—Richard Albert, The University of Texas at Austin
The concept of constitutional “dialogue” has become prevalent in public law scholarship. The term is commonly used to describe one particular form of interaction between courts and legislatures in connection with the interpretation of constitutional rights–an interaction characterized by a judicial-legislative exchange on the proper outcome rather than by immediate judicial finality on the meaning of the constitution.
Scholars have often studied the concept of constitutional dialogue as it occurs (or not) in Commonwealth jurisdictions, namely Australia, Canada, New Zealand and the UK. Yet there is little scholarship on dialogue in Asia. In his book on Constitutional Dialogue in Common Law Asia (OUP 2015), Po Jen Yap seeks to change that.
Yap investigates the constitutional systems of three former British colonies: Malaysia, Singapore, and Hong Kong. All three continue to observe common law norms. Yet none of these three constitutions entrenches a special structural device that enables the legislature to reverse or avoid a constitutional judgment that strikes them as incorrect or undesirable. The only recourse under any of these three constitutions is constitutional amendment.
Yet Yap shows that dialogic constitutional review is nonetheless possible in all three jurisdictions in light of their courts’ capacity to draw from judicial techniques and canons that foster debate with other political branches on constitutional values. The book focuses specifically on dialogic constitutional review of freedom of expression, freedom of religion, the right to equality, and criminal due process rights. In the ends, Yap concludes that dialogic review is superior to legislative and judicial supremacy:
In seeking the harmony between the settled expectations of the past and the evolving needs of a changing society, the judiciary must convene an enduring and continuous colloquy on rights with the political branches of government, and the polity at large. … This dialogue between the coordinate branches of government should be viewed as a constitutional blessing, and not a bane, for it conjoins the best in both statecraft and adjudication. (227)
This book will interest scholars of constitutional review and of constitutional rights more generally. It is also a much needed window into constitutional review in Asia. Yap does a great service to the field by writing what will serve for many as an introduction to three new jurisdictions, and as a challenge to the view that dialogue occurs only when authorized by special constitutional devices.
Suggested Citation: Richard Albert, Book Review, “Constitutional Dialogue in Common Law Asia” by Po Jen Yap, Feb. 9, 2018, at: http://www.iconnectblog.com/2018/02/virtual-bookshelf-a-review-of-constitutional-dialogue-in-common-law-asia-by-po-jen-yap