Joint Symposium on “Towering Judges”: Judicial Minimalism as Heroic: Chief Justice Chan Sek Keong, Singapore’s Unlikely Towering Judge

[Editor’s Note: This is part of the joint I-CONnect/IACL-AIDC Blog symposium on “towering judges,” which emerged from a conference held earlier this year at The Chinese University of Hong Kong, organized by Professors Rehan Abeyratne (CUHK) and Iddo Porat (CLB). The authors in this post formed part of a panel on “Towering Judges in New/Mixed Constitutions.” The introduction to the joint symposium can be found here. Parts of this blog post are extracted from the paper presented by the authors at the conference and to be published with the other papers from it.]

—Jaclyn L Neo, National University of Singapore, and Kevin YL Tan, National University of Singapore and Nanyang Technological University

Judges can only ‘tower’ in environs where appropriate opportunities exist for them to do so. For that reason, they are more likely to be found in common law than civil law jurisdictions. They are also more likely to emerge in younger jurisdictions where the law is less settled or where local conditions require a significant departure from the established judicial canons. On that score, a towering judge should have emerged in Singapore a long time ago. A small but new jurisdiction that attained its independence in 1963, no major judicial figure, much less a towering judge was to appear until Chan Sek Keong was appointed third Chief Justice of Singapore in 2006.

Towering judges don’t always look the part. A small, shy, retiring man, Chan looks much more like an erudite academic than the judicial giant he is. Yet, it was he who single-handedly transformed the jurisprudence of public law in Singapore through his judgments and leadership of the court. Under his leadership, public law – which had, for half a century been treated as a marginal if inconvenient subject – moved to the mainstream of judicial discourse. Chan’s significance as a towering judge may be reflected in three ways.

First, he pushed for greater openness towards ‘nuanced engagement with academic ideas, foreign cases and international law’[1] and the abandonment of the ‘four walls’ approach to constitutional interpretation championed by the earlier court.[2] Second, a shift in the quality of the judgments towards ‘more elaborated reason-giving’[3] and with ‘greater focus on the intrinsic values of the law, such as matters of procedural fairness, and the procedural aspects of the Rule of Law and the Separation of Powers.’[4] Third, an openly welcome attitude towards public law cases. While Chan acknowledged his court’s green-light approach[5] to public law, he repeatedly emphasized the crucial function of judicial review in ensuring good governance. ‘The Rule of Law’, Chan reiterated in his most oft-cited extra-judicial lecture, ‘requires the court to determine whether any public authority has crossed the line of legality’.[6] His message was clear: lawyers bringing judicial review applications are playing a legitimate professional role in the constitutional state.

Despite Chan’s contributions, his ‘toweringness’ may well be considered limited by some matrices. His leadership of the court was quiet and solid, but no laws were struck down as unconstitutional, nor were there flamboyant clashes with the government. His approach to constitutional law may be characterised as judicially minimalist or incrementalist. At first blush, judicial minimalism contradicts the idea of a ‘towering figure’, or ‘heroic judge’ who are willing to invoke ‘an ambitious understanding of the Constitution to invalidate the decisions’ of the government.[7] Indeed, the minimalist judge has been described in counter-opposition to the ‘heroic vision of judging’, where judges see the role of the judiciary as ‘a large and potentially transformative’.[8] However, we argue that the heroic judge may be ‘towering’ exactly because he understands the limits of his role but is yet able to strategically expand democratic and constitutional space through a minimalist approach. This minimalist strategy may be necessary in jurisdictions where the scope for expansive judicial decision-making is limited. Thus, the minimalist judge who articulates broad abstract principles, while concurrently adopting narrow ratios, may be acting heroically.

This means that a towering judge must be evaluated against the conditions in which he operates. Towering is not only a relational concept, as Mark Tushnet argues in his post in this joint symposium, or a matter of influence, as Rosalind Dixon highlights in her contribution, but also a contextualized concept. When Chan became Chief Justice in 2006, the Singapore’s constitutional law was poorly developed. Judgments were brief and often did not offer detailed reasons nor engage with foundational questions about the underlying norms of the constitution.

