U. Lхhmus
Chief Justice of the Supreme Court of Estonia

The application of different techniques of interpretation
of the Constitution as a factor of its development

Every political system needs to be modified over time. First, changes in the environment within which the political system operates may make present rules obsolet. This includes economic, technological and demographic changes. Second, changes in the values and attitudes of the population may generate a need to alter parts of the system. Political preferences are not constant over time. Third, we may want to modify the system because we learn about unintended, unexpected and unwanted consequences of the present institutions.

There are three main types of change in the constitutional arrangement of the country. The first possibility is revision or replacement of the constitutional document by means of the formal admendment procedure specified in the constitution itself. The second possibility is revision of the constitutional framework by means of judicial interpretation. An example is the landmark Marbury vs. Madison decision of the U.S. Supreme Court in 1803, through which the principle of judicial review was established. The third possibility is intended or unintended revision of the constitutional framework by means of political adaption by legislative and executive bodies An example in many European countries was the introduction or evolution of parlamentary government formation.

My report consentrates only to the judical interpretation of the Constitution. Euroopas, Norra vast vдlja arvatud, oli Ameerika kontseptsioon pikka aega vastuvхetamatu. Valitses seaduse ьlimuslikkuse pхhimхte. See pхhimхte hakkas murenema pдrast I maailmasхda, kui Austrias loodi Hans Kelseni mudeli jдrgi konstitutsioonikohus. Teise maailmasхja jдrel loodi Saksamaal ja hiljem Itaalias tsentraliseeritud konstitutsioonikohtud. Nende loomiseks olid vдga konkreetsed pхhjused. Ka hiljem loodi konstitutsioonikohtud neis riikides, kus autoritaarne reziim asendus demokraatlikuga.

One of the most important dilemmas in constitutional law arises from the tension between the basic principle that the Constitution bestows sovereign authority on the people, who have adopted the Constitution and elect their representatives, and the competing principle that, in interpreting the Constitution under the doctrine of judicial review, the courts have the final say over the outcome of political processes.

The tension between judicial review and democracy could be eliminated, or at least reduced, if judicial review were simply a process of mechanically deciding whether an Act of Parliament violates some decision made by the people adopting the Constitution. If the act of interpretation were essentially mechanical and involved no exercise of discretion or will on the part of the judges, the problems of the legitimacy of judicial review in a democratic society would be minimised. In such circumstances, the judges would not be imposing their own value choices, but simply forcing current legislatures to conform to earlier choices made by the people. At first glance it also appears that the problems of the rule of law would be minimised, if a constitutional review judge, when fulfilling his duties, confined himself to "strict" or "literal" interpretation, refraining from interpretations that could be qualified as "liberal" or "equitable". In general terms, "strict" interpretation rests on the sole use of linguistic and genetic arguments, while "liberal" interpretation requires the implementation of other legal arguments as well. But more often than not, it is difficult to draw a line between "strict" and "liberal" interpretation in judicial practice.

Sama vхib цelda ka mхistete judical activism ja judical self- restraint kohta. The distinction between "activist" and "non-activist" approaches to constitutional adjudication is not clear. Even in most deliberately "passive" versions, constitutional interpretation requires a certain amount of personal choice sitting in the relevant instances. It is probably true that a decision is most likely to be qualified as "judicial activism" if it limits the constitutional freedom of the political branches of government in a way that does not flow quite clearly from the text of the Constitution itself or from precedent.

Tхlgendamine, kui tдhenduse tдpsustamine, on alati seotud keelega. Kui kasutav keel oleks alati ьhetдhenduslik, ei oleks tхlgendamist vajagi. Juriidilise ja ьldkeele probleemid on samad: hea on see, et keel on vдljenduslikult rikas ja paindlik, raskuseks aga see, et ta on paratamatult ebatдpne. Ebatдpsus vхib olla kas ebaselgus vхi semantiline ebamддrasus. Many constitutional provisions are vague and ambiguous thus calling for the exercise of discretion in the process of interpretation. The articles are norms with great openness, and margins of interpretation that are hard to delimit. Let us take as an example an article devoted to the family. In Estonian Constitution it opens with the sentence "Perekond rahva pьsimise ja kasvamise ning ьhiskonna alusena on riigi kaitse all" (§ 27). Vхi sama paragrahvi viimane lхik "Perekond on kohustatud hoolitsema oma abivajavate liikmete eest". Kuna jдrgmises paragrahvis on sдtestatud isiku subjektiivne хigus riigi abile puuduse korral, siis tхusetub riigi ja perekonna kohustuste ulatus puudustkannatava isiku toetamiseks. What is meant by the term "family"? Does it mean only a family founded on marrage? Whether there could be a family in the legal sense where father and mother lived together unmarried with their child? Kuid elu pakub nдiteid ka paljudest muudest perekonna vormidest. At present one vigorously argued question is how the constitutional concept of marrige is to be understood.

