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The Interpretation and Construction of Taciturn Bills of Rights

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The Interpretation and Construction of Taciturn Bills of Rights AN ARTICULATE SILENCE: THE INTERPRETATION AND CONSTRUCTION OF TACITURN BILLS OF RIGHTS by JACK TSEN-TA LEE A thesis submitted to the University of Birmingham for the degree of DOCTOR OF PHILOSOPHY Birmingham Law School College of Arts and Law University of Birmingham June 2011 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. © 2011 Jack Tsen-Ta Lee Jack Tsen-Ta Lee School of Law, Singapore Management University 60 Stamford Road, #04-11, Singapore 178900 Tel +65.6828.1949 y Fax +65.6828.0805 E-mail [email protected] Website http://www.law.smu.edu.sg This dissertation is gratefully dedicated to my PhD supervisor Dr Elizabeth A Wicks, without whose advice and guidance this work would not have come to fruition; and to my parents, Ann and Song Chong Lee, who always believed in me. X ACKNOWLEDGEMENTS I am most grateful to the Birmingham Law School and the University of Birmingham for supporting the writing of this dissertation by providing a partial scholarship and an appointment as a visiting lecturer during the 2005–2006 academic year, and a full scholarship in the form of a postgraduate teaching assistantship between September 2006 and August 2008. The faculty and staff of the Birmingham Law School, my PhD classmates, and the people I came to know at Jarratt Hall and in Selly Oak, particularly the congregants of St Stephen’s and St Wulstan’s, Selly Park, befriended and supported me, and made my three-year sojourn in Birmingham thoroughly delightful and enriching. I thank you all. ABSTRACT Taciturn bills of rights and constitutions – texts that express concepts at high levels of abstraction or which do not provide much guidance in other ways – pose challenges for courts responsible for determining their meaning and applying them. This dissertation aims to identify the approach that might be taken by courts in Commonwealth jurisdictions with written constitutions. It argues that the starting point is the legislative intention underlying the text, and that the preferred conception of such an intention is moderate originalism. This requires ascertainment of the meaning the legislators imbued the text with through their choice of words at the time the constitution was enacted, but which recognizes that parts of the text may be interpreted dynamically where language connoting abstract moral principles has been employed. The dissertation distinguishes constitutional interpretation from constitu- tional construction. Interpretation involves identifying the semantic content of a constitutional text, and to do so courts should consider the linguistic, purposive and applicative meanings of terms and provisions. Where interpreting the text does not yield any useful or complete legal rule, the court must engage in construction by applying legal principles and techniques such as the presumption in favour of generosity, the use of constitutional implications, and a proportionality analysis. Thus, any constitutional ‘silence’ is in fact not so silent after all, as it may be given voice by the court. TABLE OF CONTENTS TABLE OF CASES ............................................................................................................... v TABLE OF LEGISLATION .................................................................................................xiii TABLE OF ABBREVIATIONS ............................................................................................ xvii I N T R O D U C T I O N ................................................................................................... 1 CHAPTER ONE Interpreting Bills of Rights: The Value of a Comparative Approach ............................ 7 I. CONCERN BASED ON THE TEXT: THE ‘FOUR WALLS’ DOCTRINE.......................................9 A. GENEALOGICAL INTERPRETATION ......................................................................... 15 B. DIALOGICAL INTERPRETATION .............................................................................. 18 II. CONCERN BASED ON NATIONAL IDENTITY ...................................................................23 III. CONCERN FOR DIFFERING CONDITIONS .....................................................................34 IV. PRACTICAL CONCERNS ...............................................................................................39 THE VALUE OF A COMPARATIVE APPROACH......................................................................43 CHAPTER TWO Collaboration through Confrontation: The Roles of the Branches of Government in Interpreting Bills of Rights ...........................................................................................51 I. FUNDAMENTAL CONCEPTS............................................................................................54 A. THE DOCTRINE OF THE SEPARATION OF POWERS...................................................54 B. THE RULE OF LAW, CONSTITUTIONALISM AND THE STATUS OF BILLS OF RIGHTS AS LAW ........................................................................................................................ 60 1. The Rule of Law .......................................................................................... 60 2. Constitutionalism and the Status of Bills of Rights as Law.......................62 3. The Independent Duty of the Branches of Government to Interpret a Bill of Rights...........................................................................................................66 II. A SINGLE AUTHORITATIVE INTERPRETER? ..................................................................72 A. INTERPRETIVE AND JUDGMENT SUPREMACY DISTINGUISHED ................................72 1. The Judiciary as Ultimate Interpreter: An Examination of the Judicial Role .................................................................................................................. 75 2. Departmentalism and the Rule of Law ......................................................79 B. THE COUNTER-MAJORITARIAN DIFFICULTY...........................................................85 1. The Elusive ‘Majority Will’, and Executive and Legislative Action ...........85 2. An Unelected Judiciary – Problem or Protector?......................................89 III. THE RELATIONSHIP BETWEEN THE BRANCHES OF GOVERNMENT................................93 CONCLUSION .................................................................................................................103 CHAPTER THREE The Dangerous Doctrine of Deference ...................................................................... 105 I. DOCTRINES OF LIMITATION IN ADMINISTRATIVE LAW: NON-JUSTICIABILITY AND DEFERENCE ...........................................................................................................108 A. NON-JUSTICIABILITY ..........................................................................................109 ii • Table of Contents B. DEFERENCE ........................................................................................................116 II. DEFERENCE AND BILLS OF RIGHTS.............................................................................121 A. THE APPLICATION OF DOCTRINES OF DEFERENCE TO BILLS OF RIGHTS ................121 1. Deference in the Context of Proportionality Analysis.............................. 122 2. Implicit Deference? The Case of Singapore ............................................. 132 B. PRACTICAL DIFFICULTIES WITH HOW DOCTRINES OF DEFERENCE ARE APPLIED .. 136 III. JUSTIFICATIONS FOR DEFERENCE.............................................................................141 A. SEPARATION OF POWERS .................................................................................... 142 B. ACCOUNTABILITY AND INSTITUTIONAL COMPETENCE ...........................................145 III. REDEFINING DEFERENCE.........................................................................................153 CONCLUSION..................................................................................................................157 CHAPTER FOUR Interpretive Approaches: The Nature of the Judicial Task........................................159 I. THE TEXT AT ITS INCEPTION: LEGISLATIVE INTENTION ................................................161 A. THE MEANING OF LEGISLATIVE INTENTION .........................................................161 1. Legislative Intention and Legal Meaning: Originalism, and Expressed and Unexpressed Intent................................................................................ 166 (1) Actual and Counterfactual Intentions.............................................. 168 (2) Original Meaning ..............................................................................173 B. MODERATE ORIGINALISM....................................................................................176 II. THE TEXT THROUGH TIME: FIXED AND DYNAMIC MEANING.......................................179 CONCLUSION................................................................................................................
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