Academic journal article Washington International Law Journal

Constitutional Fig Leaves in Asia

Academic journal article Washington International Law Journal

Constitutional Fig Leaves in Asia

Article excerpt

I. Introduction

Constitutional landscapes in Asia are littered with fig leaves. The proverbial fig leaves referred to herein are the legal principles, doctrines, and theories of interpretation that judges appeal to when they resolve constitutional disputes. But in the post-legal-realism world that we live in today, we have all come to accept that many of the legal techniques judges purport to apply are merely rhetorical devices by which they seek to cover their true motivations. This is so in the West and, as this article explores, it is also true in Asia.1

Asian judges, like many of their Western counterparts, would have us believe that adjudication is merely a mechanical affair that involves applying the law to the facts of a specific case. In so doing, judges seek to offer us hope that the law can truly be separated from politics, and judges merely follow pre-determined rules and exercise little discretion when making decisions.2 This is true of the (more) liberal or active courts that exist in Hong Kong, India, and Taiwan, and it is equally applicable to the conservative or passive courts in Malaysia and Singapore.

For the liberal courts in Asia, their reform-minded judges understandably need legal fictions to protect themselves from the maelstrom of politics when they hand down constitutional decisions that may incur the government's displeasure and/or public outrage. Insofar as these judges can point to the Constitution, they can (hopefully) deflect any accusations that they have intentionally interfered with the legislative prerogatives of the political branches of government.

But conservative courts in Asia need their legal fictions too. The political reality is that in both Singapore and Malaysia, the State has been governed by the same ruling party or coalition since each nation's independence and will be so governed for the foreseeable future.3 More significantly, both countries have experienced judicial crises, which have cast a pall over the state of constitutional review. In Malaysia, two Supreme Court judges, one of whom was the Lord President, were impeached and removed based on trumped-up charges in 1988.4 In Singapore, the judiciary was equally shaken after Parliament passed a series of constitutional and statutory amendments-which ousted the judicial review of executive decisions taken under the Internal Security Act-within a month of the Court of Appeal's ruling. In that decision, the judges held that they would henceforth objectively review the President's exercise of his discretion to detain persons under the impugned Act.5 Where legislative and executive power is consolidated by a semi-permanent party or coalition, the dominant political entity in question can display its displeasure more easily, either by eliminating judicial review or even ousting the judges themselves.6 Judges operating in such political systems are not oblivious to this fact. Due to external political constraints, judges likely feel compelled to rule in favor of their government or at most rule against the government in modest ways. But these judges, concerned about their own legitimacy in the public eye, would also feel the need to convince the people that they are able to discharge their judicial duties without fear or favor, even if they can realistically achieve very little. Therefore, fig leaves are used by passive judges to justify to the public that a pro-government result was inevitable as it was merely mandated by the law, rather than the result of any judicial capitulation to legislative and executive power.

This article uncovers and examines three constitutional fig leaves that are prevalent and flourishing in Asia: 1) formalism and its conceptual variants; 2) the exercise of judicial review that is merely symbolic; and 3) the invocation of vacuous constitutional doctrines. One must note at the outset that the fig leaves identified in this article are not consistently applied in the jurisdictions surveyed, as judges in different countries rely on varying types of fig leaves. …

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