Scholarship
Abstracts and links for each piece can be found below
Book
Constitutional Statecraft in Asian Courts (Oxford University Press, 2020)
Forthcoming Works
Strategic Judicial Empowerment 71(3) American Journal of Comparative Law (2023, forthcoming)
Text, History, and Precedent in Research Handbook on Constitutional Interpretation (Carlos Bernal, Sujit Choudhry, & Kate O’Regan eds.) (Edward Elgar Publishing, forthcoming 2024) (co-authored with Jamal Greene)
Religious Freedom in Malaysia (Southeast Asia) in The Oxford Handbook on Comparative Human Rights Law (Neha Jain & Mila Versteeg, eds.) (Oxford University Press, expected 2024)
Monarchy and Democracy in Modern Malaysia in The Comparative Constitutional Design of Election and Parties (Tom Ginsburg, Tarun Khaitan, and Aziz Huq, eds.) (Cambridge University Press, expected 2024)
Reading Ely in Tokyo, in Global Constitutionalism, Special Issue in “The New Comparative Political Process Theory” (Rosalind Dixon & Bryan Tiojanco, eds.) (Cambridge University Press, expected 2024)
Judicial Rhetoric and Constitutional Comparativism Toward Empowered Courts: Two Asian Case Studies, in Inter-Asian Law (Matthew Erie & Ching-Fu Lin, eds.) (in progress)
Malaysia’s Judicial Empowerment Moment, in Comparative Constitutional History: Landmark Judgments (Francesco Biagi, Justin O. Frosini, & Jason Mazzone, eds.) (Brill, expected 2025)
Judicial Heroine(s) on Malaysia’s Apex Court, in Judicial Heroines? Female Chief Justices and Court Presidents in Comparative Perspective (Rosalind Dixon & Erin Delaney, eds.) (expected 2025)
Articles
Stealth Theocracy, 58(1) Virginia Journal of International Law 31 (2018)
Comparative Originalism in Constitutional Interpretation in Asia, 29 Singapore Academy Law Journal 719 (2017) (special issue)
On the Uneven Road to Constitutional Redemption: The Malaysian Judiciary and Constitutional Politics, 25 Washington International Law Journal 674 (2016) (symposium contribution)
Originalism at Home and Abroad, 52 Columbia Journal of Transnational Law 780 (2014)
Book Chapters
Malaysia in The Oxford Handbook of Constitutional Law in Asia (David Law, Alex Schwartz & Holning Lau eds.) (Oxford University Press, 2024)
The Law and Politics of Unconstitutional Constitutional Amendments in Malaysia, in The Politics of Unconstitutional Constitutional Amendments in Asia (Rehan Abeyratne & Bui Ngoc Son, eds.) (Routledge Publishing, 2022) (with H.P. Lee)
Comparative Approaches to Constitutional History, in Comparative Judicial Review (Rosalind Dixon & Erin Delaney eds.) (Edward Elgar Publishing, 2018) (with Jamal Greene)
Malaysia’s Invisible Constitution, in The Invisible Constitution in Comparative Perspective (Rosalind Dixon & Adrienne Stone eds.) (Cambridge University Press, 2018)
Book Reviews
Book Review, International Journal of Constitutional Law Blog (January 17, 2019) (reviewing Stefanus Hendrianto, Law and Politics of Constitutional Courts: Indonesia and the Search for Judicial Heroes (2018))
Book Review, 64 American Journal of Comparative Law 1024 (2016) (reviewing Po Jen Yap, Constitutional Dialogue in Common Law Asia (2015))
Book Review, 70(2) Cambridge Law Journal 481 (2011) (reviewing Tom Bingham, The Rule of Law (2010))
Book Review, 69(2) Cambridge Law Journal 413 (2010) (reviewing Vernon Bogdanor, The New British Constitution (2009))
Shorter Works
Originalism: A Uniquely American Preoccupation?, 31 Diritto Pubblico Comparato Ed Europeo (DCPE Online) 647 (2017)
And They Call It Puppy Love: Young Love, Forced Marriage and Immigration Rules, 71(1) Cambridge Law Journal 18 (2012)
No Longer a Privileged Few: Expense Claims, Prosecution and Parliamentary Privilege, 70(2) Cambridge Law Journal 282 (2011)
The Malaysian Legal System: A Tale of Two Courts, 19(1) Commonwealth Judicial Journal 3 (2011)
Book
Constitutional Statecraft in Asian Courts
Oxford University Press (2020)
Constitutional Statecraft in Asian Courts explores how courts engage in constitutional state-building in aspiring, yet deeply fragile, democracies in Asia. Yvonne Tew offers an in-depth look at contemporary Malaysia and Singapore, explaining how courts protect and construct constitutionalism even as they confront dominant political parties and negotiate democratic transitions.
