The Legal Status of Constitutional Preambles--Matthew Hoffman on Developments in Moldova

(Pix (c) Larry Catá Backer 2015)

The legal status of constitutional preambles continues to generate substantial interest, especially in states whose constitutional orders are experiencing periods of vibrant development.   (see, e.g., Zhang Qianfan, Yanhuang Chunqiu, The Controversy on the Preamble to the Constitution and Its Effects, China Copyright and Media, June 10, 2013) (considering the legal effect of preambles generally and considering the four distinct schools of thought of the legal effect of the preamble to the PRC constitution).  While constitutional preambles do not have specific legal effect under the rules of many jurisdictions there are important examples where constitutional preambles have been given legal effect, and more important, where extra constitutional documents have been incorporated into the constitution through the preamble. 

My student,  Matthew Hoffman, recently considered the issue in the context of the legal status of the Moldovan language under its constitution. The case was considered by the Moldovan Constitutional Court in  Hotărâre nr.36 din 05.12.2013 privind interpretarea articolului 13 alin. (1) din Constituţie în corelaţie cu Preambulul Constituţiei şi Declaraţia de Independenţă a Republicii Moldova (Sesizările nr. 8b/2013 şi 41b/2013). The issue turned on the legal status of the Moldovan declaration of independence, and its relation to the Moldovan constitution. Mr. Hoffman's analysis follows along with his translation of the relevant portions of the opinion.

The 1991 Declaration of Independence of Moldova clearly states that the state's language is Romanian. The 1994 Constitution, in Article 13, states that the official language of the Republic of Moldova is Moldovan ("operating on the Latin script").

The findings of the court necessarily had to argue that a Declaration of Independence was a) a legal document, b) capable of superseding the supreme law of a state and c) that this interpretation had precedent in other countries (France, Germany, Hungary, South Africa, etc.). Much of the opinion details these examples. The Hungarian example cited mentions "The Invisible Constitution," which consists of all the basic principles and ideas necessary to understand the a constitution itself.

Furthermore, the Preamble of the Constitution, consisting of the Declaration of Independence, is said to have directed or informed the entirety of the 1994 Constitution. In this way, the birth of that legal document would be impossible without the political, legal, and historical direction of the Declaration. Is this a chronological precedent along with the appeal to principles and fundamental beliefs that gave birth to the state of Moldova in 1991?

The Court rules that the Declaration of Independence of 1991 is, and by default the Preamble of the Constitution, a "constitutional clause by reference." It has legal value because how could something without legal value give birth to a document (the Constitution) that has legal value? Since legal values are born out of the conversation and contract in which a state is formed, the principles cemented in the Declaration must be equivalent to those in the Constitution. The Eternity Clause, in this case, applies to the Declaration, Preamble, and the Constitution as a single constitutional "bloc."

But the Court goes further and asserts that the Declaration is the primary legal and political foundation of the Constitution and, thus, the Articles of the Constitution cannot violate the Declaration or the Preamble. This concludes the argument essentially. If the official state language is listed as Romanian in the Declaration/Preamble, then the Constitution's Article 13 cannot override that. The last line of opinion reaffirms that: "Therefore, any constitutional review or any interpretation is to consider not only the text of the Constitution, but constitutional principles of constitutionality bloc."

What follows is a translation by Matthew Hoffman of the relevant portions of the opinion:
 

3.1.1. Legal value of the Declaration of Independence

47. The Court notes that under the Declaration of Independence, Moldova was established as a sovereign and independent state. The Declaration of Independence is the political and legal foundation of the Republic of Moldova as a state that is sovereign, independent and democratic. It is the birth of the Republic of Moldova. It is based on the Declaration of Independence, independence Moldova has obtained recognition from other states, was accepted on 31 January 1992 the Conference on Security and Cooperation in Europe, and on March 2, 1992 - in the United Nations.