Granted, the policy space available to judges is extremely limited[9] because Singapore has been governed by the same political party since 1959 (when it was a self-governing colony) who commands an almost hegemonic majority (since 1968). The Constitution is easily amended as are all other laws, and in this regard, the policy space for the judiciary is extremely limited. Thus, any effort to build a normative basis for constitutional law through incremental judicial minimalism, is itself a heroic endeavour.

One common justification for minimalism is that it best preserves the court’s legitimacy within the constitutional framework. Minimalism in judicial decision-making arises from court’s interdependent relationship with the political branches of government. Indeed, judicial minimalism may well be necessary if there is to be constructive constitutional dialogue between the court and the elected government. Chan’s incremental approach has led to the articulation of key constitutional principles – separation of powers, rule of law, and even the basic structure doctrine – as a part of Singapore’s constitutional jurisprudence.

Cass Sunstein divides judges into four categories: heroes, soldiers, Burkeans (or minimalists) and mutes:

Broadly speaking, Heroes are willing to invoke the Constitution to invalidate state and federal legislation; Soldiers defer to the actions of the political branches; Burkeans favour only incremental change; and Mutes prefer not to decide difficult questions.[10]

Like all typologies, Sunstein’s provides useful categorical insights into the personalities and predilections of judges, but do not really describe any particular real-life judge. The same judge could be a hero in one case, a Burkean in another and a mute in a third. We have cast Chan as a minimalist, a judge who prefers ‘small, cautious steps, building incrementally on the decisions and practices of the past … and narrow rulings, focused on the facts of particular cases.’[11] However, as Sunstein argues, ‘[s]ome Heroes present themselves as Burkeans, who are genuinely committed to incrementalism, and who reject the largest theories, but who are nonetheless willing to wield judicial power so as to invalidate legislation.’ Sunstein might well be describing Chan Sek Keong – the Burkean Hero and Towering Judge of Singapore.

Suggested citation: Jaclyn L. Neo and Kevin Y.L. Tan, Joint Symposium on “Towering Judges”: Judicial Minimalism as Heroic: Chief Justice Chan Sek Keong, Singapore’s Unlikely Towering Judge, Int’l J. Const. L. Blog, Mar. 18, 2019, at: http://www.iconnectblog.com/2019/03/joint-symposium-on-towering-judges-judicial-minimalism-as-heroic-chief-justice-chan-sek-keong/

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[1] Thio Li-ann and David Chong, ‘The Chan Court and Constitutional Adjudication: A Sea Change into something Rich and Strange?’ in Chao Hick Tin et al (eds), The Law in his Hands: A Tribute to Chief Justice Chan Sek Keong (2012) 88-119, at 118.

[2] Kevin YL Tan & Thio Li-ann, Fifty Constitutional Moments That Defined a Nation (2015) at 27–28.

[3] Thio & Chong (n 1).

[4] Tan & Thio (n 2).

[5] Carol Harlow & Richard Rawlings, Law and Administration (3rd ed., 2009) .

[6] Chan Sek Keong, ‘Judicial Review – From Angst to Empathy’ (2010) 22 Singapore Academy of Law Journal 469.

[7] Cass R Sunstein, Constitutional Personae: Heroes, Soldiers, Minimalists, and Mutes (New York: Oxford University Press, 2015) at 5.

[8] Id.

[9] Tom Ginsburg, Judicial Review in New Democracies (2003).

[10] In his 2013 article, Sunstein uses the term ‘Burkean’ to describe judges who ‘favor small, cautious steps, building incrementally on the decisions and practices of the past.’ Cass R Sunstein, ‘Constitutional Personae’ [2013] 1 Supreme Court Review 433. These same judges are described as ‘Minimalists’ in his 2015 book. Cass R Sunstein, Constitutional Personae: Heroes, Soldiers, Minimalists, and Mutes (2015).

[11] Cass R Sunstein, ‘Constitutional Personae’ [2013] 1 Supreme Court Review 433.