Judging the Constitution Conference

Poster.pdfBy Preston Wong & Sri Balan s/o Krishnan

On 28 and 29 May 2015, the NUS Centre for Asian Legal Studies organized a landmark conference titled Judging the Constitution: The Theory and Practice of Constitutional Interpretation in Singapore. This two-day conference saw over 10 constitutional scholars presenting various reflections on the formation, transformation and reformation of Singapore constitutional law. The papers presented at the conference will be published in an edited volume by Routledge Publishing by the end of the year.

In his opening keynote speech titled Interpreting the Constitution, the Honourable Mr V K Rajah SC gave an in-depth review of the state of constitutional interpretation in Singapore. He also briefly highlighted the role of Constitutional Conventions in providing a “complete understanding of how the Constitution works in practice.” Some conventions, such as “the practice of the House of Commons, (which is relevant where the Standing Orders of our Parliament are silent)” are Colonial legacies. Others, like “the Government’s practice to consult the President before introducing constitutional amendments that affect the President’s discretionary powers, [and] the written Principles agreed between the President and the Government in the area of protection of reserves” are autochthonous developments, which are “clearest example of soft constitutional law”.

The opening speech was also noteworthy for the AG’s commitment towards continuous engagement in explicating constitutional principles in Singapore. The AG stressed that, “[a]part from litigated cases, legal advisers and legislative drafters in [the AGC handles] on a daily basis many matters that engage the Constitution and its attendant principles. Their advice on constitutional matters is taken seriously by government officials and proposals have been significantly changed as a result.” Simply put, “interpreting the Constitution is not a rarefied exercise” in Singapore.

While a comparative discourse on Constitutionalism cannot be ignored, the challenge then is a clear directive on how to maintain fidelity to the text of the Singapore Constitution. For the AG, this fidelity is achieved when judges remain faithful to the text and the structure of the Constitution, as well as the principles that undergird the text and the Constitution. Lastly, the AG paid a fitting tribute to the then Prime Minister Lee Kuan Yew and his colleagues for devising a Constitution that served Singapore well for the past 50 years. Yet, its future rests on the conviction and boldness of each succeeding generation to amend the Constitution, “to reflect its aspirations and our national conditions.”

In explaining the motivation for the conference, Prof Jaclyn L. Neo, who is leading the research project, noted that constitutional interpretation in Singapore has experienced significant quantitative, qualitative and contextual shifts. She points out, for example, that out of 127 reported cases on constitutional issues, over a third was decided in the past decade. This strongly suggests that constitutional law/interpretation should not be perceived as an enveloped theory but a developing practice in Singapore.

This coincides with Prof Thio Li-ann’s astute observations of a ‘sea-change’ in constitutional law. Building upon her previous work, Prof Thio noted a shift in judicial attitude in the past decade towards a new paradigm of ‘principled pragmatism’, involving more principled modes of judicial reasoning towards constitutional issues alongside the pragmatic stance of earlier benches. Prof Neo and Prof Swati Jhaveri in turn explored the use and potential of balancing and proportionality analyses respectively, inspiringly demonstrating their aspirational, longitudinal perspectives of Singapore’s constitutional law development.

Longtime constitutional scholar Prof Kevin Tan too welcomed the more detailed constitutional exposition in our courts since 2006, especially the emerging development of the Westminster model as an interpretive theory in Singapore. He, however, highlighted possible confusion in the recent judgment of Yong Vui Kong regarding the ‘basic structure’ and ‘basic features’ doctrines, and delineated their conceptual differences. This example actually leaves some food for thought for Prof Thio’s antinomy of ‘principled pragmatism’: could the journey of principled pragmatism proceed in an unprincipled manner? On a separate note, might this just be an intermediate phase to future non-pragmatic constitutional interpretation, as Singapore’s socio-political landscape continues to change?

A salient issue arising from such a changing landscape is the freedom of speech. Prof David Tan raised some refreshing observations regarding the Neo-Confucian model assumed by our Government, the type of democracy and the four walls approach in Singapore. What was most interesting was the discussion of recent cases involving Roy Ngerng, Alex Au and Amos Yee, and how our courts might respond to future article 14 challenges.

The upshot then is a more lively inter-disciplinary academic discourse integrating themes from inter alia History, Sociology and Political Science. In fact, this eclectic trend was already noticeable during the conference as Prof Michael Dowdle spoke of political constitutionalism in Singapore, while Prof Victor Ramraj envisioned Singapore as the next centre for globalization and reflected upon the possible implications for constitutionalism. These trends are certainly much welcomed.

While the core principles of the Constitution may be discerned by way of textual and structural analysis, there are penumbral meanings that can only be settled by contextual interpretation. Even though the Singapore Constitution did not have, as the AG puts it “a storied birth”, it did not originate in vacuo either. Thus, while fidelity is certainly preferred, it may not ensure finality in unearthing all the values and principles embedded in the Constitution. As the AG accordingly noted, “[f]idelity to the constitutional text does not stop at giving effect to the literal meaning of the text. Sometimes, value judgments have to be made in interpreting and applying the Constitution.” This suggests that contextualism rooted in hermeneutics may perhaps be a useful device to supplement (while not supplanting) a textual interpretation of the Constitution.

As the courts navigate between the text, history, and new challenges, their continued exposition of the constitution will have an impact on ensuring a progressive, transparent and an enlightened discourse on the nature of political power in Singapore as well as institutional and constitutional limits on this exercise of this power.

Preston and Balan are law students at NUS and provided valuable assistance at the conference. Preston has a prior B.B.A. in NUS Accountancy, while Balan has a B.Soc.Sci (Hon.) from NUS Political Science and a PGDE from NTU/NIE. 

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