But this is not the only problem. Constitutional principles involve numerous collisions, such as those between freedom of expression and a person‘s honour and good name or between the right to engage in commercial activity and nature protection.

The openness and breadth are not defects of the Constitution. Raske on mitte nхustuda Former President of the Federal Constitutional Court of Germany Jutta Limbachiga, kes on kirjutanud: " A constitution can generally be regarded as successful if it is couched tersely and vaguely. For a constitution that were not open and therefore to some extent capable of ever-new interpretation would inevitably soon come into hopeless contradiction with its object. That is why a constitution has to be understood as a living instrument that has to be interpreted in the light of current circumstances". She added " We must accordingly concede that judicial decision making is not only lawfinding, but always also law-making. The judge creates law in the process of finding a decision. Adjudication thus always has a political dimension too. This is certainly true of constitutional jurisdiction". Israeli Ьlemkohtu esimees Aharon Barak on oma kohust iseloomustades selgelt rхhutanud law-making osa. "We are very active in making law. It is a nonformal court. Substance, not form is its message. Our tool is, of course, interpretation - teleological interpretation. We do not ask what the intention of Parlament when drafting a statute; we ask what the purpose of the statute is. Both in interpreting and developing our common law, we often use the general principle of our legal system. We created interpretive presumptsion, by which we presume that the purpose of every statute is to further the basic values of the Israel legal system".

Termin "living instrument", mida Jutta Limbach kasutas konstitutsiooni iseloomustamiseks, pдrineb Euroopa Inimхiguste Kohtu sхnavarast ja sellest pхhimхttest lдhtutakse Euroopa inimхiguste konventsiooni tхlgendamisel. On numerous occasions the Court emphasied that the Convention is "a living instrument which should be interpreted according to present-day conditions". The standards of the Convention are not regarded as static, but as reflective of social changes. This dynamic or evolutive interpretation of the Convention implies that the Court take into account contemporary realities and attitudes, not situation prevailing at the time of the drafting of the Convention in 1949-1950. Kohtu arvates especially important for the futher development of the law is teleological or purposive interpretation. The Court emphasised the importance of "real and effective" safeguards for individuals. In Airey Case (1979) the Court considered whether the applicant had had an effective right of access to the courts for obtaining a separation from her husband. Although article 6 of the Convention was not held to guarantee a right of free legal aid for every dispute relating to a "civil right", the Court accepted that this provision may sometimes compel the State to provide for the assistance is indispensable for an effective access to court. There is also an obvious link between the recognition of certain positive obligations for the state and the principle that the Convention rights are intended to be practical and effective. There are a number of areas where it is established that there are positive obligations on the stake to take action to prevent Convention violations. The positive obligation on states in Article 2(1) to protect everyone's right to life has been interpreted as creating a positive duty to safeguard lives. In Osman vs. United Kingdom (1998) for example, the Court found a positive obligation to take preventive operational measures to protect those whose lives were at risk from criminal attact.

In case of I.vs. United Kingdom (2002), milles kohus muutis oma senist praktikat transseksuaalide хiguste suhtes, vхtab kokku eelpoolnimetatud pхhimхtted.

"1.  While the Court is not formally bound to follow its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases (see, for example, Chapman v. the United Kingdom [GC], no. 27238/95, ECHR 2001-I, § 70). However, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within the respondent State and within Contracting States generally and respond, for example, to any evolving convergence as to the standards to be achieved (see, amongst other authorities, the Cossey judgment, p. 14, § 35, and Stafford v. the United Kingdom [GC], no. 46295/99, judgment of 28 May 2002, to be published in ECHR, §§ 67-68). It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would indeed risk rendering it a bar to reform or improvement (see the above-cited Stafford v. the United Kingdom judgment, § 68). In the present context the Court has, on several occasions since 1986, signalled its consciousness of the serious problems facing transsexuals and stressed the importance of keeping the need for appropriate legal measures in this area under review (see the Rees judgment, § 47; the Cossey judgment, § 42; the Sheffield and Horsham judgment, § 60).

