Conclusion

Constitutional Statecraft in Asian Courts offers at once an engaging analysis of Southeast Asia’s unique constitutional context as well as a broader narrative that should resonate in many countries across Asia that are also grappling with colonial legacies, histories of authoritarian rule, and societies polarized by race, religion, and identity. It explores the judicial strategies used for statecraft in Asian courts, including the elaboration of specific mechanisms that courts can use to employ to entrench constitutional basic structures and to protect rights in a manner that is purposive and proportionate. The book’s analysis informs its readers how courts in Asia’s emerging democracies can chart a path forward to help safeguard the constitutional core and to build an enduring constitutional framework.

Judicializing Religion

Religion has become one of the great fault lines of modern Malaysian politics and adjudication. This chapter focuses on the role of religion and religious freedom in the contemporary Malaysian state. It outlines the constitution-making process to locate the place of Islam and religious liberty within the Constitution’s generally secular original framework. Over the past quarter century, the politicization and judicialization of religion has led to an expansion of Islam’s role, fueling polarizing debate over the Malaysian state’s identity as secular or Islamic. Courts have contributed to elevating Islam’s position by deferring jurisdiction to the Sharia courts and expansively interpreting Islam’s constitutional position. The chapter then turns from the descriptive to the prescriptive. It discusses how courts can draw on the constitutional basic structure doctrine to entrench the judicial power of the civil courts to reclaim jurisdictional areas that engage constitutional rights which in the past they have ceded to the religious courts, such as apostasy. It also outlines how courts can use a purposive interpretive approach in line with the Constitution’s framework of protection for religious minorities and individual rights. Finally, it shows how the court can operationalize a proportionality analysis to closely scrutinize government regulations that restrict religious freedom or freedom of expression.

Courts in Transition

This chapter makes the case for an empowered judicial role in the constitutional governance of emerging democracies in Asia. Courts play a significant role in checking political power in dominant party states and building foundational principles of constitutionalism for aspiring democracies. In the face of concentrated political power, the judiciary can strengthen its institutional role through strategic assertiveness, as the Malaysian apex court has exhibited in two recent landmark decisions: Semenyih Jaya v. Pentadbir Tanah Daerah Hulu Langat (2017) and Indira Gandhi v. Pengarah Jabatan Agama Islam (2018). How can courts develop the constitutional jurisprudence necessary to support a more empowered judicial role? The chapter argues that the constitution’s foundational elements—the constitution’s original framework, the separation of powers, and the rule of law—provide a core basis for courts to safeguard and draw on to structure constitutional adjudication. It explores the specific legal mechanisms that courts can invoke in practice: a constitutional basic structure doctrine, purposive interpretation, and proportionality analysis in constitutional adjudication. Taken together, these judicial interventions can equip courts in developing democracies to defend the constitution’s core structure and to construct principles of constitutionalism.

Constitutional History

This chapter explores the constitutional founding and road to independence in the post-colonial states of Malaysia and Singapore. It provides the historical context for understanding the constitution’s text and the foundations of the constitutional framework. Understanding the broader purposes that motivated the constitutional project provides us with the context necessary to interpret the constitutional text. For example, Malaysia’s constitutionalization of Islam as the state religion was part of a social contract memorialized in a constitutional bargain that also sought to protect minorities and individuals. This historical context is vital for understanding the role that religion would play in the new constitutional order. More generally, the constitutions of Malaysia and Singapore set in place an overarching framework for governance that envisaged continuing constitutional construction in these independent democracies. Rather than mandating a narrow focus on the framer’s specific expectations, as reflected by the Singapore Court of Appeal’s originalist approach, constitutional history helps reveal the foundational elements of a polity that can guide a contemporary adjudication approach. Faithfulness to the constitution calls for a deeper understanding of the foundational principles that underlie its structure and rights guarantees.

Constitutional Adjudication and Constitutional Politics

This chapter explores the role of courts and how judicial review operates in practice within the wider political context of Asian states historically dominated by consolidated political power. Judiciaries in Malaysia and Singapore are empowered by their written constitutions to invalidate legislation and executive actions for rights violations. Yet these Asian courts have traditionally adopted an insular, rigidly formalistic approach toward constitutional review, marked by extensive deference to the political branches, stridently rejecting notions of implied constitutional principles or basic structures. This chapter consider why. Constitutional adjudication in practice is inextricably bound to constitutional politics. Courts facing a dominant political party operate within a challenging environment for exercising strong judicial review. In the 1980s, the government’s aggressive backlash to judicial decisions with which it disagreed resulted in constitutional crises in Malaysia and Singapore. Chastened, the courts retreated to a subdued position toward constitutional review. Over the next two decades the Malaysian apex court refrained from invalidating any federal statute, while its Singaporean counterpart has not once struck down any law. Recent displays of assertiveness by the Malaysian Federal Court, however, show signs of a reinvigorated judiciary. The chapter tells the story of the courts’ rise, fall, and uneven journey toward constitutional redemption in these Asian democracies.

