PROPORTIONALITY AND RIGHTS PROTECTION IN ASIA:

Citation(2017) 29 SAcLJ 774
Date01 December 2017
Published date01 December 2017

Hong Kong, Malaysia, South Korea, Taiwan – Whither Singapore?

Over the past 50 years, the principle of proportionality has become a core component of global constitutionalism. Asia is proportionality's new frontier, and courts in jurisdictions as diverse as South Korea, Taiwan, Hong Kong and now Malaysia have adopted proportional analysis as their basic approach to adjudicating constitutional rights. Underlying these developments are transitions away from single-party rule. The article considers the anomalous situation in Singapore, and argues that Singapore's judges ought to reconsider their doctrinal approach to rights protection.

1 Over the past 50 years, the most powerful supreme and constitutional courts in the world have converged on a doctrinal procedure for adjudicating rights claims: proportionality analysis (“PA”). The proportionality principle evolved in Germany, first, as a matter of 18th century legal philosophy, and then as an unwritten principle of public law.1 Today, PA has been fully constitutionalised, as a centrepiece of rights protection across Europe, parts of Latin America including Colombia and Mexico, and in common law systems as diverse as Canada, South Africa, Israel and the UK. For their part, scholars have identified the proportionality principle as probably the “most

successful”2 legal transplant in history, and a core component of global constitutionalism more generally.3

2 Asia is proportionality's new frontier. Since the 1990s, a number of Asian countries not only began to develop effective systems of rights protection, their courts began to deploy PA in politically sensitive domains, including cases that challenge the regulation of political parties and elections by rulers in power.4 The process poses a challenge to the view that Asian states do not need, or have the capacity to sustain, robust judicial review and rights protection.5 In Singapore, the so-called “Asian values” claim has, at times, promoted the idea that robust rights protection is not only alien to the region's culture, but would hinder economic development.6

3 PA is a highly intrusive standard of judicial review which, once adopted, typically displaces or absorbs rival standards. In much of the world, PA has replaced deference doctrines, such as those expressed by reasonableness standards of the so-called “Wednesbury” variety. When an apex court moves from a posture of (a) institutionalised deference to legislatures and executives to (b) the enforcement of the proportionality principle, that court creates the conditions for adjudicating rights more effectively. Further, where judges deploy PA consistently and in good faith, they construct a new discursive interface between themselves and ruling officials. This paper examines the use of PA by the courts of South Korea, Taiwan, Hong Kong and Malaysia, and assesses the extent to which they have successfully renegotiated their relationship with officials of ruling parties. In particular, the case studies show that courts can help to consolidate the conditions under which constitutional democracy and rights protection can take root and flourish in tandem.

4 The paper proceeds as follows. Part I surveys the basic theories, concepts and doctrinal materials that inform the cases studies. One of

the most important findings of comparative constitutional law scholarship is that, in the absence of a competitive party system, judges will not protect rights robustly or effectively. In contrast, the most powerful rights-protecting courts in the world are embedded in competitive party systems; and, through resolving legal conflicts involving rights, they routinely participate in the making of public policy. We then introduce PA, and discuss its general importance to systems of rights protection. Part II considers the development of constitutional judicial review in South Korea, Taiwan, Hong Kong and Malaysia. Courts in these countries have turned to PA to help them build, or consolidate, pluralist democracy. They do so, in part, to enhance the centrality of the constitution as an instrument of governance which, in turn, will enhance their own effectiveness as rights protectors. In part III, we draw out some of the implications of the case studies for our understanding of Singapore, and of the persuasiveness of the “AsianValues” claim.
I. Constitutionalism, judicial review and proportionality

5 The so-called “new constitutionalism”,7 which has come to dominate modern constitutional design since the 1950s, purports to ground the legitimacy of government in two types of arrangements: (a) democratic accountability through elections; and (b) the protection of rights against unnecessary (disproportionate) government intrusion. As an empirical matter, virtually every new constitution adopted over the past three decades established a system of judicial rights protection.8 Of course, many domestic charters of rights are “sham” documents, and have little impact on rulers; and the courts of most states protect rights weakly, if at all.9 Given these facts, how is it that some systems (an increasing number) have developed effective judicial review and rights protection? And why has the adoption of PA been so important to this process? This section responds to these questions from the perspective of existing scholarship in the field of comparative constitutional law.

A. Logics of delegation

6 A first-order puzzle concerns why political elites would seek to constrain themselves by establishing rights and review. Rights lay down substantive and procedural constraints on the exercise of public authority. And, “rights review” means giving to judges the power to control the decisions of these same officials. Scholars largely agree on the basics of a solution to this puzzle; at the same time, they recognise that explaining any particular case will require close attention to facts (historical, socio-economic, politico-legal and so on) that are specific to that national system. The general account stresses the importance of a competitive party system, as a necessary background condition, and the common interest of each party to constrain its opponents when out of power.10 Put as simply as possible: when two or more major parties: (a) know that they will compete with one another in elections for power; and (b) believe that they could lose to one of their opponents, then each will have an interest in investing in constitutional arrangements that will constrain opponents after losing an election.

7 Although, virtually, all modern constitutions proclaim that sovereignty rests with the people, constitutions are typically drafted by different groups of elites in the course of complex negotiations. In such contexts, two overlapping logics broadly explain why these groups choose to delegate control powers to constitutional judges. The first, the so-called “insurance model of judicial review” directs analytical attention to the degree to which political authority is centralised or fragmented.11 In systems dominated by one person or one political party, rulers will have little incentive to share their power with courts. In contrast, where a competitive party system exists or can be foreseen by the founders, each party will see the benefits of protecting its interests when out of power, and constraining officials through judicial review is a means of doing so.

8 A second and related logic – one of “incomplete contracting” – focuses on rights as a specific form of insurance.12 Constitutions are conceived as contracts between groups of political elites (likely to organise as future political parties) who jointly negotiate the legal framework under which they will govern. In establishing a democracy,

each contracting party knows that they will compete with one another for office, through elections. At the same time, each wants to constrain opponents when the latter are in power, in part, through rights and review. The constitution, thus, contracts two common goods: (a) a set of enabling governmental institutions, tied to elections; and (b) a set of constraints, tied to rights.

9 Rights will only constrain one's opponent if there is an effective enforcement mechanism available, hence delegation to a constitutional court. Delegation also resolves deep problems of incomplete contracting. All contracts are “incomplete” to the extent that meaningful uncertainty exists as to the precise nature of the contract's terms. Modern rights provisions are famously incomplete, in that rights are typically expressed in abstract, general terms ex ante, leaving it to an interpreter to clarify their scope and content in the light of the concrete cases that will emerge ex post. One reason for this textual indeterminacy is rights disagreements among the negotiating parties. To avoid bargaining stalemates, multi-party founders of new constitutions typically rely on broadly worded rights provisions, or they simply copy the incomplete formulations found in other rights documents, domestic or international, into their own.

10 The constitutional court can neither provide insurance to the parties, nor “complete” rights provisions in an authoritative way, if rulers can easily override its decisions and precedents. By definition, a rights-based constitution is entrenched in ways that make it impossible for either the Legislature or Executive, on its own, to revise the constitution to reverse the court. Delegation, nonetheless, entails costs, in so far as elites, conceived as future rulers, give lawmaking authority to judges. Under conditions of relatively effective judicial review, each party can expect to lose some important cases, which means that all will be required to accept some rights interpretations that they would not have found acceptable at the contracting moment.

11 The more judicial review increases in effectiveness over time, the more central apex courts will be to the development of the...

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