This richly illustrative account offers at once an engaging analysis of Southeast Asia's constitutional context, as well as a broader narrative that should resonate in many countries across Asia that are also grappling with similar challenges of colonial legacies, histories of authoritarian rule, and societies polarized by race, religion, and identity.
The book explores the judicial strategies used for statecraft in Asian courts, including an analysis of the specific mechanisms that courts can use to entrench constitutional basic structures and to protect rights in a manner that is purposive and proportionate. Tew's account shows how courts in Asia's emerging democracies can chart a path forward to help safeguard a nation's constitutional core and to build an enduring constitutional framework.
Forthcoming Works
Malaysia
The Oxford Handbook of Constitutional Law in Asia (2024)
When courts seek to strengthen their own institutional power, they often need to be strategic. In many fraught political contexts, judiciaries lack a history of asserting authority against powerful political actors. How can courts with fragile authority establish and enhance judicial power? This Article explores the phenomenon of strategic judicial empowerment, offering an account of how and when courts deploy various strategies aimed at enhancing their institutional position vis-à-vis other branches of government. Drawing on recent examples from apex courts in Pakistan, Malawi, Malaysia, and the United Kingdom, it explores the ways in which judges use tools of statecraft to increase the effectiveness of their decisions and enhance their role in the constitutional order.
Strategic Judicial Empowerment
forthcoming in the American Journal of Comparative Law
When courts seek to strengthen their own institutional power, they often need to be strategic. In many fraught political contexts, judiciaries lack a history of asserting authority against powerful political actors. How can courts with fragile authority establish and enhance judicial power? This Article explores the phenomenon of strategic judicial empowerment, offering an account of how and when courts deploy various strategies aimed at enhancing their institutional position vis-à-vis other branches of government. Drawing on recent examples from apex courts in Pakistan, Malawi, Malaysia, and the United Kingdom, it explores the ways in which judges use tools of statecraft to increase the effectiveness of their decisions and enhance their role in the constitutional order.
Text, History, and Precedent
forthcoming in Research Handbook on Constitutional Interpretation
Reading Ely in Tokyo
forthcoming in The New Comparative Political Process Theory
Judicial Rhetoric and Constitutional Comparativism Toward Empowered Courts: Two Asian Case Studies
Forthcoming in Inter-Asian Law
Malaysia’s Judicial Empowerment Moment
Forthcoming in Comparative Constitutional History: Landmark Judgments
Religious Freedom in Malaysia (Southeast Asia)
forthcoming in the The Oxford Handbook of Comparative Human Rights Law (expected 2024)
Monarchy and Democracy in Modern Malaysia
forthcoming in The Comparative Constitutional Design of Election and Parties (expected 2024)
Articles
Stealth Theocracy
58 Virginia Journal of International Law, 31 (2018)
Theocracies are typically thought to be born through constitutional revolution, not evolution. This Article explores a subtler phenomenon of constitutional transformation involving the place of religion in a constitutional order through less transparent means of constitutional change. This Article offers an account of this phenomenon, which it calls “stealth theocracy.” It focuses on the fundamental alteration of a constitution’s religious or secular character through informal change by judicial and political actors, rather than through formal mechanisms like constitutional amendment or replacement. This Article explores this phenomenon by focusing on Malaysia as one of its clearest exemplars, before broadening its lens to consider its implications for other constitutional systems, as well as wider understandings on the place of religion and courts within a constitutional order. It examines how the elevation of Islam’s constitutional position has moved the Malaysian state from its secular foundations to an increasingly religious order. Courts are the main agents of this phenomenon: judicial mechanisms—like jurisdictional deference to the religious courts and judicial Islamization of the secular courts—have fueled a profound shift toward a more theocratic constitutional order.