Introduction Building Constitutionalism in Fragile Democracies

What role do courts play in developing constitutional democracy in Asia? Constitutional Statecraft in Asian Courts explores the role of judicial review and constitutionalism in safeguarding democratic governance and facilitating constitutional governance. It offers an in-depth look at contemporary Malaysia and Singapore, helping us understand how courts engage in constitutional state-building even as they confront dominant political parties and negotiate democratic transitions. The book considers how the judiciary can negotiate institutional power to consolidate its position vis-à-vis the dominant political branches of government. It also examines the facilitative role courts can play in crafting the foundational principles of an evolving constitutional order. The judicial strategies evident in Malaysia and Singapore suit the challenges of many other emerging Asian democracies, providing both guidance and caution as these states negotiate their emerging constitutionalism. At the heart of this book is an account of how judicial strategies of constitutionalism can sculpt the contours of state-building. It is, in brief, about how courts engage in constitutional statecraft.

Balancing Security and Liberty

Emergency powers and national security laws have long been features of a powerful state in Malaysia and Singapore. In addition to extensive emergency regimes, these states have employed security laws authorizing preventive detention as well as public order statutes regulating expression and assembly. Courts have traditionally been highly passive in scrutinizing government actions taken in the name of national security or public order, refusing to assess whether the vast powers wielded by the executive were reasonable. This chapter makes the case for greater judicial scrutiny over whether government restrictions on individual liberties are justified. Proportionality analysis offers a rigorous, yet flexible, framework that courts can use to engage directly with the government’s justifications of national security and public order. And on some occasions, courts may have to employ a constitutional basic structure doctrine to strike down legislative attempts to pass statutes or constitutional amendments aimed at removing judicial review or eroding institutional safeguards. These judicial mechanisms would aid courts in the critical, yet sensitive, endeavor to balance security and liberty.

The Rule of Law

Accounts of the rule of law in some Asian states have typically been portrayed in highly formalistic terms. Singapore, for example, has long been characterized as having a stable, efficient legal system that perpetuates a “thin” rule of law in service of the state’s objectives. This chapter constructs a more robust conception of the rule of law, which is fundamentally connected to the courts’ power of judicial review. The Malaysian Federal Courts decision in the 2018 case of Indira Gandhi v. Pengarah Jabatan Agama Islam reveals a notion of the judicial power of the courts as a necessary corollary of the rule of law. Further, the Federal Court expressly declared the civil courts’ judicial review power and constitutional interpretation as basic features of the constitution that cannot be altered by formal amendment. This rule of law conception is in line with the principle of legality, premised on the notion that all power has legal limits, as the Singapore Court of Appeal has articulated. This emerging account of the rule of law is inextricably linked to judicial review as integral to the constitution’s core framework.

The Separation of Powers

This chapter explores the judiciary’s institutional role in maintaining balance among the branches of government. To contextualize the judiciary’s fraught position, it recounts how Malaysia’s dominant coalition government infamously amended the Constitution in 1988 to remove the provision vesting judicial power in the courts. The Malaysian judiciary’s response was initially anemic, with the Federal Court appearing to concede that the courts’ powers were now at the mercy of the legislature. This chapter uses as its central case study the landmark decision of the Malaysian Federal Court in the 2017 case of Semenyih Jaya v. Pentadbir Tanah Daerah Hulu Langat. For the first time in decades, the Court struck down a federal statute, declaring that constitutional judicial power is vested solely in the courts and nullifying the 1988 constitutional amendment. Semenyih Jaya represents a landmark in Malaysia’s constitutional jurisprudence. It recognized judicial power and the separation of powers as features so central to the constitutional framework that they cannot be altered by the legislature, effectively establishing a basic structure doctrine applied to the Malaysian Constitution. With this affirmation of judicial power, the Malaysian Federal Court reanimated the separation of powers as an effective principle of checks and balances.

Rights Rhetoric

Two competing narratives of rights constitutionalism have emerged in the rights discourse in Asian democracies. One account is often characterized as a universalist approach toward individual rights, driven by Western notions of liberalism and focused on civil and political liberties. In contrast, some Asian states have asserted a relativist approach toward rights, prioritizing communitarian interests and economic development over individual freedoms of expression, assembly, and personal liberty. Pitted against each other, these two frames have produced dichotomies perceived as being in tension with each other: between universalism and relativism, between individualism and communitarianism, and between civil-political rights and economic development. These constructed dichotomies perpetuated during the “Asian values” debate have continued even in the aftermath of that discourse to shape rights rhetoric and practice in the states that had been its strongest proponents. Yet the established political and constitutional paradigm has begun to shift. The changing political and popular landscape has been due in part to sustained political participation and growing rights consciousness since the turn of the twenty-first century in modern Malaysia and Singapore. This emerging culture of constitutionalism sets the backdrop for developing constitutional adjudication in these aspiring Asian democracies.