Conference Report – Inaugural Conference of the Singapore Chapter of the International Society of Public Law (ICON-S Singapore) – “Constitutional Interpretation In and Outside the Courts”

—Maartje de Visser, Associate Professor of Law, Singapore Management University (SMU), with contributions from Jaclyn Neo, Associate Professor of Law, National University of Singapore (NUS)

On 12 October 2018, the Singapore chapter of the International Society of Public Law (ICON-S Singapore) organized a workshop on ‘Constitutional Interpretation In and Outside the Courts’ to launch the chapter. Hosted by the Singapore Management University School of Law, and with the support of the National University of Singapore’s Centre for Asian Legal Studies, the conference was convened by the Singapore chapter’s founding co-chairs Associate Professor Jaclyn L. Neo (National University of Singapore, Faculty of Law) and Associate Professor Maartje de Visser (Singapore Management University School of Law).

The full-day Workshop brought together participants from various academic and professional backgrounds. Speakers included scholars from law and the social sciences, well-known constitutional lawyers, and representatives of the Attorney-General’s Chambers.

The workshop started off with a Welcome Address by the founding co-chairs. They introduced the Chapter and highlighted core aspects of its governing framework, to ensure that prospective members have a solid understanding of the Chapter’s aims, values and their rights and obligations. They proceeded to explain the choice for the theme for the workshop, pointing to the need to move beyond the court-centric approach that has typically characterized local scholarly discourse on constitutional interpretation to-date. While the Singapore judiciary has an important role in establishing the meaning  of constitutional provisions, other players too contribute to shared understandings of the constitution. The co-chairs accordingly advocated the adoption of a pluralist framework that also captures how the legislature, executive and society at large debate constitutional questions.

The welcome address was followed by a lively keynote speech by the Honourable Mr. Chan Sek Keong (former Chief Justice of Singapore). Mr. Chan emphasized that while the interpretations put forward by the Singapore judiciary are legally authoritative and conclusive, they are also contingent and subject to change, as the Court of Appeal is not bound by its own precedents. Mr. Chan also called for a wider range of arguments to be infused in court proceedings, explaining that lawyers cannot always be expected to put forward the full array of possible interpretations and supporting reasoning. There is, he suggested, a role here for academics to be more proactive, for instance through the writing of amicus curiae briefs. For this to  be practicable, procedural rules would however need to be drawn up to regulate own-initiative briefs to avoid the courts being overloaded with a kaleidoscopic array of viewpoints. Mr. Chan finally identified several constitutional questions in need of elucidation, be it in academic writings or the courts, including whether the exercise of prosecutorial discretion is subject to the principles of natural justice, whether the right to counsel can already be invoked during remand and the meaning that has been given by Parliament to the phrase ‘interest of law and order’ as a legitimate ground for restricting the exercise of fundamental liberties.

Mr. Chan’s speech was followed by an animated discussion about whether the infamous section 377A of the Penal Code, which proscribes consensual sexual activities between men, could be impugned on freedom of speech grounds, as an earlier equality-based challenge was unsuccessful. While acknowledging that sexual acts can be seen as an expression of love and affection, Mr Chan opined that such an argument would be unlikely to find favour with the court as it would stretch the meaning of ‘expression’ too far.  Asked whether the Attorney-General’s opinions can be a source of constitutional interpretation, Mr. Chan – who held the post of Singapore’s AG for several years – explained that these are indeed authoritative if followed by the government, unless and until the court would disagree with the position adopted therein. In the vast majority of cases, though, AG opinions are not made public as the government does not consider that these involve any problematic issues, with the suggested corollary that the AG in reality plays a relatively minor role in developing the meaning to be given to constitutional rules.

After the keynote speech, four panels took place covering different aspects of  the phenomenon of constitutional interpretation.

The first panel, entitled Shifting Trends in Constitutional Interpretation in Singapore, focused on how constitutional interpretation differs across time and geography. Associate Professor Michael Dowdle (NUS Law) chaired this panel. Professor (Adjunct) Kevin YL Tan (NUS Law) provided initial findings of a wide-ranging quantitative study of constitutional litigation before Singapore’s Courts since the country’s independence. His data suggest a continuous uptick in the number of constitutional judgments being handed down, with more cases addressing the meaning and scope of fundamental rights – the right to life and liberty and the right to equality are by far the most popularly argued grounds – than the Constitution’s institutional provisions. with the right to life and liberty and equality as the most popularly argued grounds. In making sense of these data, Professor Tan identified human agency the composition of the court or general societal trends as factors with explanatory potential. Drawing mainly on the US Constitution, Professor Elvin Lim (SMU School of Social Sciences) posited that there are two conceptions of a constitution that yield different interpretative paradigms: as charter of negative restraints whose meaning is not intended to evolve or change on the one hand; or as articulation of a democratic community, which allows for a living law approach. Mr. Eugene Thuraisingam (Eugene Thuraisingam LLP) focused on the prospect for the Singapore courts to embrace interpretational devices that have become increasingly commonplace in constitutional adjudication elsewhere, namely proportionality and the basic structure doctrine. While the local judiciary has so far refrained from clearly endorsed either device, Mr Thuraisingam argued that recent cases could be read as arguably laying the groundwork for a full recognition in due course.