2.  The Court proposes therefore to look at the situation within and outside the Contracting State to assess "in the light of present-day conditions" what is now the appropriate interpretation and application of the Convention (see the Tyrer v. the United Kingdom judgment of 25 April 1978, Series A no. 26, § 31, and subsequent case-law)."

The proportionality principle, which implies the need to strike proper balance between various competing interests, permeates the whole interpretation of the Convention. Some deviation from the fundamental freedoms guaranteed will be considered acceptable under Convention if the proportionality principle is observed. The principle requires, in particular, that the extent of such deviation is not excessive in relation to the legitimate needs and interests which have occasioned it.

Iga riigi pхhiseadus areneb seepдrast teatud pхhimхtete vхi tхlgendamise tehnikate abil. Need pхhimхtted on paljuski sarnased, kuigi erinevates kohtutes vхivad rхhuasetused olla erinevad. In Estonia, the Constitution itself seems to encourage judges to interpret the Constitution as a "living instrument". According to Article 152,

The "spirit of the Constitution" is mentioned also in Article 10 on the development of fundamental rights:

What is meant by the "spirit of the Constitution"? The clause indicates that constitutional interpretation should be much more than determining the meaning of the words used in each provision of the Constitution.

The Supreme Court proceeds from R. Alexy‘s idea that a constitution seen as a substantive basic order is more than a text, more than a set of formulations. In addition, it contains a system of principles. A system of principles cannot move or develop itself. It is moved by rational argumentation. Thus, the spirit of the Constitution is composed of three elements: (1) principles, (2) the system that these principles make up, and (3) rational argumentation. Together the three create a systematic whole on the basis of which conclusions on the existence of concrete rights and duties can be drawn.

Linguistic arguments can serve as a starting point when resolving cases. Also reference to the intent of the drafters of the Constitution, that is genetic arguments, may be of significance. But if these simple means do not solve the problems, systematic and general practical arguments have to be employed.

One constitutional principle frequently referred to by the constitutional judge can be found in Article 11:

The criterion "necessary in a democratic society" has been taken from the European Convention on Human Rights and Fundamental Freedoms. The Supreme Court is of the opinion that

Хigusnormi vхi toimingu pхhiseadusele vastavuse kontrolli vхib tinglikult jaotada kaheks: kхigepealt peab olema pхhiхiguse riivel legitiimne pхhjus ja teiseks peab riive olema proportsionaalne. The principle of proportionality requires weighing and balancing: We have to put a fundamental right on one scale. On the other scale we have to place the reasons justifying the infringement of the fundamental right, which deserve recognition in a democratic society. Ьlemkohtus kasutatava kriteeriumi jдrgi on pхhiхigust riivav abinхu demokraatlikus ьhiskonnas vajalik siis, kui see on pьstitatud eesmдrgi saavutamiseks sobiv, tarvilik ja mххdukas.

On the one hand the principle of democracy empowers only a directly elected parliament to set restrictions on fundamental rights and freedoms. On the other hand, the clause "necessary in a democratic society" is also binding on the legislator, a fact that has repeatedly been stressed by the Supreme Court. It is the task of courts to assess whether a law limiting or restricting fundamental rights or freedoms is necessary in a democratic society and does not distort the nature of the rights and freedoms restricted.

Another example illustrates the interpretation of the Constitution, more specifically Article 12 (1) on everyone‘s equality before the law. These words first and foremost grant equality with respect to the application of the law and also the requirement to implement valid law impartially and uniformly in respect of everyone. According to the Court, the spirit of the Constitution requires that

Oluline koht tхlgendustehnikate hulgas on ka vхrdlevatel (comparativ) argumentidel. The Supreme Court uses decisions of international courts, eriti Euroopa Inimхiguste Kohtu otsuseid, samuti teiste riikide konstitutsioonikohtu otsuseid. Mхnel juhul on neile otsustele viiteid otsuses, sageli vхetakse pхhiseaduse tхlgendamisel neid arvesse ilma otseseid viiteid tegemata.

Ettekande pikkus ei vхimaldanud peatuda kхigil tхlgendamise vхtetel. Pььdsin peatuda olulisematel, mida kasutavad Euroopa Inimхiguste Kohus ja minu kodumaa Ьlemkohus.