Judging the Constitution: The Theory and Practice of Constitutional Interpretation in Singapore

by Assistant Professor Jaclyn Neo

Debates over constitutional interpretation occupy an important space in the intellectual discourse of many constitutional systems in the world. In America, for example, whose constitution provides the genealogical roots for many constitutionalist ideas, this debate continues to capture academic and judicial attention. There, much of the contemporary discussion has focused on the divergence between originalism and "living" constitutionalism. At the heart of this is a struggle between fidelity to founding meanings, on the one hand, and creative interpretation, on the other, to suit the context and needs of an evolving society. Concomitantly, this contestation influences how one views the authoritative place of text, context, structure, norms, and theories in constitutional interpretation, and thereby how these sources of interpretive authority in individual cases.

Such discourse on constitutional interpretation has for a long time been hampered by the paucity of constitutional cases that have come before the Singapore courts. This slow growth of constitutional law is attributable to an incipient democratic and constitutional culture. This has started to change. The last five years has seen not only a dramatic expansion in political space for debate and opposition, there has also been an exponential increase in the number of constitutional law cases that have come before the Singapore courts. These cases signal a shift in the legal and political culture of Singapore not just among the citizens but also in judicial attitude as judges display an increasing willingness to engage with constitutional ideas and norms in their judgments, as well as to take creative positions in adjudicating between citizens and the state.

This by no means means that Singapore's constitutional jurisprudence is at a stage of mature development. Indeed, it is notable that except for one High Court case (Taw Cheng Kong v PP [1998] 1 S.L.R.(R.) 78), which was later overturned by the Court of Appeal, the Singapore courts have never struck down a law as being unconstitutional. This has not changed despite the recent vitalization of constitutional adjudication. There is however a discernible shift from strong judicial deference to Parliament and the executive, towards an increasing openness to creating a real conversation on the proper scope and limits of their constitutional powers. Thus, in Review Publishing Co Ltd and Another v Lee Hsien Loong & Anor [2009] SGCA 46, the Court of Appeal refrained from deciding whether to adopt the Reynolds test of responsible journalism but signaled to Parliament that there should be scope for reconsideration in future cases. There have also been other cases where the courts have taken a more assertive approach in interpreting the constitution in favor of limiting executive powers. Thus, for instance, in the case of Vellama d/o Marie Muthu v Attorney-General [2013] 4 SLR 1, the Court of Appeal held that the Prime Minister's constitutional right to call for a by-election when a seat falls vacant is not unlimited. There, the Court relied on the text of the Constitution as well as the unwritten norm of the rule of law.

All these cases bear closer reflection. This is what this edited volume aims to do. It will provide the first comprehensive and in-depth collection of original essays by constitutional scholars on evolving judicial approaches to interpreting the constitution in Singapore. The essays will provide theoretical accounts of constitutional developments that have taken place in the judicial setting. The aim is to go beyond doctrinal and empirical accounts of these developments, and to provide a meta-account that could help readers understand the social, political, and normative foundations and implications of these developments. The essays are also meant to trigger future debate and reflections on the constitutional interpretation in Singapore. It will be a significant contribution to existing scholarship as it will fill the current gap in focused theoretical accounts of Singapore's constitutional interpretation. It will also link these developments in Singapore to broader global trends in constitutional and administrative law, thus situating the Singapore judiciary in a transnational judicial dialogue.

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