48. Since the Republic of Moldova as a sovereign independent state, did not yet have a Constitution, the Declaration of Independence was the only document that defined the constitutional order of the Republic of Moldova on the basis of which it was political, economic and judicial system of the Republic of Moldova . Thus, by the adoption of the Constitution, the Declaration of Independence served as a constitutional basis for the development of the state and society of the Republic of Moldova.

49. Therefore, the Declaration of Independence is a political and legal document that established the creation of the new independent Republic of Moldova, representing the "birth certificate" of the new state, and set the foundations, principles and core values ​​of the state organization of the Republic of Moldova.

50. In addition to being the "birth certificate" of the newly independent state, the Declaration of Independence remains the most succinct statement of Moldova's constitutional ideals. In the historical context of the country, this legal document proclaimed the constitutional values of the new independent state, from which derives legitimacy of governing power of the Republic of Moldova .

3.1.2. The functional role of the Preamble to the Constitution: interpretive and substantial legal value

51. The Court recalls that in Case no. 4 of 22 April 2013 stated that:

"59. Preamble, giving rise to the constitutional text, is the part of the Constitution that accurately reflects the spirit of the Supreme Law. Thus, the Preamble to exposes certain mandatory constitutional clauses that can serve as independent sources for rules that are not necessarily reflected in the text of the Constitution. "

52. The Court reiterates that the Preamble to the Constitution directed[might be informed]  the Constitution in its entirety, has a key role in understanding and applying the text of the Constitution and may be invoked as a source of law (see Case No. 4 of 22 April 2013, §§ 56, 58 ).

53. In the same judgment, the Court held, the value of principle, the following:

"Any interpretation of the Constitution is to be operated from the original objectives of the Constitution, which are set out in the Preamble and from which derives the text of the Constitution itself. ... [w] hen there are many interpretations, according to the option Preamble according to the prevails . "(§ 59)

3.2. Practice of other countries

54. As a rule, constitutions open with a preamble, and according to the criterion of their content, they are very different.

55. A growing number of states have expressly recognized the legal value of the preamble, it is no longer treated as a mere preface, but as a special of the Constitution (Germany, France, Ireland, Estonia, Latvia, Macedonia, Bosnia and Herzegovina, Ukraine Turkey, India, etc.).  

56. European Commission for Democracy through Law of the Council of Europe (Venice Commission) regarding the importance of the preamble to the Constitution, explicitly concluded that:

"[P] reambles are primarily a political purpose and represent political declarations meant to stress the importance of the fundamental law, its principles, values ​​and guarantees, for the State and its people. Consequently, they should also have a significant unifying value"(Opinion on Hungary's new constitution, CDL-AD (2011) 016, § 31).

57. Equally, the European Court of Human Rights considers that the principles set out in the preamble to the Convention refers to the Convention as a whole (see,  inter alia , ECHR rulings  Engel and Others v. the Netherlands on June 8, 1976, Klass and Others v. Germany of 6 September 1978,  Malone v. the United Kingdom  from August 2, 1984, etc.).

58. interpretative value of the preamble is deeply rooted in countries with common law system ( common law ), Preamble to the Constitution embodying a guiding framework for constitutional interpretation.

59. When there is more than one interpretation, courts prefer the option consistent with the Preamble . For example, section 39 of the Constitution of South Africa provides that, in interpreting the Bill of Rights, courts "must promote the values ​​that are based on an open and democratic society based on human dignity, equality and freedom", words that appear in the preamble to the Constitution. Article 39 of the Constitution makes no express reference to the Preamble to the Constitution. However, the Constitutional Court of South Africa has confirmed the guiding status of the Constitution’s Preamble for interpreting the Bill of Rights. Similarly, in Ireland, the courts have invoked the preamble for the interpretation of the Irish Constitution, which is a tool used to understand its spirit.

