COMPARATIVE ORIGINALISM IN CONSTITUTIONAL INTERPRETATION IN ASIA

• Citation: (2017) 29 SAcLJ 719
• Date: 01 December 2017
• Author: Yvonne TEW BA (Hons) (Cantab), LLM (Harvard Law School), PhD (Cantab); Associate Professor of Law, Georgetown University Law Center.
• Published date: 01 December 2017

Originalist approaches to constitutional interpretation take many forms across different constitutional contexts. This article examines the diversity of approaches to using constitutional history in constitutional interpretation and explores its practice across four Asian constitutional systems. It begins by examining the different ways in which constitutional courts and actors approach constitutional history. The article then explores at greater depth the constitutional practice of originalist arguments in four Asian jurisdictions: Malaysia, Singapore, India, and Hong Kong. The article concludes with reflections on the broader comparative observations gained from considering the salience of constitutional history in these Asian contexts.

I. Introduction

1 Originalist approaches to constitutional interpretation take many forms.1 An historical inquiry can draw on the original intentions or understandings of the meaning or application of the constitutional text. Originalism has become a prominent fixture of academic, judicial, and popular discourse in the US. Debate over the role that originalist analysis should play in constitutional interpretation continues to preoccupy a vast amount of American legal and political discussion. Yet, until recently, the use of originalist arguments outside the US has received little attention.2 Conventional accounts have tended to

characterise the notion of comparative originalism as an oxymoron. In recent years, however, an emerging body of scholarship has begun to explore the prevalence of originalist arguments in comparative contexts globally.3

2 This article examines the diversity of approaches to using constitutional history in constitutional interpretation and explores its practice across four common-law Asian constitutional systems. It begins in part II by examining the different ways in which constitutional courts and actors approach originalist arguments. Part III then turns to the use of constitutional history in the practice of constitutional review in the Asian jurisdictions of Malaysia, Singapore, India, and Hong Kong. All four case studies are post-colonial states that possess common-law systems based on British legal traditions with judiciaries that engage in constitutional review. The article concludes by reflecting on the broader comparative observations gained from considering the use and practice of originalism in constitutional interpretation in Asia.

II. Using originalism

3 Originalism has become a moving target.4 In the US, originalist theory has evolved substantially from its beginnings as a primarily conservative movement with the aim of providing purportedly neutral criteria to restrain judges in constitutional adjudication. Contemporary work on originalism has offered various accounts that view originalism in terms of a positivist framework,5 or as compatible with judicial activism6 and even living constitutionalism.7

4 The discussion below considers how courts and constitutional actors use originalist arguments in diverse ways and for varied reasons.

It explores five variations in how a constitutional interpreter might approach originalist arguments in constitutional adjudication.

A. Intention or meaning?

5 Should inquiry into historical understandings focus on the original intentions of the drafters or the meaning of the constitutional text? Some originalist accounts (such as the first wave of the US originalism movement) focus on the intentions of the framers or drafters of the provision.8 Alternatively, original-meaning theories of historical inquiry focus on the meaning a hypothetical reasonable person would have given the text when it was adopted. The distinctions between intentionalist and original-meaning-based approaches are often obscured in practice,9 although they have substantially different theoretical foundations and can produce different results.

6 Consider, for example, the South African Constitutional Court's decision in the landmark case of S v Makwanyane.10 In that case, the Constitutional Court acknowledged that the interim South African Constitution's negotiators had deliberately declined to prohibit capital punishment. Nevertheless, the court held that the death penalty was incompatible with the right to life guaranteed in s 9 of the South African Constitution.11 The South African court appears to adopt a version of the view that a court should be bound by the applications to which the ratifying generation affirmatively committed the nation, but not by what that generation believed the commitment excluded.12

7 Contrast the Singapore Court of Appeal's reasoning in Yong Vui Kong v Public Prosecutor13 (“Yong Vui Kong”), a case that also involved the constitutionality of the death penalty. Singapore's highest appellate court found that the lack of an explicit textual prohibition against inhuman treatment indicated that the mandatory death penalty did not infringe upon the right to life guaranteed by Singapore Constitution.14 The Court of Appeal's originalist methodology in Yong Vui Kong is heavily focused on the textual meaning: it relies heavily on the lack of any explicit provision prohibiting inhuman punishment in the

Constitution as evidence of the original understanding of the provision. The Singapore court's originalist approach appears in service of legislative deference; it employs constitutional history as part of its prevailing legalistic interpretative approach.

