The Constitutional Judge’s Interpretation and his Role in the Development of the Law
Prof. Mohammed Fawzi Nweiji
Prof. Abdul Hafiz Ali Al Shimi
Faculty of Law – University of Qatar
Abstract:
The interpretation of the Constitution is undeniably distinctive from other forms of legal interpretations. This particularity stems from the fact that constitutional judges, unlike their counterparts, should, while interpreting the Constitution, strive to adapt constitutional provisions to contemporary social, economic and political changes. Therefore, constitutional judges should always regard their national constitution as a living document that is capable, all the time, of responding to the community’s interests one hand and of ensuring the preeminence rule of law on the other hand.
It is important to note, however, that the authority of constitutional judges to employ this interpretive technique is not to overlap with discretionary power of the legislature. In other words, this interpretive technique should not pave the way to constitutional judges to insert their subjective views or opinions at the expense of the legislature will. Quite the contrary, constitutional courts should, by way of interpretation, ensure full harmonization between existing legislations and constitutional provisions. In doing so, courts, in constitutional litigations, must not only limit their judicial review to the wordings of the legislative texts solely, rather courts must deal with lacunas in legislative texts by examining the legislative ends so as to avoid their unconstitutionality.
For the purpose of my study, an extensive analysis of the Italian Supreme Constitutional Court’s constitutional precedents would be undergone. The paper will also examine a number of constitutional precedents of the French constitutional council. It will further shed the lights on some of the constitutional precedents of the Egyptian Supreme Constitutional Court which has resorted to this interpretive technique in some of its constitutional precedents.