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Caitlin Goss
shared intention of improving the practice of interpreting, reviewing, writing
or amending constitutions’.
104
Of course, it is not a characteristic unique to interim constitutions that they
sometimes require courts to make political decisions about the application of
the constitution that tend to rely on extra-textual justification. However, what
is unusual is that courts in interim settings have a tendency to be engaged with
the existence and drafting or adoption of the constitution itself or its successor.
It is not yet apparent whether the interim-era invisible constitution, including
its emphasis on necessity and the dialogic relationship of the Court and the
legislature, will endure under the new constitution.
In Albania, the Constitutional Court was created not at the beginning of
the interim era, but following April 1992 amendments to the constitution; it
represented the first time in Albania’s history that it had had a constitutional
court.
105
The Court issued some important decisions that displayed its inde-
pendence and indicated a willingness to take an ‘interventionist approach’ on
some matters.
106
However, at times the Court’s independence was less assured;
in 1995 it approved legislation which changed the procedure for constitu-
tional amendment which clearly went against the terms of the Constitution.
As Ordolli has argued, the Court’s approach in the case was not convincing
and it ended up with an interpretation far from the reality of the Albanian
constitution.
107
6.4. Concluding Observations
In this chapter, I have explored the ways in which interim constitutions can
generate unwritten or invisible, but nonetheless significant, constitutional
norms. I want to make three concluding observations about the significance
of this link between interim constitutions and the development of the invisi-
ble constitution. The first relates to the relationship between amendment of
interim constitutions and the development of the invisible constitution. The
second concerns the implications of my analysis about the enduring effects of
interim constitutions for constitution-drafters. The third is an idea about what
a popular invisible constitution might involve.
104
Anne Meuwese and Marnix Snel, ‘“Constitutional Dialogue”: An Overview’ (2013) 9 Utretcht
Law Review 123, 126.
105
Stiliano Ordolli, Histoire constitutionelle de l’Albanie: des origines à nos jours (Geneva:
Schulthess, 2008), 347.
106
John Paul Jones, ‘The Tribunal in Tirana (the New Constitutional Courts: Albania)’ (1993) 2
Eastern European Constitutional Review 52.
107
Ordolli, Supra note 105, 372–3.
Interim Constitutions and the Invisible Constitution
189
Intuitively, it might seem that interim constitutions would have low lev-
els of amendment. As short-lived documents whose expiry is planned, the
demand for constitutional change in an interim-era might be expected to
be low.
108
Further, it might be supposed that a high level of amendment and
the development of an invisible or expansive constitution would have an
inverse relationship, with one obviating the need for the other. Neither of
these intuitions is borne out on an analysis of the literature. Interim consti-
tutions often experience high rates of amendment: the fluidity and in some
cases volatility of political and constitutional circumstances in states adopt-
ing interim texts can be such that the rate of social change or the mismatch
between the constitution and the polity can emerge quickly.
109
Moreover, as
Ginsburg and Melton have shown with ordinary constitutions, the ‘presence
of judicial review actually increases the amendment rate’.
110
There are several reasons why amendments might be adopted, even during
a short-lived interim constitutional period. In some cases, a high rate of con-
stitutional amendment, as in South Africa, can be a sign of a democratic and
effective drafting process and a climate in which political actors hew closely to
constitutional norms. In other cases, high rates of constitutional amendment
can be a sign of dysfunction, as seen in the twelve amendments introduced in
Nepal. In Albania there was a tendency for ordinary politics to bleed into con-
stitutional debates; in one instance the near-collapse of the country’s economy
due to a massive pyramid scheme necessitated a constitutional amendment.
111
The Sudanese constitution has, on paper, a relatively high bar for amendment
of the interim constitution: a three-quarters majority of ‘each Chamber of the
National Legislature sitting separately and only after introduction of the draft
amendment at least two months prior to deliberations’.
112
However, in practice
the three-quarters majority required by s224(1) has operated as a mere formal-
ity, given the 90 per cent majority of the party of the President of Sudan,
Al-Bashir. As such, several significant amendments have been introduced.
It does not appear that a high rate of amendment discourages the develop-
ment of an expansive invisible constitution or that it eliminates the evolution
of an active constitutional court. In fact in some cases, as seen in the example
108
Tom Ginsburg and James Melton, ‘Does the Constitutional Amendment Rule Matter at All?
Amendment Cultures and the Challenges of Measuring Amendment Difficulty’ (2014) Coa-
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