‘It is a Little Known Legal Fact’: Originalism, Customary Human Rights Law and Constitutional Interpretation
13 Pages Posted: 4 Apr 2011
Date Written: December 2010
Abstract
The judicial approach towards constitutional interpretation, in attributing meaning to words in the constitutional text, illumines judicial self-understanding of institutional competence, how the separation of powers animates or constrains judicial review, and where the fount of judicial legitimacy lies. Since appeals to the Privy Council ceased in 1994, Singapore public law has been judicially developed along autochthonous lines, consonant with the “fundamental values of Singapore society” which are “communitarian” in orientation, serving the “common good”.
Despite past practice requiring that the Constitution be “primarily” interpreted “within its own four walls, and not in the light of analogies” from foreign jurisdictions, Singapore courts have not evinced a nationalist isolationism but have regularly evaluated comparative constitutional cases, which are merely persuasive in value, as models or anti-models. The courts have distinctively rejected English decisions which have developed along a rights-expansive trajectory under the influence of the European Convention of Human Rights, in a manner endemic to liberal constitutionalism, where powers are construed narrowly and rights, broadly. In an age of globalization and transnational judicial conversations, Singapore courts increasingly have to evaluate international law-based arguments in adjudicating rights; in this, there has been a sea change from a culture of resistance, even hostility, as seen in the peremptory dismissal of such arguments, to a skilled and thorough engagement with customary human rights law, of which the recent Court of Appeal decision of Yong Vui Kong v. Public Prosecutor is exemplary.
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