The constitutional Judiciary’s Use of Foreign Constitutions and Provisions for the Interpretation of the National Constitution
Dr. Issam Saeed Abdel-Obeidi
Associate Professor of Public Law – College of Law – University of Sharjah and Mosul University
The constitutional judiciary plays an important and vital role in interpreting and applying the constitutional rules in the disputes in which it is concerned, in order to establish, protect and strengthen the pillars of the rule of law and the protection of rights and freedoms. However, the constitutional court judge may face some difficulties in interpreting the constitution when there is ambiguity, lack of or conflict with the texts or constitutional rules. In order to overcome these difficulties, the constitutional judiciary resorted to the sources of national constitutional interpretation for the purpose of clarifying and interpreting constitutional rules and applying them properly to achieve constitutional justice. However, these sources may not help the constitutional court judge to carry out his task of interpretation, which may force him to resort to foreign or transnational legal sources, including foreign constitutions and judicial decisions, to interpret constitutional rules.
However, the use of these sources by the constitutional court judge without proper controls is risky, especially that their use in an absolute discretion may lead to the insertion of foreign legal elements that are not in accordance with the specificities of the constitutional, political, social and economic environment of the society, which stands in contrast to the general will of the people depicted in their national constitution.
Therefore, this study has concluded that it is illegal for the constitutional court judge to use these sources without a constitutional basis or explicit constitutional controls that prevent deviation in their use so as not to cause any conflict with the popular sovereignty in the constitutional system of democracy.
Keywords: Constitution, constitutional court judge, constitutional interpretation, comparative constitutional jurisdiction, comparative constitutional law.