Constitutional democracy is under threat worldwide, including in Asia itself. Witness the banning of the political opposition in Cambodia, the ongoing role of the military in Thailand, or the actual and threatened expansion of executive authority in the Philippines. These trends also parallel broader patterns of democratic backsliding or erosion across the globe. Identifying ways in which courts can effectively help counter these trends is thus of enormous value in 2020, and beyond.
In her important new book, Constitutional Statecraft in Asian Courts, Yvonne Tew provides just such an account: she argues that courts in Asia – and specifically in common law, South-East Asian countries such as Malaysia and Singapore — can and should play a greater role in both helping build and protect resilient constitutional democratic systems.
A role of this kind, Tew argues, is clearly desirable from a constitutional theoretic standpoint: building a successful democracy, according to Tew, depends more on the creation of effective institutions than individual ‘heroic’ political leadership; and courts can play a central role in the protection and creation of these institutions through appropriately robust but flexible forms of review.
Tew suggests that courts in common law Asia have the formal legal-institutional foundation on which to engage review of this kind: they have entrenched written constitutions, a history of (at least semi) independent review, and formal constitutional commitments to the separation of powers, rights, and the rule of law.1 To date, they have tended to exercise this authority in a quite restrained, deferential way. But Tew suggests that there are indications in both countries, and especially Malaysia, of a more robust approach to the judicial role.2
One of the most important contributions of the book is to suggest a doctrinal toolkit for courts wishing to engage in review of this kind – a toolkit based on a purposive approach to constitutional interpretation or ‘construction’,3 proportionality reasoning and the ‘unconstitutional constitutional amendment’(UCA) doctrine.4 And Tew suggests that this toolkit must be exercised ‘strategically’ by courts,5 including with close attention to the timing of court decisions.
Tew’s account of historical constitutional trends in Malaysia and Singapore is also a distinct and valuable contribution to the field. In chapters 2 and 3 of the book, Tew provides a rich contextual and historical account that builds in extremely productive ways on the several excellent single-country case-studies on this topic.6
All of these arguments make a serious contribution to existing comparative constitutional scholarship. It is notable that Tew goes further than many other leading scholars in this context in arguing for a role for courts in both democratic ‘hedging’ and building.7 She also goes further in linking purposive interpretation and proportionality analysis to these judicial projects. And she makes a persuasive case that these tools help provide both sufficient legal justification and flexibility needed for successful ‘constitutional statecraft’ by courts.
The book also leaves open questions for further reflection: first, are the tools Tew identifies as key tools of judicial statecraft – i.e. purposive interpretation, proportionality reasoning and the UCA doctrine, together with the careful timing of court decisions – ultimately necessary to successful judicial statecraft in all cases, or rather helpful tools that may increase its chances of success in some subset of cases? My own sense is that they may be more or less necessary for effective constitutional statecraft in Malaysia and Singapore, but not necessarily elsewhere. In some cases, textualism or pragmatism may be consistent with a form of democratic hedging by courts. And proportionality may increase judicial flexibility but is not required for it. The US Supreme Court is arguably the exemplar of the use of the ‘passive virtues’ for strategic ends,8 and yet it relies on a form of tiered scrutiny rather than any explicit proportionality-style analysis.9
Second, how confident is Tew that the nascent trends she identifies of greater judicial assertion and adventurism are likely to last, especially in Singapore? Tew herself notes the dialectic or unsteady nature of change in Malaysia in the last few decades; and the intimations of change she notes in Singapore seem at best incipient. It may, therefore, be too early to say that there is nascent support within Singapore, especially for the kind of vision Tew articulates.
Ultimately, however, this is a work of scholarly statecraft: it aims both to persuade readers globally of the importance and lessons of these Asian cases for theorizing about the relationship between judicial review and democracy globally, and to persuade common law Asian judges to follow the path set out by Tew herself. And in that context, telling those judges they are already on the path set out in the book seems more than politic. It employs exactly the same kind of mix of principle and pragmatism Tew is calling for from judges.
We can only hope that, like Tew, they are up to the task.
- Yvonne Tew, Building a more Perfect Democracy in Asia: A Realistic Theory of Courts as Democracy Protectors and Promoters (2020).
- Id. at 62-65.
- Compare Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453 (2013).
- See Tew, supra note 1. On this doctrine more generally, see, e.g., Yaniv Roznai, Unconstitutional Constitutional Amendments: The Migration and Success of a Constitutional Idea, 61 Am. J. Comp. L. 657 (2013); Gary Jeffrey Jacobsohn, An Unconstitutional Constitutional Constitution? A Comparative Perspective, 4 Int’l J. Const. L. 460 (2006); Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (2019); Rosalind Dixon & David Landau, Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment, 13 Int’l J. Const. L. 606 (2015).
- Tew, supra note 1, at 9.
- See Andrew Harding, The Constitution of Malaysia: A Contextual Analysis (2012); Kevin Y.L. Tan, The Constitution of Singapore: A Contextual Analysis (2015); Jaclyn L. Neo (ed.), Constitutional Interpretation in Singapore: Theory and Practice (2016); Po Jen Yap, Constitutional Dialogue in Common Law Asia (2015).
- Compare Samuel Issacharoff, Fragile Democracies, 120 Harv. L. Rev. 1405 (2006).
- See, e.g., Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1986); Rosalind Dixon & Samuel Issacharoff, Living to Fight Another Day: Judicial Deferral in Defense of Democracy, Wis. L. Rev. 683 (2016).
- For an insightful analysis of this, and which also suggests that the US itself may be moving toward a more proportionality-style approach, see Vicki C. Jackson, Constitutional Law in an Age of Proportionality, 124 Yale L.J. 3094 (2014); Jamal Greene, Rights as Trumps, 132 Harv. L. Rev. 28 (2018).