8 Across the border in Malaysia, however, originalist discourse is characterised by a focus on constitutional history and the intent of the framers.15 References to original intent dominate the Malaysian courts' originalist jurisprudence.16 Originalist arguments in the Malaysian context have not centred on the textual public meaning of the Malaysian Constitution at the time of drafting.17 Rather, originalist inquiry in constitutional interpretation is heavily influenced by the constitutional history surrounding its drafting. Extrinsic historical evidence is relied on by the courts not merely to provide an understanding of the context, but to determine the actual intentions of individual framers.18 The Art 3(1) constitutional clause, which declares Islam as the religion of the Federation, has become the focal point of polarising debates over the religious identity of the Malaysian state. Secularists and Islamists battle over whether constitutional history supports their interpretation of the Art 3(1).19 The overriding theme that emerges from the use of originalism in practice in Malaysia is that it is focused on the historical understandings and intentions of those involved in the drafting of the Malaysian Constitution.

B. Expectations or purposes?

9 Constitutional history may be invoked to identify the specific expectations that members of an earlier generation had as to how the

constitution would apply. But a court may also invoke history to identify the broader purposes or values that motivated the constitution or its particular provisions. Viewed in this way, contemporaneous history helps to reveal the animating aims behind a constitutional document or the mischief it was meant to avoid. By contrast, an approach based on original expected applications ties current interpretation to the specific ways through which the founding generation thought to vindicate the constitution's ends.20

10 Consider the purposive use of constitutional history in India. The Indian Constitution's21 starting point is usually invoked to identify the purpose behind the broader plan established at the nation's founding.22 References to the framers of the Indian Constitution are used to support arguments about these constitutional purposes.23 For example, in the Indian Supreme Court's significant decision on judicial appointments in 2015, the court repeatedly referred to the Constituent Assembly debates and other sources surrounding the drafting of the Indian Constitution in reaching its decision regarding judicial primacy in the appointment process.24

11 Examples of purposive interpretation can be seen elsewhere, including in contexts not traditionally associated with historical argument. In a Japanese Supreme Court case holding that a Shinto ground-breaking ceremony did not offend the separation of State and religion provided in Art 20 of Japan's Constitution,25 dissenting judges made much of the history of state-sponsored religion following the 1868 Meiji Restoration.26

12 These examples invoke history to identify a problem the Constitution or its particular provisions were meant to remedy. Identifying those broader aims does not bind a constitutional interpreter to resolve current problems just as the framers and drafters would have contemplated. Rather, it suggests an interpretive approach that looks to the overarching purposes of the constitutional project.

C. Pluralist or dispositive?

13 Constitutional interpretation tends to be pluralistic. Courts typically supplement historical inquiry with other interpretive methods, whether grounded in text, doctrine, prudential reasoning, or prior precedent. On this pluralist view, constitutional history is one resource among many. Courts favouring a more determinative role for originalist understandings, on the other hand, regard the conclusions reached through historical analysis as dispositive or deserving of greater weight in interpretation.

14 For example, the Singapore Court of Appeal's decision in Yong Vui Kong reflects a more dispositive approach toward originalist understandings, compared to the pluralistic constitutional interpretation approach generally exhibited by the Indian Supreme Court. Consider also the US Supreme Court's decision in District of Columbia v Heller, which held that a Washington, DC prohibition on handgun possession infringed the Second Amendment of the US Constitution.27 The court front-loaded its opinion with an extensive inquiry into the historical meaning of the Amendment's...