in various ways’.
68
The Court’s interpretative approach was expressly purposive and teleo-
logical, directed at the constitutional commitment to ‘create a new order’,
based on ‘a sovereign and democratic constitutional state’ in which ‘all citi-
zens’ are ‘able to enjoy and exercise their fundamental rights and freedoms’.
69
Eschewing an approach of ‘technical rigidity’,
70
the Court favoured an ‘holistic’
and ‘integrated’ interpretation of the CPs.
71
In its ruling, the Court, ‘mindful . . .
not to cast too dark a shadow on the text’ emphasised that the vast majority of
provisions did comply with the CPs.
72
However, it refused to certify
73
the NT,
having found a series of provisions that did not comply with the CPs,
74
with
some provisions failing to comply with multiple CPs.
The Constitutional Court’s interim-era human rights jurisprudence has
also demonstrated a reliance on non-textual features and these ‘invisible’
constitutional features have endured under the permanent constitution. One
prominent example is the South African case of S v. Makwanyane and Another
64
Ibid.
65
Ibid.
, 10.
66
Ibid.
, 26.
67
Ibid.
, 27.
68
Hassen Ebrahim and Laurel E. Miller, ‘Creating the Birth Certificate of a New South Africa:
Constitution Making after Apartheid’ in Laurel E. Miller (ed.) Framing the State in Times of
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