Taking Constitutional Statecraft Beyond the Courts – a Book Review of Yvonne Tew’s “Constitutional Statecraft in Asian Courts”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Ming-Sung Kuo reviews Yvonne Tew’s book on Constitutional Statecraft in Asian Courts (Oxford University Press, 2020)]

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— Ming-Sung Kuo, Associate Professor, University of Warwick, UK

National experiences in Asia have abundantly enriched the gene pool of comparative constitutional law thanks to great efforts of scholars from Asia and beyond (examples here, here, here, and here). Yvonne Tew’s Constitutional Statecraft in Asian Courts is a welcome addition. Comparing Malaysia and Singapore, Tew tells a well-crafted story of how courts in aspiring democracies in Asia have managed to resurrect from regimes long dominated by political forces. With Malaysia – the better half in her constitutional tale of the two states – in mind, she contends that courts can strategically empower themselves and rein in political power with judicial techniques (p. 6). Ending her tale with mixed pictures of judicial performance in matters of religion and national security (chs 7-8), Tew parts company with her fellow travellers who have suggested a less assertive judicial role in their narratives of the emergence of constitutionalism in Asia (pp. 128-30, 181-82). Tew prescribes a robust role for courts in the realms where state-building continues and democracy remains fragile (pp. 179-88, 204-19).

Yet, beneath the surface-level divergence lies a common thread in Tew’s and her companions’ narratives: the importance of judicial strategy in the constitutional renaissance in Asia (pp. 4-12, 125-40) (examples here, here, here, here, and here). In this contribution, I interrogate the notion of judicial strategy at the core of Tew’s tale of constitutional statecraft.  With judicial strategy, institutional self-preservation, and doctrinal borrowing picked out, I suggest that court jurisprudence-oriented narratives of constitutional renaissance have taken a reductive view of constitutional statecraft with the latter being equated with the judicial deployment of doctrinal techniques. To show why we need to extend the focus beyond the courts in understanding constitutional statecraft, I start with Tew’s crown doctrine: the basic structure doctrine.

1. ‘From Time So Memorial’: The Founding, the Basic Structure Doctrine on Steroids, and the Ancient Constitution in Disguise

In contrast to the defensive conception of the basic structure doctrine – or rather, the unconstitutional constitutional amendment doctrine – as the constitutional fallback in battling against abusive constitutionalism, a basic structure doctrine on steroids emerges from Tew’s account. According to Tew, Malaysia’s 1988 Constitutional Amendment that subjected judicial jurisdiction to legislation eroded the rule of law and separation of powers undermined the basic structure of the 1957 Federal Constitution. Only when the 1988 Amendment was virtually nullified by the Federal Court’s two historic judgments – Semenyih Jaya in 2017 and Indira Gandhi in 2018 – were the rule of law and separation of powers restored with the rise of the judicial power after the latter’s thirty years of withering (pp. 95-104, 113-17). Furthermore, Tew argues that the basic structure doctrine be deployed more innovatively to steer Malaysia towards constitutional democracy (pp. 140-47). 

Notably, Tew’s constitutional tale is framed as one of postcolonial state-building. The moment of decolonization marks the beginning of constitutional statecraft (pp. 35-41, 70-78).  In Tew’s account, Malaysia’s constitutional founding (as well as Singapore’s) stands as the peak of constitutional statecraft: the 1957 Federal Constitution in its original condition embodies the democratic will and the collective work of different identity groups in the Malayan pluralist and diverse society (pp. 74-75). Through this lens, the post-founding constitutional development reads like a story of constitutional decay with the pristine original constitution stained with constitutional amendments dictated by political forces (pp. 78-81). Returning to the founding becomes the road to constitutional redemption.    