Originalism at Home and Abroad
52 Columbia Journal of Transnational Law 780 (2014)
Originalism is typically thought to be a uniquely American preoccupation. This Article challenges the conventional view that originalism enjoys little support outside the United States by showing that the story of originalism — both at home and abroad — is more nuanced than has been appreciated. I examine how originalism has developed in two unexplored contexts — Malaysia and Singapore — to show that originalism not only thrives outside the United States but that it takes on distinct variations reflecting the cultural, historical, and political conditions of individual nations. The Article argues that whether originalism thrives, and the form that it takes, is context driven and culturally contingent.
The account that this Article provides of how originalism is practiced in the world beyond the United States tests familiar assumptions in the mainstream debates over originalism. First, it shows that existing accounts of the origins of originalism are incomplete and questions the claim that originalism inevitably follows from judicial interpretation of a written constitution. Second, the experiences of countries elsewhere demonstrate that originalism is not necessarily — or even typically — associated with constraining judges. Originalists frequently claim that originalism is uniquely capable of limiting judicial discretion. Yet judges in various contexts employ originalism in support of expansive constitutional interpretation and to empower courts against the political branches. Third, this analysis sheds light on why certain nations — the United States included — are attracted to particular originalist approaches, such as original intent or original meaning.
On the Uneven Journey to Constitutional Redemption: The Malaysian Judiciary and Constitutional Politics
25 Washington International Law Journal 673 (2016)
This Article explores the Malaysian judiciary’s approach toward interpreting the Federal Constitution of Malaysia and situates it within the context of the nation’s political and constitutional history. It traces the judiciary’s tentative movement toward a more rights-oriented approach followed by its more recent retreat in several appellate court decisions. The Article argues that the Malaysian courts’ journey toward constitutional redemption has been uneven so far. In order to reclaim its constitutional position as a co-equal branch of government, the Malaysian judiciary must exhibit greater willingness to assert its commitment to constitutional supremacy and the rule of law.
Comparative Originalism in Constitutional Interpretation in Asia
29 Singapore Academy Law Journal 719 (2017)
Originalist approaches to constitutional interpretation take many forms across different constitutional contexts. This article examines the diversity of approaches to using constitutional history in constitutional interpretation and explores its practice across four Asian constitutional systems. It begins by examining the different ways in which constitutional courts and actors approach constitutional history. The article then explores at greater depth the constitutional practice of originalist arguments in four Asian jurisdictions: Malaysia, Singapore, India, and Hong Kong. The article concludes with reflections on the broader comparative observations gained from considering the salience of constitutional history in these Asian contexts.
Book Chapters
The Law and Politics of Unconstitutional Constitutional Amendments in Malaysia
in The Politics of Unconstitutional Constitutional Amendments in Asia (2021)
This chapter explores the rising trajectory of the unconstitutional constitutional amendments doctrine in Malaysia. The Malaysian experience with the basic structure doctrine reveals a story about judicial power and constitutional politics. The chapter situates the courts’ interaction with the political branches of government against the broader dynamics of dominant coalition power that has fractured into a deeply fragile democracy. It traces the evolution of the Malaysian judiciary’s engagement with the basic structure doctrine: from initial judicial resistance to the apex court’s recent jurisprudence establishing and entrenching the judicial review of unconstitutional constitutional amendments in Malaysia. It focuses on three principal cases that demonstrate the rise of the basic structure doctrine in Malaysia’s contemporary constitutional jurisprudence: Semenyih Jaya, Indira Gandhi, and Alma Nudo. While judicial embrace of the basic structure doctrine is not ubiquitous, what seems clear is that the notion of judicial review of constitutional amendments now occupies a central part in judicial reasoning and constitutional practice in Malaysia. This chapter argues that although judicial approaches toward the basic structure doctrine still demonstrate some unevenness, the seeds of the doctrine of unconstitutional constitutional amendments have taken root, and begun to thrive, in Malaysia’s constitutional soil.
Comparative Approaches to Constitutional History
in Comparative Judicial Review (2018)
An historical approach to constitutional interpretation draws upon original intentions or understandings of the meaning or application of a constitutional provision. Comparing the ways in which courts in different jurisdictions use history is a complex exercise. In recent years, academic and judicial discussion of “originalism” has obscured both the global prevalence of resorting to historical materials as an interpretive resource and the impressive diversity of approaches courts may take to deploying those materials. This chapter seeks, in Section B, to develop a basic taxonomy of historical approaches. Section C explores in greater depth the practices of eight jurisdictions with constitutional courts or apex courts that engage in constitutional review: those of the United States, Canada, Germany, Australia, India, Hong Kong, Malaysia, and Singapore.