During the Question and Answer segment, the relevance of the constitution in a parliamentary system like that of Singapore was queried. Professor Lim contended that a constitution’s relevance in such regimes would be diminished in view of the court’s practice of taking its cue from Parliament in interpreting the constitution. Other questions included whether it would be useful to collect data on the number of successfully litigated constitutional cases. Professor Tan replied that it would be more fruitful to focus on whether the constitutional case was decided in a legally sound manner, rather than whether the case was successful as this could be too crude a yardstick. There was also a discussion on whether the increase in constitutional proceedings could be attributed to bottom up or top down factors. During this discussion, Mr. Chan used the death penalty to illustrate that the number of hearings on this issue was, amongst others, influenced by the role of activist movements and changes in court procedures.

The second panel was devoted to Methodologies of Constitutional Interpretation and chaired by Lecturer of Law Benjamin Ong (SMU Law). Professor Andrew Harding (NUS Law) analyzed the respective roles of the executive and the judiciary in the interpretation of (unwritten) constitutional conventions. He identified three possible relationships: i) the convention is non-justiciable, but enjoys the cognizance of the courts ii) the convention is  interpreted and recognized by the court, but not enforced; or iii) the convention can be both interpreted and enforced by the court. Drawing on various examples, Professor Harding argued in favour of both codification and justiciability of at least the most important conventions to improve their ability to guide and where necessary constrain political actors and avert possible abuses of powers. Mr. Choo Zheng Xi (Peter Low & Choo LLC) offered a firsthand account of the circumstances under which a legal practitioner would consider presenting constitutional arguments to the court and their probable effectiveness. He too broke down the inquiry into three situations. The first is the obvious instance where the constitutional argument is central to the relief sought, for instance procuring the invalidation of legislation. Second, Mr Choo has used constitutional argument as an interpretative aid or secondary argument to provide the court with the opportunity to develop its corpus of constitutional case law. Finally, he acknowledged that there had been instances where he had considered, but decided not to pursue the constitutional point, including because of the risk of a firm adverse finding that would detrimentally affect attempts to argue for a more generous reading of constitutional rights in subsequent cases.

Mr. Ramasamy Nachiappan (Attorney-General’s Chambers) rounded off the panel by speaking about tools that the Singapore courts can use to navigate the law-politics divide. He identified the classification of arguments advanced by counsel as ‘extra-legal’ as a new device in the judicial arsenal. At the same time, he observed promising tendencies on the part of the court to foster dialogue with other State bodies, for instance by explicitly endorsing the outcome of balancing exercises conducted by the police in a recent case on musical accompaniment for a religious procession. In a similar vein, Mr Nachiappan commended the recent Parliamentary Select Committee on Deliberate Online Falsehood and the 2016 Constitutional Commission for duly considering fundamental rights arguments in their work. For instance, he noted how the Constitutional Commission seriously considered the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) even though ICERD has no legal force domestically.

Highlights of the Question and Answer segment for the second panel included a discussion on the changing nature of ministerial responsibility and the risk that the codification of a convention will enshrine the preferred interpretation of the government of the day, potentially creating problems once the political climate has changed. In response to a question on how he manages the tension between being an activist and a lawyer, Mr. Choo shared two instances where his legal mind directed him not to pursue a matter in court despite his desire for a change in the law. He reiterated that simply launching a constitutional attack to draw attention to a particular socio-political issue was a risky strategy, as this could result in an unfavorable court judgment that might hinder future constitutional litigation.

