Constitutional Remedies in Asia

Po Jen Yap

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429788123
• Edition: 1
• Topic: Social Sciences
• Subtopic: Asian American Studies
• Index: Social Sciences

Many jurisdictions in Asia have vested their courts with the power of constitutional review. Traditionally, these courts would invalidate an impugned law to the extent of its inconsistency with the constitution. In common law systems, such an invalidation operates immediately and retrospectively; and courts in both common law and civil law systems would leave it to the legislature to introduce corrective legislation. In practice, however, both common law and civil law courts in Asia have devised novel constitutional remedies, often in the absence of explicit constitutional or statutory authorisation.

Examining cases from Hong Kong, Bangladesh, Indonesia, India, and the Philippines, this collection of essays examines four novel constitutional remedies which have been judicially adopted - Prospective Invalidation, Suspension Order, Remedial Interpretation, and Judicial Directive - that blurs the distinction between adjudication and legislation.

1 Constitutional remedies in Asia

An overview

Po Jen Yap*

Where courts are authorised to exercise the powers of constitutional review of legislation, the customary practice for Asian judiciaries is to strike down the law, when it is deemed unconstitutional, to the extent of its inconsistency.¹ In common law systems, the invalidation operates immediately and retrospectively.² Furthermore, judicial respect for the separation of powers principle – a general rule observed in both civil and common law Asia – would require courts to rely on the legislature to implement remedial legislation post-invalidation.

However, with the rise of the modern state, and the realities of governance or lack thereof,³ both common law and civil law courts in Asia have devised innovative constitutional remedies that complement this strike-down power, usually in the absence of explicit constitutional or statutory authorisation. In this edited volume, we shall examine four such constitutional remedies: (1) Prospective Invalidation; (2) Suspension Order; (3) Remedial Interpretation; and (4) Judicial Directive. In enforcing these four remedies, the courts have either deliberately postponed or expedited a remedy that generally follows from the judicial declaration of unconstitutionality, thereby blurring the traditional dichotomy between adjudication and legislation.

Prospective invalidation

Prospective Invalidation refers to the remedy whereby courts do not retrospectively invalidate the legislation under review, but instead apply their judgment prospectively to future cases that arise under the same law.

Within common law Asia, as a general rule, constitutional decisions apply retrospectively. The position is more varied in civil law systems.⁴ In Indonesia, prospective invalidation of an impugned legislation is the norm rather than an exception. In its early days, the Constitutional Court of Indonesia (ICC) justified this practice on the basis of Article 58 of the Constitutional Court Act, which provides that ‘[a]ny law, which is under review of the Constitutional Court, shall remain in full force and effect until a decision is issued declaring that this law contravenes the 1945 Constitution of the Republic of Indonesia’.⁵ But as rightly observed by Simon Butt, Article 58 ‘says nothing about the “reach” of the Court’s decision after the Court invalidates a statute. It [merely] covers the status of the statute before the Court invalidates it’.⁶ However, as highlighted in Stephanus Hendrianto’s chapter on Prospective Invalidation in Indonesia, the Court has now justified this practice based on Article 47 of Indonesia’s Constitutional Court Act, which provides: ‘A decision of the Constitutional Court shall take full legal force and effect upon its pronouncement in a plenary hearing open to the public’.⁷ However, it is not self-evident that the text of Article 47 precludes the ICC from giving its decision retrospective effect after its decision is announced.

As observed by Stephanus Hendrianto in his chapter on Indonesia, the ICC appears to have resorted to this remedy purely to reduce governmental or public backlash against the Court’s decisions. When the ICC invalidated a legislative provision that barred former Communist Party members from becoming lawmakers, Chief Justice Jimly Asshiddiqie announced in a press conference that the Court’s decision would only apply in the next election cycle five years later. The most notorious example of Prospective Invalidation concerned the criminal convictions of those complicit in the bombing of two nightclubs in Bali on 12 October 2002 that took the lives of over two hundred people. It is noteworthy that the accused were convicted under anti-terrorism legislation passed in April 2003 that was retrospectively applied to their crime. The ICC in July 2004 held that this law was unconstitutional insofar as it had sought to impose criminal sanctions retrospectively on events that pre-dated the passage of the law.⁸ Once again, after the decision was issued, Chief Justice Asshiddiqie convened a press conference and announced that the Court’s decision would only operate prospectively to future prosecutions under this law and would not overturn the prior convictions of the Balinese bombers.⁹

