Limitations on governmental power involve the separation of powers among the organs of government (Executive, Legislature, and Judiciary), a system of checks and balances, and due process of law. Furthermore, constitutional democracies guarantee individuals fundamental basic human rights, including freedom of opinion and expression; freedom of the media; freedom of association and the right to privacy. Commenting on the nature of the Constitution, the Court of Appeal, in the celebrated case of Attorney General v Dow 1992 BLR 119 at 129, said: ”A written Constitution is the legislation or compact which establishes the State itself. It paints in broad terms on a large canvas the institutions of that State, allocating powers, defining relationships between such institutions and between the institutions and the people within the jurisdiction of the State, and between the people themselves”.
The Court of Appeal observed that the Constitution is meant to serve not only the current generation, but also generations yet unborn. The Court also said that the makers of a Constitution do not intend it be amended as often as other legislation and stressed that because of this, when interpreting the provisions of the Constitution, courts should not allow the Constitution to be a lifeless museum piece, but must breathe life into it from time to time as the occasion may arise to ensure a healthy growth and development of the State through it. This is an acknowledgment that societies are not static, and as they develop, the Constitution should adapt to accommodate the changes. For example, fifty years ago, it was understood that the guarantee of rights imposes only negative obligations on a state not to unduly interfere with the protected rights. However, over the years, it has come to be accepted that some rights may impose positive obligations on a state to put in place measures that promote the full enjoyment of the protected right. The interpretative approach whereby courts try to breathe life into the Constitution is referred to as purposive. The essence of this is that, when interpreting the provisions of the Constitution, a court must seek to promote the general legislative purpose underlying a provision. It requires that words be read with context, and the approach assumes that context may change and, therefore, may require an updated construction allowing the Constitution to be read as always speaking. It is important when applying a purposive interpretation of the provisions of the Constitution to consider how similar issues have been resolved in other jurisdictions because of the commonality in provisions of many bills of rights across the world and that these have been inspired by the same philosophy.