The third panel was entitled In/Out: Towards an Integrated Framework for Constitutional Interpretation and chaired by Mr. Calvin Liang (Essex Court Chambers Duxton). Associate Professor Jaclyn L. Neo (NUS Law) and Associate Professor Maartje de Visser (SMU Law) delivered a joint presentation that emphasized the need for an institutionally-pluralist perspective for the study of constitutional interpretation and offered three case studies showcasing how Singapore’s Parliament and government have engaged with judicial readings of constitutional provisions as well as a dialogue between the government and an ad hoc Commission. Against that backdrop, they set out the core parameters for future research that takes interpretative pluralism as its basic premise, for both descriptive and normative accounts. Mr. Hui Choon Kuen (Dean, Attorney-General’s Chambers Academy) provided a fascinating insider’s account of the manner in which the AGC, as the government’s principal legal advisor, deals with constitutional queries. A premium is placed on consistency in the positions adopted on constitutional matters across time as well as across the five distinct divisions within AGC. To achieve this consistency, Mr Hui highlighted the leading role played by the Constitutional Law Practice Group alongside the use of a database that contains prior advisory opinions that must be consulted as part of an internal ‘precedent check’. Referencing the practice of Singapore’s Law Reform Committee, Dr. Jack Tsen-Ta Lee (Singapore Academy of Law) explained how the majority of its projects have dealt with commercial and private law rather than public law. Referencing the experience of similar commissions in other common law jurisdictions, he demonstrated how law reform may have occasion to engage with constitutional matters. Dr Lee identifies various avenues that Singapore’s Committee could pursue to increase its role in constitutional interpretation, ranging from explicitly addressing pubic law implications of its commercial and private law-related recommendations to making submissions to consultations conducted by bodies with a clear constitutional remit.

The Question and Answer segment opened with an exchange of views on the relationship between constitutional law and economic governance. Associate Professor Neo suggested that a broad reading of the right to life could trigger debates on the constitutionality of welfare policies, while Associate Professor de Visser highlighted the potential for extending the reach of Singapore’s bill of rights from vertical to horizontal relationships, following similar developments elsewhere. Mr Hui was asked how one can ensure that civil servants across the government departments and agencies have adequate ‘antenna’ to detect potential constitutional difficulties early on. He mentioned the existence of, amongst others, outreach programmes and training offered by AGC, but cautioned that the sheer size of the civil service meant that any such initiatives have practical limits. When asked about the composition of the Law Reform Committee over the years, Dr. Lee commented that it is not a full-time body and that its members have traditionally had extensive experience in commercial and private law fields. This, combined with the limited administrative and research support, could explain the Committee’s scant attention to constitutional matters.

The conference closed with a panel on Constitutional Interpretation Beyond the State. Chaired by Assistant Professor Aidan Wong (SMU School of Social Sciences), this panel showcased how civil society and economic actors may have occasion to engage with the Constitution in their work. Professor Mark Findlay (SMU Law) argued that the state-centred constitutional legality is challenged by neoliberal ideologies such as the minimization of individual rights, exacerbating regulatory failure, and exclusionist property rights. He also assessed populist patriotism in the context of increasing disaffection with the neoliberal international order and argued in favour of a recalibration of ‘the market’ and ‘the social’. Associate Professor Lynette Chua (NUS Law) spoke about the concept of ‘legal consciousness’, defining it in broad terms as the way people experience, understand and act in relation to the law. She made a strong case for the study of ordinary citizens and activists, including in countries like Singapore where there exists a thin record of constitutional challenges initiated by individuals or collective movements and a conservative discourse surrounding activism and fundamental rights claims. Associate Professor Chua went on to provide examples of how such scholarship can be conducted, which mainly requires the use of social science methods (such as surveys, in-depth interviews, or archival research) and highlighted access to materials and ensuring the safety of the research object as the key challenges for researchers intent on studying legal consciousness. The last speaker was Dr. Anamah Tan (Ann Tan & Associates) who gave a fascinating personal account of her journey as a women rights activist across the years. She corroborated Associate Professor Chua’s assessment that outright and confrontational civil disobedience was not an effective strategy to bring about legal change in Singapore. Instead, her experience confirmed that a more incremental strategy, pursued by working with State actors under the existing constitutional framework tends to yield more success. Dr Tan did however point out that this means that activists need to have stamina, given the much longer incubation period in ensuring full compliance with rights standards.

During the Question and Answer segment, a participant queried Associate Professor Chua on a recent survey of public opinion pertaining to the possible repeal of 377A of the Penal Code. Associate Professor Chua drew attention to the framing of survey questions, explaining that an expression of disapproval of homosexuality should not automatically be interpreted as support for its criminalization. She also noted that few participants referred to constitutional rights in their answers, suggesting than in-depth interviews would have been useful to uncover participants’ sentiments on the issue. On the question of the principal remaining obstacles for the advancement of women in Singapore society, Dr. Tan indicated enforcement of the rights granted under the law as particularly problematic. Speaking finally on platforms for infusing alternative views in constitutional interpretation, she identified parliamentary select committees as a suitable platform for civil society to make its voice heard.

The Workshop ended with a rooftop cocktail reception, where participants toasted to the successful launch of the ICON-S Singapore Chapter.