60. Using the preamble as a tool for the interpretation of constitutions exists in common and civil law system states. In Estonia, the Preamble, which Estonian people commit to "ensure preservation of the Estonian nation and its culture throughout the ages" was used by the Supreme Court (authority of constitutional jurisdiction) to confirm the constitutionality of an act adequate knowledge of the Estonian language was required as a condition for eligibility under a local government council. The Court held, in respect to the Estonian language requirement - the official language, that it was a legitimate requirement in light of the Preamble of the Constitution (EST-1998-3 -007, 1998 codices).

61. In Macedonia, the Supreme Court upheld restrictions on freedom of political association, because some activities were perceived as contrary to the Preamble to the Constitution. It considered that a political organization that openly denies the right to self-determination to Macedonians is prohibited by law (MKD-2001-1-004, 2001 codices, Decision Preamble before amendment in 2001). In Ukraine, the Supreme Court cited preamble to declare the constitutionality of imposing Ukrainian language use by central and local government agencies (UKR-2000-1-002, 2000 codices).

62. An example of preamble role for interpretation comes from Germany. On 30 June 2009, the German Constitutional Court ruled that, in principle, there is incompatibility between the Grundgesetz acquis (Basic Law) and German Lisbon Treaty and, thus, laid the foundation for the completion of the ratification (BVerfG 2 BVE 2 / 08, 30 June 2009). The Treaty gives the European Union (EU) competence in foreign and security policy. The question raised was whether the treaty violates the German constitutional order in a way that would require a constitutional amendment. The Court held that the treaty does not violate German sovereignty, although some processes require legislative ratification.

63. The German Constitutional Court relied on Article 23 para. (1) of the Basic Law and the preamble , which states its intention "to serve world peace as an equal party in a united Europe" . In light of these provisions, it is the will of the German people to be part of the EU . The Court noted that the preamble emphasizes " not only a moral basis of responsible self-determination, but also the desire to serve world peace as an equal partner of a united Europe . " The Court noted that Germany break with "political Machiavellianism and rigid concept of sovereignty" and try to achieve "a united Europe, which derives from Article 23.1 of the Basic Law and the Preamble " . Therefore, the Constitutional Court ruled that achieving " European integration and peaceful international order "is the will of the German people expressed in the Preamble to the Constitution .

64. The preambles can also send constitutional clauses (connective) legally binding and can serve as independent sources of rights and obligations.

65. An example in this respect is France. The French State Council ruled in 1947 for the first time explicitly on the legal value of the preamble. Thus, during a case concerning the right to strike, the State Council fully recognized legal value of the Preamble to the Constitution of 1946 (CE., 18.04.1947, Jarrigion ). Through an innovative decision, the State Council based its conclusions on " the rights and freedoms guaranteed by the Preamble to the Constitution ".

66. In 1960, confronting an administrative act with a rule of the Preamble of the new Constitution of 1958, the French State Council confirmed the line of cases, established in 1947, under the rule of the Constitution of 1946. Thus, confronting various articles of the Penal Code Article 8 of the Declaration of 1789, referred to by the Preamble to the Constitution of 1958, the French State Council issued a decision which held its major normative legal value to the preamble of the Constitution of 1958, even if the constitutional text does not make express reference to the preamble, ending controversies on this subject (EC, sect., 12.02.1960, Soc. Eky ).

67. This solution was subsequently supported by the Constitutional Council, which adopted the same position in 1971 as a fundamental decision concerning freedom of association (DC 44-71).

68. The preamble to the Constitution of the Will (1958) states that the French people " proclaims its commitment to human rights and national sovereignty principles outlined in the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946 ". Founding Fathers Fifth Republic did not include the text of the Declaration of 1789 in the Constitution. Preamble to the Constitution of 1958 did not enjoy the original binding, are not even considered as part of the Constitution.

69. Only on 16 July 1971, the Constitutional Council recognized the binding nature of the preamble as an independent legal source of human rights. For the first time, the Council declared unconstitutional an act adopted by the French Parliament, arguing that it violates freedom of association, one that violated the " fundamental principles recognized by the laws of the Republic " (decision of 16 July 1971 called " freedom of association "DC 44-71). These fundamental principles were not mentioned in the Constitution of 1958, but in the Preamble to the Constitution of 1946 .

