The Invisible Constitution in Comparative Perspective

Rosalind Dixon and Adrienne Stone

but is often over-looked, in decisions such as the Secession Reference Case 

and  Congo Case. In the Secession Reference Case, Schneiderman suggests, 

the SCC was under clear institutional stress: it faced a constitutional chal-

lenge of tremendous significance and a direct challenge to its legitimacy. 

The government of Quebec refused to recognise the Court’s jurisdiction to 

hear the case, even though it directly implicated the status of Quebec as a 

province of Canada. The Supreme Court’s decision to identify various well- 

accepted constitutional principles – such as federalism, democracy, constitu-

tionalism and the rule of law – as unwritten provided an important means of 

legitimising its reliance on other, far less well accepted principles (i.e., a duty 

to negotiate) as also unwritten in nature. And in the Congo Case, Chan sug-

gests that the Hong Kong CFA was responding to a desire to preserve its own 

perceived integrity and effectiveness by avoiding a repeat of an earlier decision 

in Ng Ka Ling v. Director of Immigration (the right of abode case) in which 

it was immediately overruled by the committee, without any clear or open 

consideration of its reasoning.

30

1.2.2.  The Invisible Constitution: Unanswered 

Questions and Future Directions

When we set out to investigate the idea of the invisible constitution in a com-

parative context we were unsure as to how far the metaphor would take us: as 

the excellent contributions to this book attest to, the answer is very far indeed. 

We are also particularly pleased that in their combined focus on the Asia-

Pacific region, the various contributions to the volume help de-centre many 

of our prevailing habits in comparative constitutional scholarship. It may be 

somewhat overstated to say that comparative constitutional scholarship sys-

tematically overlooks the experiences of the ‘Global South’,

31

 but there is still 

a clear tendency in comparative scholarship to privilege the experiences of 

Europe and North America or the Anglo-American world, at the expense of a 

deeper and richer engagement with the experiences of Asia, Africa and Latin 

America. We are thus extremely pleased that both in the genesis of this vol-

ume, and its final layout, we are able to contribute to a form of comparative 

30 

(2001) 4 HKCFAR 211.

31 

Ran  Hirschl,  Comparative Matters: The Renaissance of Comparative Constitutional Law  

(Oxford: Oxford University Press, 2014). Cf Daniel Bonilla Maldonado (ed.), Constitutional-

ism of the Global South: The Activist Tribunals on India, South Africa and Colombia (Cam-

bridge: Cambridge University Press, 2013).

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The Invisible Constitution in Comparative Perspective 

19

constitutional law scholarship that is truly global in nature, but that also begins –  

rather than ends – with the experiences of countries in the Global South.

32

We also acknowledge, however, that there remain important outstanding 

questions about the idea of the ‘invisible constitution’ in comparative perspec-

tive, which the book does not fully address. The book clearly does not cover all 

or even nearly all relevant comparative case studies nor does it systematically 

address at least two important questions: one, how the scope or desirability of 

the invisible constitution may be shaped by the relative age, specificity and 

flexibility of a written constitution; and second, how various national consti-

tutions interact with each other in the domain of the invisible constitution.

It seems quite plausible, for instance, that both the likelihood and legitimacy 

of various extra-textual constitutional influences may depend in part on the 

relative age, specificity and flexibility of a constitutional text. The more specific 

a constitutional document, the weaker the case will often be for wide-ranging 

extra-textual constitutional reference; whereas the more open-textured it is, 

the more legitimate it will be. Similarly, the more recent a constitutional doc-

ument, the less persuasive the case may be for such influence; whereas the 

older a written instrument, the more legitimate such influences may be. The 

same pattern or argument could also apply to the difficulty of amending a 

written constitution: formal procedures for constitutional amendment allow 

a means of updating a constitutional text in ways that reduce the pressure for 

extra-textual constitutional influence or ‘implication’ by a court.

33

 They may 

also offer a potential mechanism for overriding a court decision.

34

 Thus, while 

judicial interpretation and amendment may not be perfect substitutes, either 

normatively or empirically, the scope of legitimate judicial decision-making 

may still be conditioned to some degree on the formal and practical availabil-

ity of powers of constitutional amendment.

35

These are issues that contributors touch on at various points: Iddo Porat, for 

example, notes the recent and quite deliberate nature of constitutional choices  

32 

We wish to acknowledge in this context the extremely valuable support of the IACL, Mel-

bourne Law School and the UNSW Faculty of Law, in making possible the IACL Roundtable 

at Melbourne Law School (2–3 May 2016) that preceded this collection.

33 

Rosalind  Dixon, ‘Constitutional Amendment Rules: A Comparative Perspective’ in Tom 

Ginsburg and Rosalind Dixon (eds.), Comparative Constitutional Law (Cheltenham: Edward 

Elgar, 2011) 96–111.

34 

We do not to date have an adequate understanding of the complex nature of the relationship 

between the implied or extra-textual nature of various constitutional norms or practices, and 

their susceptibility to formal constitutional override by way of amendment: cf. Rosalind Dixon 

and  Adrienne  Stone ‘Constitutional Amendment and Political Constitutionalism: A Philo-

sophical and Comparative Reflection’, David Dyzenhaus and Malcolm Thorburn (eds.), Phil-