In M Jashim Ali Chowdhury’s chapter on Bangladesh, we witness an interesting twist to the judicial use of Prospective Invalidation. This remedy was applied when the Supreme Court of Bangladesh invalidated constitutional amendments that violated certain basic elements of the Bangladesh Constitution. The eighth Amendment, which split the High Court Division into seven separate permanent benches; the fifth and seventh Amendments, which ousted the Court’s jurisdiction to review laws passed when the country was governed during the two periods of martial law (1975–1979 and 1982–1986); and the 13th Amendment that allowed for an unelected caretaker government to run the country – were all invalidated by the Appellate Division only after martial law or emergency rule had formally ceased. But as pointed out by Chowdhury, the Supreme Court of Bangladesh has been highly inconsistent about the prospective effect of their decisions. In the eighth Amendment case, the Court held that past Amendments enacted prior to the judicial invalidation and governmental decisions made under those Amendments remained valid.¹⁰ In the fifth and seventh Amendment cases, the Court held that past governmental decisions taken under the impugned Amendments could be challenged on a case-by-case basis.¹¹ Finally, in the 13th Amendment case, the invalidation of the impugned constitutional amendment would only take effect two years after the judicial decision was handed down.¹²

Suspension order

A Suspension Order is a delayed declaration of invalidity. The impugned law is deemed to be unconstitutional, but the judiciary delays this declaration, usually with a fixed deadline, so that the legislature is given time to pass corrective legislation.

Kent Roach has observed that the suspension order in Canada gives the government ‘an opportunity to engage in policy-making, by deciding which of a range of multiple constitutional options would be implemented in light of the court’s ruling’.¹³ This judicial willingness to sanction delay and allow an unconstitutional state of affairs to persist serves twofold advantages. First, the suspension avoids any legal uncertainty or chaos that may arise as a result of an immediate vacuum or gap in the law, as the unconstitutional statute will remain in effect until the suspension order expires or remedial legislation is put in place. Second, a suspended declaration gives the legislature, rather than the courts, the opportunity to make the initial selection on how best to comply with the constitutional mandates among the competing alternatives available, such that due deference is paid to the primacy of the legislature’s law-making role.¹⁴

In Indonesia, as discussed in Fritz Edward Siregar’s chapter, when the ICC declared that the Corruption Criminal Court was not constituted legally,¹⁵ the Court suspended its decision for three years so that the legislature was given time and space to enact a new statutory framework, while allowing the authorities to continue to combat corruption under the old regime in the interim. A suspension order was also issued when the ICC declared the State Revenues and Expenditures Budget Law of 2005 unconstitutional for failing to allocate at least 20 per cent of the State budget to education, as required under Article 31(4) of the Indonesian Constitution. This suspension was justified on the basis that the invalidation of the national Budget Law would cause ‘governmental disaster in the state finance administration, which can cause legal uncertainty’.¹⁶ The ICC had also issued suspended orders in subsequent constitutional challenges to the annual education budget, but the government consistently failed to comply. Finally, in 2008, the ICC’s patience ran out and it invalidated the entire Budget Law for that year.¹⁷ It is noteworthy that suspension orders were only used by the ICC under the leadership of its first Chief Justice, Jimly Asshiddiqie. As the Indonesian government regularly dragged its feet on compliance with suspension orders, it would appear that the Court has realised that a suspension order is too toothless a remedy and has increasingly turned to immediate Remedial Interpretation – known as Conditional Constitutionality/Unconstitutionality rulings – of the impugned law instead.

The judicial use of suspension orders is not without its critics. Specifically, Robert Leckey has sounded a cautionary note on the Courts’ increased use of delayed remedies. In his view, such remedies harm individual rights-bearers, as they may be victorious in court but deprived of a remedy until legislation is passed to address their situations, if at all.¹⁸ These harms are especially accentuated when the judiciary temporarily preserves invalid penal prohibitions, as it ‘magnifi[es] differences amongst members of the litigant’s class’¹⁹ purely on the basis of whether the accused is convicted before or after the lapse of the suspended law’s expiration period. Furthermore, Leckey argues that this broader systemic discretion creates institutional harms: it increases uncertainty over the outcome of rights-litigation,²⁰ raises doubts over whether the legislature would address the rights-violation during the reprieve period,²¹ and prolongs the destitution of successful litigants in a demeaning fashion.²²

These are powerful arguments against the use of suspension orders. Fortunately, in Asia, the courts have added ‘bite’ to their delayed declarations of invalidity such that the government is incentivised to comply, or judicial safeguards are put in place to mitigate any legislative or executive delinquency.

In Hong Kong, as discussed in Swati Jhaveri’s chapter, the judicial issue of the suspension order does not absolve the government from any legal liability during the suspension period.²³ Furthermore, the Hong Kong Court of Final Appeal (HKCFA) has also coupled a delayed declaration of invalidity with a remedial reading-in proviso that takes effect automatically, in the event of any legislative default, upon the expiry of the suspension period imposed by the court.

In W v Registrar of Marriages,²⁴ the HKCFA in 2013 ruled that the Registrar of Marriages, in applying the existing matrimonial legislatio...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Author biographies
• 1 Constitutional remedies in Asia: an overview
• Part I Prospective invalidation
• Part II Suspension order
• Part III Remedial interpretation
• Part IV Judicial directive
• Index