16
Rosalind Dixon and Adrienne Stone
of implementing or concretizing constitutional meaning to legislatures rather
than courts.
29
He also notes the degree to which the Federal Constitutional
Court of Germany avoids reliance on dissent, attempts to systemize its deci-
sions through structured forms of proportionality reasoning and other doc-
trines. Ultimately, he acknowledges the clear traffic or dialogue between civil
and common law traditions within the German constitutional context, but in
doing so also points to legal tradition as a critical dimension to our understand-
ing of the invisible constitution. We cannot, he suggests, properly understand
a written constitutional system without attention to the background legal con-
text and traditions within which it operates.
1.2.1.3. An External Viewpoint: Explaining the Invisible Constitution
Another set of contributions are more positive or empirical in nature. Caitlin
Goss, in her chapter on interim constitutions, suggests that as a positive,
political matter, interim constitutions will often create political dynamics or
interests that will push for the retention of institutional features found in pre-
vious supposedly ‘interim’ constitutions. Butt, in his chapter on Indonesia,
notes what he regards as a surprising absence of controversy surrounding the
implication of criminal due process rights in the Indonesian Constitution and
connects that observation to a range of important context-specific factors. At
the same time, Butt suggests that another explanation for the non-controversy
surrounding the making of constitutional implications in Indonesia may lie in
their very invisibility to broader constitutional actors – i.e., the non-salience
for citizens and elected political officials of relevant constitutional decisions.
He also points to the relatively clear connection between those rights and
prior statutory entitlements in Indonesia and a trajectory of judicial decisions
involving at least partial retreat, rather than simply ongoing expansion of
such implications. The implication of various criminal due process rights,
Butt notes, continued steadily under the Chief Justiceships of both Asshidique
(2003–8) and Mahfud (2008–13), but has seemingly come to a halt under the
subsequent three Chief Justices.
Tew and Chan, in writing about Malaysia and Hong Kong respectively, note
the relationship between debates over originalist versus evolving approaches
to interpretation or continuity versus change in constitutional practice, as an
important factor shaping the substantive content of the invisible constitution.
29
Compare Rosalind Dixon and Tom Ginsburg, ‘Deciding Not to Decide: Deferral in Constitu-
tional Design’ (2011) 9
International Journal of Constitutional Law 636–72 (distinguishing by
law clauses from more abstract delegations to courts).
The Invisible Constitution in Comparative Perspective
17
Tew notes that in the Malaysian context, evolving approaches to interpreta-
tion have often favoured the priority given to Islamic constitutional ideals,
whereas a more strictly originalist or purposive approach has tended to sup-
port a stronger emphasis on liberal-secular constitutional values. Chan like-
wise notes that, in Hong Kong, a commitment to legal continuity tends to
favour common law legal principles and thus also a commitment to ‘liberty
and freedom under the common law system’, where an emphasis on constitu-
tional change will often favour mainland constitutional principles.
In analysing the quite different approach to proportionality doctrine in Hong
Kong and Macau, Chen and Lo identify a number of potential contributing
factors: the greater role of foreign law in the drafting of the Hong Kong Basic
Law compared to that in Macau, the role of judges who are foreign nationals
(and often prominent judges from other common law or constitutional juris-
dictions) on the Hong Kong CFA and the greater linguistic challenges to ongo-
ing foreign influence, in the form of a robust doctrine of proportionality, in
Macau (where the legal system operates in Chinese and Portuguese) compared
to Hong Kong (with a legal system operating in English). They also note that
differences in the size of the two jurisdictions is a factor contributing to the
relative number of opportunities for the development of a robust proportional-
ity-based constitutional jurisprudence and the relatively conservative nature of
the legal and judicial elite in Macau, compared to Hong Kong.
Similarly, in analysing the trajectory of constitutional implications in
Australia, Dixon and Appleby identify a complex range of structural and
socio-cultural factors as underpinning this trajectory. At the outset, they note a
marked contrast between the approach of the High Court of Australia (HCA)
to structural and rights-based constitutional implications: in a structural con-
text, they suggest, the HCA has been quite willing to recognise a range of
implications (such as those relating to federalism, the separation of powers
and even political democracy), whereas in the context of individual rights,
the court has consistently declined to recognise various implications. They
further argue that this reflects a complex, intersecting set of influences – i.e.,
the limited express recognition of rights under the Australian Constitution or
weak support in the text and structure of the Australian Constitution for indi-
vidual rights-based protections; the ‘slippery slope’ argument this creates in
individual cases in which the HCA is asked to recognise a rights-based impli-
cation; and the specific historical and legal-cultural influences in Australia,
which make it important for the HCA closely to anchor judicially enforced
implications in the text and structure itself.
Chan and Schneiderman also make interesting observations as to the kinds
of dynamics underpinning the kind of strategic judicial calculus they observe,