Noticeably, the 1988 Amendment was only nullified after it had been in existence for thirty years. Instead of simply defending the constitutional core amidst an abusive legal blitzkrieg, the basic structure doctrine in Tew’s tale is intended to restore the Constitution to its untainted condition (p. 143). Constitutional statecraft underpinned by the basic structure doctrine looks to a time memorial – the pristine founding – for redemption. The constitution to be redeemed in Tew’s tale is the one set in a foregone moment, suggesting a retrogressive constitutional outlook that departs from the modernist tradition in which the post-founding constitutional development manifests the idea of progress. In contrast to the modernist progressive temporality, constitutional time in postcolonial Malaya as revealed in Tew’s basic structure doctrine on steroids gives away the idea of an ‘ancient constitution’ in English history. As a result, Tew’s crown doctrine evokes more of a common law constitutionalism than of the written constitution-embedded idea of constitutional supremacy. Can the basic structure doctrine unshackle Malaysia from numerous constitutional amendments and set her free?  

2. ‘It All Comes Down to Doctrines’: Empowerment, Justification, and the Missing Link of Judicial Agency    

In her justification of the judicial nullification of the 1988 Amendment, Tew cited the example of Taiwan where the Taiwan Constitutional Court (TCC) struck down the 1999 Constitutional Amendment in 2000 on grounds of the implied limits of constitutional amendment (p. 141, 146). Notably, the TCC’s 2000 decision was decided before the unconstitutional constitutional amendment doctrine emerged as an exemplar of ‘transnational constitutionalism’. In contradiction to Tew’s characterization of the basic structure doctrine as a means of judicial self-empowerment (pp. 139-40), a contentious debate over the limits of amendment power at Taiwan’s transitional moment took place outside the judicial forum: What constituted constitutional identity that would be off-limits to constitutional amendment? Would Taiwan require a new constitution to accommodate a comprehensive reform that would change constitutional identity? In Taiwan, the basic structure doctrine and the concept of unconstitutional constitutional amendment came to public attention for constitutional reform, not judicial self-empowerment. Moreover, the judicial adoption of the basic structure doctrine did not take shape in Taiwan autonomously. The momentous 2000 decision came into being because the TCC deliberately chose to react to the contemporaneous political dynamic in a particular way. Only when the TCC felt the need to take a certain course of action in light of public opinion did it sanction the basic structure doctrine in the way it chose to justify its momentous action. In sum, either for empowerment or for justification, judicial agency determines a constitutional doctrine’s shape and meaning.

By this light, it is doubtful whether Tew’s doctrinal prescription for the judiciaries of Malaysia and Singapore will move them forward. Apart from the basic structure doctrine, Tew identifies purposive interpretation and proportionality analysis as the tools of judicial self-empowerment. Tew credits these three judicial techniques with equipping the court with the doctrinal means to face off against forces that stand in Malaysia’s way towards constitutional democracy (pp. 62-64). Thus viewed, doctrine seems to empower the judiciary vis-à-vis the political branch in its own right. Yet, as the TCC example suggests, doctrines may be deliberately invoked by the court to justify what it has decided to do rather than to prepare it for what it may do in the future. Also, the Taiwan experience suggests that the scope of the basic structure doctrine is open to interpretation. It is judicial agency that gives shape and teeth to it. Moreover, as discussed in the literature, purposive interpretation and proportionality analysis do not necessarily lead to better protection of rights. Doctrines can neither empower nor justify judicial choices on their own. Rather, doctrinal borrowing is a function of judicial agency. With judicial agency brought to the fore, we rather see the slippery concept of judicial strategy. 

3. ‘Heads I Win, Tails You Lose’: The Slippery Concept of Judicial Strategy  

As noted above, judicial strategy has evolved as a common thread in scholarship that aims to account for how courts have figured in democratic transition in Asia. Reading case law, scholars have made a gestalt of these courts as institutional actors thinking strategically.  Taking a holistic approach, they suggest that Asian courts in transition be appreciated macroscopically. Judiciaries are praised for deploying doctrinal tools adroitly to carve out a space for judicial manoeuvring in their interaction with the political branches. Individual judgments are read through the lens of judicial gestalt. A judgment that pronounces on grand principles but abruptly comes to terms with the political branch’s stance is praised for strategically laying the doctrinal foundation for the future with a tactical retreat.  Alternatively, when a case is decided against the political branch without much reasoning, the judiciary is credited with practicing judicial minimalism for democratic considerations.  Courts in transition thus look like the forever winner in the strategy game of constitutional politics: heads I win, tails you lose!

