CCTL Comparative Constitutional Law Research Forum Seminar - ‘The Use of Foreign Law by Constitutional Judges in Common Law Asia’ by Ms. Virginie H.L. Kuoch (Online)

This seminar, based on the speaker’s PhD thesis, explores the relationship between Hong Kong, Singapore and Malaysia’s constitutional judges and foreign law–including international law. These jurisdictions shared some common historical features. However, their judges’ attitude towards the citation and the use of foreign law differs. While Hong Kong’s courts welcome foreign citation with open arms, Singaporean and Malaysian’s courts appear to be more reluctant. From the study of various approaches of constitutional interpretation to judicial reasoning and decision-writing techniques through the application of the principle of stare decisis, this research aims at providing elements that could explain these different behaviours towards comparative law. Moreover, the use of comparative law by constitutional judges is linked to judicial dialogue. How shall one characterize the network of Asian judges? Finally, based on a contextual institutional analysis, the way in which comparative law is mobilized by the courts depends on the position of the judiciary power with the executive and legislative branches. The migration of the basic structure doctrine, as well as the proportionality analysis in constitutional adjudication cases, reflect this core idea.