Vol. 34 No. 5 (May 2022) pp. 67-71 CONSTITUTIONAL STATECRAFT IN ASIAN COURTS, by Yvonne Tew. New York: Oxford University Press. 2020. pp.272. Cloth $80.00. ISBN: 978-0-198-71683-9.
Reviewed by Mark Rush, Department of Politics, Washington and Lee University. Email: rushm@wlu.edu..
CONSTITUTIONAL STATECRAFT IN ASIAN COURTS is a refreshing work of comparative scholarship in which Yvonne Tew offers insights into constitutional development in Singapore and Malaysia. In so doing, she offers important insights into the comparative study of judiciaries and perspectives on the role of courts and notions of the rule of law that westerners in general and Americans in particular will find challenging and enlightening.
Tew’s principal premise is that courts must play a strong, assertive role not only in the review of legislation and interpretation of constitutions, but also in the assessment of the legality of constitutional amendments. Such a claim would certainly meet considerable resistance in climates, such as the USA, among scholars and pundits who are as preoccupied with the political affiliations of the president that appointed a particular judge as they may be with the rule of law or the workings of government.
Tew anticipates this sort of response as she sets forth the context of her analysis quickly and powerfully. She says that “[f]or constitutional democracy to thrive, in Malaysia or elsewhere,” it is necessary to “shift away from preoccupation with particular personalities or political parties” (p. 3). Therefore, CONSTITUTIONAL STATECRAFT IN ASIAN COURTS “charts a path forward for courts to protect and build constitutionalism in aspiring but fragile democracies in Asia… the foundational constitutional principles it draws on are located in the framework of…post-colonial Southeast Asian constitutional orders, not from what are perceived as Western universal traditions.” (p. 10)
The Malaysian and Singaporean contexts are quite different from that of the American or other western counterparts. They gained independence in the mid-20th century and are parliamentary systems with dominant political parties that regularly win elections and control the government. In these systems, the parliament has the power to amend the constitution with 2/3 majorities—something that is not difficult for dominant parties to assemble. Accordingly, amending the constitutions of either Malaysia or Singapore is much easier than it is in the USA, and the amendment process does not bear the same popular imprimatur that the extraordinarily arduous American process does.
Both nations’ Constitutions essentially ensure confrontation between the legislature and the courts. Both declare that the courts have the last word in constitutional interpretation (pp. 127-128). Neither grants the legislature particular powers to challenge or get around judicial decisions (such as the notwithstanding clause in Section 33 of the Canadian Charter of Rights and Freedoms). As a result, Tew says, the legislature’s only option in either country is to amend the constitution to alter the court’s jurisdiction when it disagrees with a court decision (p. 128).
Tew laments this state of affairs because, in the absence of robust electoral competition and government turnover, dominant parties are free to amend the constitution to pursue political agendas and to rein in the courts. She therefore argues that for democracy to develop and consolidate, ensure the protection of individual rights and liberties, and control authoritarian tendencies of legislative majorities, courts must be empowered and willing to overrule acts of the legislature and, in particular, rule on the constitutionality of constitutional amendments.
Tew cites numerous examples of controversies and judicial decisions that support her call for judicial activism. She lauded the SEMENYIH JAYA decision where the Malaysian Federal Court struck down an amendment to section 121(1) of the constitution in which the legislature sought to restrict the judiciary’s jurisdiction (98ff.). The court asserted that, “Parliament does not have power to amend the Federal Constitution to the effect of undermining the features of separation of powers and the independence of the Judiciary” (p. 100).
In INDIRA GANDHI, the Malaysian Federal Court overruled a lower court that had allowed a male, who had converted to Islam, to convert his children in sharia court without his wife’s approval. In so doing, the court rejected another legislative amendment to section 121(1) that had removed sharia courts from civil court jurisdiction (pp. 114-115). Again, the court asserted that “the fundamental principles of the Constitution cannot be abrogated or altered by Parliament by way of constitutional amendment” (p. 115).
Tew acknowledges that her calls for judicial activism engender questions about the balance of power between elected officials and unelected judges. Her faith in the judiciary therefore runs up against the countermajoritarian tension that Alexander Bickel described in THE LEAST DANGEROUS BRANCH. She notes, however:
This book advances neither an ideal of Herculean judges forcing the governing powers into legal compliance nor a view of a futile judiciary cowed into passivity seeking to avoid political confrontation…it is an account of the careful and strategic expansion of judicial power in an emerging democracy as illustrated by [Malaysia] (p. 217).Her reference in this passage to Dworkin’s Hercules is revealing and important. Tew’s confidence in the capacity of particular judges to declare what the law is and the finality of courts having the last word in constitutional interpretation almost comes across as a call for rule by a Herculean judge akin to what Ronald Dworkin described in LAW’S EMPIRE. The problem with that vision, of course, is that judiciaries are plural organizations full of Herculean aspirants who can, and frequently do, disagree. Insofar as judicial systems are hierarchical organizations, “the law” under one Hercules is frequently not going to be “the law” under another.