Because our selection of cases aims to be illustrative rather than exhaustive, we do not attempt to draw firm conclusions about the global use of constitutional history. Still, the qualitative evidence that follows hints at what might well be universal within constitutional judging: (1) the significance of history broadly understood, and (2) the limits on history’s reach into contemporary rights conflicts.
Malaysia’s Invisible Constitution
in The Invisible Constitution in Comparative Perspective (2018)
Constitutions worldwide inevitably have 'invisible' features: they have silences and lacunae, unwritten or conventional underpinnings, and social and political dimensions not apparent to certain observers. The Invisible Constitution in Comparative Perspective helps us understand these dimensions to contemporary constitutions, and their role in the interpretation, legitimacy and stability of different constitutional systems. This volume provides a nuanced theoretical discussion of the idea of 'invisibility' in a constitutional context, and its relationship to more traditional understandings of written versus unwritten constitutionalism. Containing a rich array of case studies, including discussions of constitutional practice in Australia, Canada, China, Germany, Hong Kong, Israel, Italy, Indonesia, Ireland and Malaysia, this book will look at how this aspect of 'invisible constitutions' is manifested across different jurisdictions.
Book Reviews
Review of Law and Politics of Constitutional Courts: Indonesia and the Search for Judicial Heroes (2018) by Stefanus Hendrianto
International Journal of Constitutional Law Blog
(January 17, 2019)
“What shapes the role of constitutional courts in new democracies? What drives the rise of judicial power in emerging constitutional orders? Stefanus Hendrianto’s new book, Law and Politics of Constitutional Courts, explores these questions through providing an account of the importance of judicial leadership in explaining judicial empowerment, illustrated by the impact of individual chief justices on the Indonesian Constitutional Court.
The book offers a fascinating insight into the creation and development of the Constitutional Court of Indonesia and the judicial personalities behind its leadership, with a particular focus on the role of the founding chief justice Jimly Asshiddiqie. By bringing a “global south” perspective from the Southeast Asian context of Indonesia, one of the world’s largest democracies, Hendrianto’s detailed exposition of the experience of Indonesia’s Constitutional Court valuably expands our comparative horizons. Importantly, it also contributes to broader debates in comparative constitutional studies on the emergence of constitutional courts and the consolidation of judicial power in new democratic orders.”
Review of Constitutional Dialogue in Common Law Asia by Po Jen Yap
64 American Journal of Comparative Law 1024 (2016)
“Over the last two decades, scholars have theorized new models of constitutional review that avoid conferring on the courts the final word on constitutional understandings. Scholars have identified this form of constitutionalism variously as the “Commonwealth model of constitutionalism,” “weak-form judicial review,” the “parliamentary bill of rights model,” and “dialogic judicial review.” Discussions of this model of review, however, have focused primarily on Commonwealth systems in the West—such as Canada, the United Kingdom, New Zealand, the Australian Capital Territory, and the State of Victoria in Australia—with little attention paid to Asia. Po Jen Yap’s new book, Constitutional Dialogue in Common Law Asia, fills this void by exploring a dialogic model of judicial review in three Asian common law systems: Hong Kong, Malaysia, and Singapore…”
Review of The Rule of Law by Tom Bingham
70 Cambridge Law Journal 481 (2011)
“The genesis of this book occurred in 2006 at the University of Cambridge where Lord Bingham - then Senior Law Lord in the House of Lords - delivered the sixth Sir David Williams Lecture on "The Rule of Law". The lecture offered an insight into one of the country's foremost legal minds as he examined, in characteristically clear fashion, the layers of definition behind a phrase so often used that its meaning sometimes appears nebulous. Tom Bingham's 2010 book on the same subject continues to expand these insights. It fleshes out the eight principles he elucidates in his lecture in greater detail and is also forthright in its commentary on topical issues, such as the legality of the Iraq invasion and the response of the UK and US governments to 9/11, which Bingham was careful to avoid discussing while still in judicial office. The result is a succinct and highly readable account of the rule of law and how it applies to contemporary legal and political situations…”
Review of The New British Constitution by Vernon Bogdanor
69 Cambridge Law Journal 413-415 (2010)
“Bagehot’s constitution is dead, while Dicey's constitution is dying before our eyes" (p. 284). Vernon Bogdanor's clear proclamation of the demise of the classic works of the previous two centuries dealing with the UK constitution is a logical link to his central thesis: the constitutional reforms post-1997, together with Britain's entry into the European Community in 1973, have replaced the old constitution with a new British constitution. The New British Constitution traces the constitutional shift from the principle of parliamentary sovereignty, the bedrock of Dicey's constitution, to the Human Rights Act 1998, the "cornerstone of the new constitution" (p. 62)…”
Shorter Works
Originalism: A Uniquely American Preoccupation?