70. In subsequent decisions, the French Constitutional Council considered that the Preamble to the Constitution of 1946 enjoys legal force and constitute an independent source of rights , although at the time it was drafted, the preamble to the Constitution of 1946 was perceived as having no legal force. The French Constitutional Council Preamble to the Constitution of 1946 actually granted a status higher than it previously enjoyed.

71. Thus, by Decision in 1971, the French Constitutional Council has applied a method of legal interpretation according to which the Preamble of the 1946, the Declaration of 1789, and the fundamental principles of the Republic have been granted legal status constitutional ex post facto .

72. Noting that the Preamble to the Constitution of the Republic Will (1958) referred to both the French Declaration of the Rights of Man and Citizen of 26 August 1789 and the preamble of the Fourth Republic (1946), the French Constitutional Council held, judicially , that although the wording of the Constitution were not incorporated explicitly on human rights norms, simply referring to them preamble to make human rights issues to be considered as part of the constitutional norm , forming Such a "constitutional block ".

73. The law of the French Constitutional Council has established constitutional norm value and Citizen Declaration of Human Rights of 1789, which served as the reference standard for constitutional review human rights (Constitutional Council, 73-51 DC, 27 December 1973; 74-54 DC, January 15, 1975, 99-416 DC, July 23, 1999; 89-254 DC, July 4, 1989, 89-265 DC, January 9, 1990).

74. The constitutional reform of 2005, following a referendum in France, the Preamble to the Constitution of 1958 also included an Environmental Charter. This is the only reference in the Preamble to the Constitution of 1958 inserted through constitutional referendum . Otherwise, all other texts were included in constitutionality bloc only judicially, by decisions of the Constitutional Council .

75. Thus, the principle of "constitutional bloc ', the French Constitution and the documents cited above and constitutional principles, whether or not part of the Constitution , but to which reference is made ​​in the Preamble of the Constitution (" principles of political, economic and social conditions necessary for our times, the fundamental principles recognized by the laws of the Republic, with constitutional principles and objectives ").

76. In the same vein, in Germany, constitutional jurisdiction is considering not only the text of the Basic Law, but also constitutional principles , whether or not they are a part of the Basic Law . In this regard, inter alia , the Federal Constitutional Court stated:

"Basic Law of the German people, in the context of international development that has occurred, especially since the establishment of the United Nations, based on universal fundamentals that can not be modified by a positive law "(judgment of 30 June 2 BVE 2/08 2009, § 218).

77. Following the same logic, the Hungarian Constitutional Court developed the theory of " Invisible Constitution ", which ruled that not only can interpret and apply the Constitution, but also any other principles that have a constitutional right , including the amounts deducted by reference to the "modern constitutions" (Cases 8/1990, 15/1991, 57/1991, 19/1992, 22/1992, 58/2001, etc.). "The Invisible Constitution" includes all the basic principles that are necessary to understand the written constitution and form a coherent body of constitutional law.

3.3. Applying the principles of the present case

78. The Constitution, the fundamental law that sets out the principles on which organizes the state and society, is a document with specific meaning not only legal, but also political and historical context.

79. The Preamble to the Constitution contains not just legal statements. The reasons for writing the preamble, the construction of sociological and functions, are different. The goal is not only for the preamble to guarantee rights or provide legal arguments, but to establish the fundamental values ​​of a society ( constitutional faith ).

80. The 1994 Constitution [of Moldova]  enumerates constitutional values ​​in its Preamble: aspirations of the people to live in a secular, sovereign country, expressed independence of the Republic of Moldova; continued statehood for the people of Moldova in the context of historical and ethnic environment of the nation; satisfy the interests of citizens of different ethnic origins, which together, with the Moldovans, are the people of the Republic of Moldova; rule of law, civic peace, democracy, human dignity, rights and freedoms, free development of human personality, justice and political pluralism; responsibility and obligations to generations past, present and future; commitment to human values, desire to live in peace and understanding with all peoples of the world, according to the generally recognized principles and norms of international law.