However, Tew focuses less on the Herculean traits or partisanship of particular judges than on the need for the judiciary collectively to check and balance the power of legislatures:
Courts in developing democracies have both a protective role and a constructive role. In their protective capacity, courts serve to defend fundamental elements of the constitutional order from being altered or destroyed. This judicial role as a constraint on consolidated political power is all the more important in states accustomed to control by a dominant political party….strong judicial review reinforces democratic governance by safeguarding core structures of democracy from being eroded by political actors (p. 3).The examples Tew uses and the vision of rights on which she bases her support for strong judicial review and an activist judiciary echo decisions that advanced social justice such as those made by the Warren Court in the USA. But it is important to note that strong judicial review does not ensure compliance by the rest of the government. The success of democratic development and strong judicial review clearly depends on whether the different branches of government check and balance in an environment of trust and respect. Regardless, the judiciary remains a weaker, if not the least dangerous branch of government (Bickel).
For instance, despite the U.S. Supreme Court’s decision in BROWN V. BOARD OF EDUCATION (1954), the mobilization of the military was required to desegregate schools in Little Rock, Arkansas and in Alabama. When the U.S. Congress has pushed back against the court, as it did regarding Communist party prosecutions (DENNIS V. U.S.) or congressional investigations, the Supreme Court has found ways to retreat (e.g., BARENBLATT V. U.S., WATKINS V. U.S.).
Accordingly, despite Tew’s calls for judicial activism, one wonders what reservoir of power Southeast Asian judiciaries could rely on to challenge a hostile legislature. She encourages courts to use purposive, proportional analysis to justify their decisions and ground them on clear principles of constitutional interpretation (pp.150-151). Thus, in SIVARASA RASIAH, the Malaysian court set forth a basis for the constitutional scrutiny of statutes that echoes the U.S. Court’s use of tiers of scrutiny in its equal protection cases or the Canadian Court’s analysis of statutes under section 2 of the Charter:
The test here is whether the legislative state action is disproportionate to the legislation it passes…whether (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective (p.150).While the use of such clear procedures will lend credence and legitimacy to a court’s decision, it does not necessarily ensure that the legislature will abide. Her discussion of CHNG SUAN TZE V. MINISTER OF HOME AFFAIRS demonstrates this. The Singapore Court of Appeals struck down part of the Internal Security Act that gave the President great discretion in deciding who could be subject to preventive detention. In response, the legislature amended the constitution to remove judicial jurisdiction over decisions under the Internal Security Act. As soon as the detainees were released, they were immediately re-arrested under the amended security act (109ff). Thus, a determined Parliament can find ways to respond to a court with which it disagrees.
While the Malaysian and Singaporean constitutions may give the courts the last word in constitutional interpretation, the assignment of authority does not undermine the capacity of the legislature to act as an independent and rival interpreter of the constitution’s meaning. Nor does this allocation of authority ensure that courts and judges will be immune to partisan or other influences when interpreting the constitution or reviewing laws. Regarding this issue, Tew might have added discussion of the process by which judges are appointed in Malaysia and Singapore. This would give the reader a clearer sense of the extent to which disputes between courts and parliaments may be colored by partisanship.
Readers may also ask what caused the respective courts to change their mind and challenge parliament as the Malaysian court did in the SEMENYIH JAYA decision. Was the decision to strike down a constitutional amendment and take back jurisdiction based on a judicial change of mind? Did the composition of the court change? Tew’s discussion would be strengthened and clarified with more background on the manner in which the composition of the respective courts change.
Tew’s work raises the important matter of the nature of constitutional amendment in general. Whereas a system, such as that in the USA where the amendment process is extraordinarily arduous, may make it too difficult to amend constitutions, the system in Malaysia and Singapore seems to make amendment too easy. Scholars have yet to identify an ideal sweet spot between those poles. Tew’s analysis only heightens the importance of such discussions.
These several comments are by no means gratuitous criticism. Through her analysis and commentary, Tew revisits and forces readers to reconsider the scope and definition of judicial power in a comparative context. CONSTITUTIONAL STATECRAFT inspires readers to make many marginal notes and scribble marginal questions as Tew raises questions about western notions of constitutionalism while presenting fresh insights into Southeast Asian judiciaries. It is an insightful work that belongs on the bookshelves of all comparative scholars.
CASES:
United States:
BARENBLATT V. UNITED STATES, 360 U.S. 109 (1959).
BROWN V. BD. OF EDUC., 347 U.S. 483 (1954).
DENNIS V. UNITED STATES, 341 U.S. 494 (1951).
WATKINS V. UNITED STATES, 354 U.S. 178 (1957).
Malaysia:
INDIRA GANDHI A/P MUTHO V. PENGARAH JABATAN AGAMA ISLAM PERAK & ORS (FC Mal) [2018] 1 Malayan L.J. 545 (F.C.).
SEMENYIH JAYA V. PENTADBIR TANAH DAERAH HULAL LANGAT [2017] 3 Malayan L.J. 561 (F.C.).
SIVARASA RASIAH V. BADAN PEGUAM MALAYSIA & ANOR. [2010] 2 Malayan L.J. 333 (F.C.).
Singapore:.
CHNG SUAN TZE V. MINISTER OF HOME AFFAIRS [1988] 2 Sing. L. Rep (R.) 525 (SGCA).
REFERENCES:
Bickel, Alexander. 1962. THE LEAST DANGEROUS BRANCH. New Haven: Yale University Press.
Dworkin, Ronald. 1986. LAW’S EMPIRE. Cambridge: Harvard University Press.
© Copyright 2022 by author, Mark Rush.
