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Conference Report: Beyond the Usual Suspects and Usual Domains? An ICON-S (Singapore) Symposium

Maartje De Visser, Singapore Management University, and Jaclyn L. Neo, National University of Singapore

Avid readers of this blog need no reminder of the clarion call for those with an interest in constitutionalism to move beyond the ‘usual suspects’. Indeed, the very establishment of ICON-S was inspired by the desire to mainstream an interdisciplinary approach to public law writ large. The imperative to cast the net widely seems particularly salient for the Singapore Chapter of ICON-S, of which we are the founding co-chairs. Singapore is a relatively young nation that is outward-looking in many ways, including to cement its status as a regional economic hotspot; its citizenry is racially and religiously diverse, and it has elevated the use of technocracy as the preferred mode of governance to an art.

On 19 September 2019, the Singapore Chapter organized its second annual event, co-organized by the National University of Singapore Centre for Asian Legal Studies and the Singapore Management University School of Law. In line with its mission, academics, legal practitioners, representatives of State bodies, civil society, and policy-makers came together to interrogate constitutionalism along two dimensions. The first panel queried the use of interdisciplinary methodologies to understand and study the constitution. The speakers featured were Ran Hirschl (who was then Kwa Geok Choo Visiting Professor at the National University of Singapore), Kevin YL Tan (National University of Singapore), Mark Findlay (Singapore Management University), and Corinna Lim (AWARE, the main women’s rights NGO in Singapore), with Dian Shah (National University of Singapore) as moderator. The second panel addressed the question how constitutional supremacy can be assured in the age of statutes. The frequency with which statutes are adopted concomitantly increases the likelihood of bills being introduced that have a knock-on effect on constitutional rights and rules. The panel was comprised of Chang Wen Chen (National Chiao Tung University/National Taiwan University), Priscilla Chia (Peter Low & Choo LLC), Lanx Goh (previously Singapore Personal Data Protection Commission and now at Klook Travel Technology), Kenny Chng (Singapore Management University), Hui Choon Kuen (Attorney-General Chambers’ Academy), with Jack Lee (Singapore Academy of Law) as moderator. 

The interventions of the panellists and the ensuing discussion crystallized around a pair of interlocking themes. First, that legal-constitutional borders are fluid and to some extent artificial, in that the real world does not accept the academic division of labour across and within fields of law. Secondly, and concomitantly, that there is a genuine need for public law scholars and practitioners to embrace pluralism in their thinking and approach. Rather than attempt to summarize all the views canvassed – which would undoubtedly fail to capture the richness of the exchanges during the actual event – we will expound on four points that came to the fore and that we believe have resonance beyond the specific Singapore setting.

First, as constitutions serve various non-legal roles other than being the supreme law of the land, our understanding of this text, the contestations that surround it and the need for its reform must be infused with perspectives drawn from other disciplines. In this regard, an historical approach seems particularly promising, as it offers a record of the circumstances that have produced the constitutional text as it stands today. In this vein, the use of history allows us to bring into focus a country’s grand foundational narrative and the elements that together make up its unique constitutional identity. History can similarly be helpful in uncovering the meaning of specific provisions, though here we mention a couple of caveats. On the one hand, the legal history of a constitution can reveal that its drafters intended the constitution to be progressive and construed with reference to today’s social, political and cultural conditions rather than those contemporaneous to the drafting. On the other hand, academics and lawyers must be careful not to misuse history: the full suite of arguments and factors must be excavated and brought to the attention of the official interpreter of the constitutional text (often the court). Those that do not neatly fit the argument cannot simply be discarded. No cherry-picking, in other words.

Secondly, even when accepting the necessity to cross disciplinary borders, scholars may be hesitant to do so. This is not necessarily due to an outright unwillingness to engage with other social sciences due to the belief that mono-disciplinarity is simply preferable. Rather, academics may lack the confidence in their ability to correctly represent ‘foreign’ methodological approaches. This is a legitimate concern: in a situation of the proverbial blind leading the blind, can it really be said to be beneficial for the student to have received instruction related to the use of extra-legal methods and the interpretation of extra-legal sources? Team-teaching could be a promising strategy to alleviate this challenge. Given the obvious resource implications, this approach would not be feasible across the board. Yet certain (graduate-level) courses could be taught by a pair of instructors, each specializing in a different discipline, who can engage students in a true cross-disciplinary dialogue in the best Socratic fashion.

Thirdly, civil society actors may be ahead of the curve as far as interdisciplinarity is concerned. In Singapore, for instance, AWARE habitually combines legal insights with those drawn from other fields of study and is similarly adept at using classic social science methods like surveys to collect empirical data to buttress its demands for legal change. This integrated strategy has yielded fruitful results, including in Singapore’s sexual assault laws becoming de-gendered. We suggest that the type of evidence-based advocacy pursued by civil society actors is worthy of study, both in its own right and as a possible source of inspiration for academics eager to communicate their views in a manner that policy-makers will be receptive to.

Finally, there is a need to pluralize the domains of constitutional compliance and contestation. In Singapore, the Attorney-General’s Chambers offers upstream advice to ministries and statutory boards during the policy-making stage to ensure that bills introduced to Parliament are within constitutional confines. Importantly, such pre-enactment review does not only or even mainly focus on fundamental rights clauses. Rather, proposals are often scrutinized for conformity with the institutional and procedural provisions included in the constitution. By way of example, when a ministry wishes to create a tribunal to decide certain kinds of issues, there is a need to check whether this could in substance amount to the exercise of judicial power, which Article 93 of the Singapore constitution vests in the courts. While the views expressed during such early review exercises lack the authority of judicial pronouncements, the commitment to pre-enactment review points to the diffusion of constitution-thinking across the entire government apparatus. A solid study of constitutional interpretation must accordingly account for this reality and go beyond the work done by the courts or even Parliament.

We hope that the above inventory has given a flavour of the work done by the Singapore Chapter and that some of the points raised will, in turn, contribute to opening up new areas of research in comparative constitutional studies.

Suggested citation: Maartje De Visser and Jaclyn L. Neo, Conference Report: Beyond the Usual Suspects and Usual Domains? An ICON-S (Singapore) Symposium, Int’l J. Const. L. Blog, Oct. 16, 2019, at http://www.iconnectblog.com/2019/10/conference-report-beyond-the-usual-suspects-and-usual-domains-an-icon-s-singapore-symposium/

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Published on October 16, 2019
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