Introduction
Constitutional lawyers, including the contributors to this volume, have analysed ‘constitutional moments' from the perspective of looking at how and when such moments occur, when they are complete, how to identify the product of such moments, the legitimacy (or otherwise) of such moments, the authorship of these moments and/or the question of how to preserve the product of such moments.1 This chapter, conversely, considers the absence of grand constitutional moments in two post-colonial transitions in Asia: Hong Kong and Singapore.
In common with other chapters in this volume, it uses the example of these jurisdictions to problematise how constitutional moments are not always capable of reduction into a single instantiation (however long) or easily identifiable or measurable as being such a moment or even easily to attribute to a particular causal event. This chapter focuses in particular on the fact that in these two jurisdictions, the constitutional' nature of the foundational text of the jurisdictions is still unclear. Sections II and III look at the nature of the constitution-making process at the post-colonial founding of the two jurisdictions that contributed to this problem. It highlights how the pragmatic drivers (economic, political and social stability) animating the actors involved in the foundings deprioritised discussions relating to more normative questions about the role of the constitutional text in the governance of the jurisdiction.1 See, in particular, the chapters in this volume by Ming-Sung Kuo (ch 1), Mel A Topf (ch 3), Yair Sagy (ch 6) and Chien-Chih Lin (ch 9).
The discussion on Hong Kong in Section II highlights how Sino-British negotiations on the transition of Hong Kong from British colonial governance to being a special administrative region of the People's Republic of China prioritised pragmatic concerns of stability, largely financial and economic, over the implementation of a constitutionally led political and democratic governance of Hong Kong.[124] The provisions of the Basic Law of Hong Kong set out only the need for a gradual and incremental transition to self-governance, with much detail left under-defined.
These provisions are now being tested with political reform coming to a standstill as civic and political actors on both sides of the border are locked in trenchant disagreement on how the constitutional aspirations behind these provisions should be realised. More importantly, there is a fundamental disagreement about the necessity of realising the constitutional aspirations for the development of democracy in Hong Kong. There are opposing opinions between the local and central actors on the importance of direct elections and democracy and representative government to the task of achieving successful and legitimate governance.[125] As the discussion in Section II highlights, this disagreement stems from mixed understandings of the nature of the Basic Law.In the context of Singapore, the founding was an unexpected one rather than one subject to protracted negotiation, as was the case in Hong Kong. Singapore's founding occurred on the sudden and unilateral expulsion of Singapore from the Malaysian Federation.[126] Following this event, Singapore parked issues of constitutional design to resolve more immediate and pressing issues relating to the practical needs of its citizens. Most importantly, this included the establishment of ‘order' and ‘harmony' in a racially charged atmosphere. The latter, in other contexts, would have been an exclusively or predominantly constitutional conversation.[127] However, in the Singapore context, there were only a few constitutional provisions dealing with this major concern.[128] Instead, a lot of this work
The Role of Courts in Advancing Constitutional Moments 35 was done without explicit reference to such constitutional provisions, but through the initiation and management of policy at the executive level. This set the tone of the view taken towards the Constitution: it was not necessary or sufficient to deal with these important transitional issues at the time.
As further discussed in Section IV, the endurance and normative importance of the Constitution needs to be assessed against the broader political backdrop in Singapore. The question of the true nature of the Constitution has been a recurring one - most importantly, on questions of constitutionality of legislative and executive action, and on the issue of constitutional amendment and entrenchment.7In both jurisdictions, the founding of the post-colonial jurisdiction was accompanied by a measure of pragmatically driven constitutional agnosticism about the foundational text. The practical motivations behind the constitutional design process (consolidation of political power for economic and social stability over constitutional normativity in the Singapore context, and stability during a major transition in the Hong Kong context) meant that both jurisdictions missed out on the opportunity to have ‘grander’ conversations about the constitutional core of the systems. Section IV of this chapter therefore looks at how the courts in both jurisdictions will need to play a crucial role in keeping this constitutionalisation exercise alive. It considers key contexts where the national courts may need to or have explicated the ‘constitutional’ nature of the relevant constitutional text.
II.