81. This means that the constitutional court is required to consider these constitutional values ​​and to interpret due to: a) aspirations [...] expressed proclamation of independence of the Republic of Moldova; b) the historical and ethnic area of [pop.] of the nation.

82. The provision ' aspirations [...] expressed through independence "in the Preamble to the Constitution makes direct reference to the act by which independence was proclaimed - the Moldovan Declaration of Independence. This is the legal document that Moldova's independence was expressed in which reflect the aspirations that accompanied this process . Thus, the text of the Preamble to the Constitution is a constitutional clause by reference .

83. Analyzing the legal value of the Declaration of Independence, the Court will consider the nature and content, and not by the name of "law" (Law no. 691 of 27.08.1991). Declaration of Independence cannot be regarded as organic law. Moreover, such a classification does not exist in the law existing at the time of adoption. The fact that this legal act has a different connotation given by organic law and by the use of the verb " decrees" to print solemnity, improper organic laws, and that the Declaration of Independence was first uttered and availing of the Grand National Assembly and then confirmed by the Parliament (both representing "constituent power ") in a "legal coat ".

84. "approval" by "law" of the Declaration of Independence was made ​​to assign certain legal force of an official act adopted by a recognized authority of the state, which is necessary to obtain international recognition .

85. The Declaration of Independence, which enshrines the formation of a new independent state, the Republic of Moldova, lays the foundations, principles and core values ​​of the organization of the Republic of Moldova .

86. In no other place is it so clearly reflected the constitutional understanding of the founding fathers and national creed than the Declaration of Independence. It is the Declaration of Independence, reflecting fundamental policy decisions, the national consciousness, and defines the "constitutional identity" of Moldova . Thus, the enumeration of the Declaration of Independence included elements that were considered essential to define the constitutional identity of the new state and its population: aspirations for freedom, independence and national unity, linguistic identity , democratization, rule of law, market economy history, and moral norms of international law, European geopolitical orientation, ensuring the social, economic, cultural and political freedoms of all citizens of Moldova, including persons belonging to national, ethnic, linguistic and religious identities.

87. In this context, the reference in the Preamble of the Constitution to the Declaration of Independence has unquestionably assigned constitutional worth to the text . Even if missing reference in the Preamble to the Constitution, the Declaration of Independence of the Republic of Moldova, however, by its nature, would be worth constitutional text, because it represents a major expression of the will of the people to build and live in a free and independent state, will which predetermines the need to adopt the Constitution and binds constituent ideals, principles and values ​​of the Declaration (see, mutatis mutandis , statuary Constitutional Court of Germany, referred to in § 102 infra ).

88. The Court notes that the Declaration of Independence is the primary political and legal foundation of the Constitution. Therefore, no provision of the Constitution, reflected in the text of the Declaration of Independence, can violate the limits (provisions) of the Declaration.

89. Furthermore, as the founding act of the Republic of Moldova, the Declaration of Independence is a legal document that can not be subject to any amendments and / or additions. The Declaration of Independence has the status of "eternity clause "as defined by the constitutional identity of the political system, the principle that it cannot be changed without destroying the identity.

90. For this reason, the Court holds that the Declaration of Independence is a native element, intangible and immutable constitutional bloc.

91. The preamble to the Constitution, the Declaration of Independence, directs the Constitution in its entirety, having a key role in the development, understanding and application of the Constitution and the text intended to be used as a source of law (see, mutatis mutandis , Case No. 4 of 22 April 2013, §§ 56, 58, 59). Therefore, any constitutional review or any interpretation is to consider not only the text of the Constitution, but constitutional principles of the constitutionality bloc .