Truly, any apex court may side with the political branch in one case and change sides in another. We cannot judge a judicial decision by narrow-mindedly focusing on the result. Yet, whether the court is actually planning strategically for the next round of constitutional battles when it sets out grand doctrines but defers to the political branch’s stance can only be answered in terms of judicial agency. Court jurisprudence itself falls silent here. Only through the minds’ eye of the readers are such cases viewed as tactical movements under an overarching judicial strategy. This results from the academic lawyer’s rationalist proclivity for systematic thinking, not the court’s strategic interpretation.

So deployed, judicial strategy amounts to an ex post rationalization of judicial performance. Besides, judicial strategy loses explanatory power when the strategic goal is not made clear. Is it judicial institution-building as Tew suggests (p. 219)? If so, it is unclear how a court can build its institutional stature and strength vis-à-vis the political branch at the heights of constitutional politics when it still only barks before biting. How about taming the political branch? But can a dog that never bites tame the political beast? Or, is it simply institutional self-preservation? The problem is that institutional self-preservation is far from institution-building at the heart of constitutional statecraft. With such issues unaddressed, judicial strategy becomes a slippery concept. Then, how can we pin down the court’s strategic goal in transition? How can we make sense of judicial strategy in constitutional statecraft?

4. From ‘In’ to ‘And’: Putting Constitutional Statecraft in Its Place

Tew’s tale of Malaysia’s judicial triumph culminates in the Federal Court’s 2018 Indira Gandhi judgement. It was preceded by the 2017 Semenyih Jaya judgment that adopted the basic structure doctrine. In Tew’s narrative, the latter sets the stage for the former, a textbook example of strategic judicial institution-building in constitutional statecraft (pp. 119-22, 133-40). On closer inspection, however, this constitutional duet betrays traces of disharmony.

As Tew notes, the Semenyih Jaya judgment resulted from a land dispute in 1987 (p. 99).  The High Court did not decide on this case until 2011. After the Court of Appeal rendered its judgment in 2013, it took another four years for the Federal Court to make its Marbury-like decision (pp. 133-37) (see here). This fast-forwarding narrative prompts some questions.  What happened to the triggering land dispute between 1987 and 2011? What happened in the 2013-17 interval when the case languished in the court dockets? As regards Indira Gandhi, the triggering case occurred in 2009. It took the claimant nearly nine years to receive the Federal Court’s landmark decision in 2018 (pp. 171-72). We are told that the latter is essentially a sequel to the former in the Federal Court’s endorsement of the basic structure doctrine (pp. 137-39). This is a cleansed narrative, leaving readers wondering: What was the state of constitutional politics between Semenyih Jaya and Indira Gandhi? Was there any sign of the dominant political forces loosening their grip on power in the intervening period? How did political forces react to the apex court’s 2017 self-empowering judgment?  With these questions unanswered, we end up reading a curtailed story of constitutional statecraft. 

Delinked from judicial agency, doctrines do not tell us much about the role of courts in a constitutional order. To make sense of the meaning of doctrinal stances, we need to read individual judgments systematically, in relation to their triggering controversies and their impact on political actors’ behaviour and in light of constitutional politics broadly.  Constitutional statecraft shapes up in the interaction between the courts and political actors, not in the courts. With her constitutional tale of two states, Tew sets the stage for further sequels of constitutional statecraft beyond the courts in Asia.

Suggested Citation: Ming-Sung Kuo, Taking Constitutional Statecraft Beyond the Courts – a Book Review of Yvonne Tew’s “Constitutional Statecraft in Asian Courts”, Int’l J. Const. L. Blog, May 7, 2021, at: http://www.iconnectblog.com/2021/05/taking-constitutional-statecraft-beyond-the-courts—a-book-review-of-yvonne-tews-constitutional-statecraft-in-asian-courts/