31 Diritto Pubblico Comparato Ed Europeo (DCPE Online) 647 (2017)
“Is originalism a uniquely American preoccupation? The short answer is no. The longer answer is that originalist arguments take on distinct variations that reflect a nations’ particular cultural, historical, and political conditions. This paper explores the use of originalist arguments in contexts outside the United States, drawing on India, Malaysia and Singapore as illustrations. The comparative perspective it offers underscores that whether originalism thrives, and the form it takes, is culturally dependent and context specific.”
And They Call It Puppy Love: Young Love, Forced Marriage and Immigration Rules
71 Cambridge Law Journal 18-21 (2012)
“In R. (Quila and another) v Secretary of State for the Home Department [2011] UKSC 45, [2011] 3 W.L.R. 836, the Supreme Court faced an immigration rule that pitted the prevention of forced marriages against young couples in genuine marriages who wished to live in the country together. A forced marriage can be defined as a marriage into which one party is coerced to enter without full and free consent, including through threats or other psychological means. In 2008, as part of the Government's efforts to prevent forced marriages, the Home Secretary amended para. 277 of the Immigration Rules so as to raise the age for a UK national to sponsor a foreign spouse or civil partner seeking admission to the country and for the incoming applicant from 18 to 21. The Home Secretary was clear that that the amendment to the Immigration Rules was to deter forced marriages, not to control immigration, as most such marriages occur between the ages of 18 and 20…”
No Longer a Privileged Few: Expense Claims, Prosecution and Parliamentary Privilege
70 Cambridge Law Journal 282-284 (2011)
“The publication of the expenses claims of Members of Parliament by the Daily Telegraph in 2009 revealed false claims made by MPs for costs incurred in the performance of their Parliamentary duties. David Chaytor, James Devine, and Elliot Morley, three MPs, were subsequently charged with false accounting, under section 17(1)(b) of the Theft Act 1968, for claiming non-existent expenses. The MPs argued that the criminal courts did not have jurisdiction to try their cases because they were protected by parliamentary privilege. This contention was rejected in the Crown Court and the Court of Appeal. The Lord Chief Justice, giving judgment for the Court of Appeal (R v. Chaytor (and others) [2010] EWCA Crim 1910), concluded "parliamentary privilege…has never ever attached to ordinary criminal activities by members of Parliament"…
The Malaysian Legal System: A Tale of Two Courts
19 Commonwealth Judicial Journal 3-7 (2011)
The Federal Constitution of Malaysia was crafted during the birth pangs of the nation in 1957 and provides the framework for Malaysia’s modern legal system. The Federation of Malaya emerged from British colonialism to achieve independence on 31 August 1957 and was joined six years later by the Borneo states – Sabah and Sarawak – and Singapore to form the new nation of Malaysia. Singapore left Malaysia in 1965 to become its own sovereign nation, and the current Federation of Malaysia comprises the Peninsula, Sabah, and Sarawak. Malaysia was born in a climate of multicultural compromise as a constitutional monarchy governed by secular laws. Islam was acknowledged as the religion of the Federation, according to article 3(1) of the Federal Constitution, ‘but other religions may be practised in peace and harmony in any part of the Federation’.
The Malaysian court system is based on the UK legal system familiar to those from common law jurisdictions, but it also incorporates distinct characteristics in the form of Islamic religious courts and two separate High Courts for the Peninsula and for the Borneo states. The judiciary in Malaysia can be assessed according to its external relationship with the other branches of government as well as its own internal dynamics with the different court systems. The external aspect is its relationship with the other two branches of government, i.e. the executive and the legislature. The internal aspect relates to the relationship of the civil courts with the religious Syariah courts – a relationship that has raised jurisdictional issues in certain areas, such as apostasy.