Constitutional Statecraft in Malaysian Courts: A Naive ‘Schmittian’ Misappropriation

Abstract

Abstract In her recent book, Constitutional Statecraft in Asian Courts, Yvonne Tew develops an ambitious argument for empowering Malaysian judges to promote constitutional democracy. Her arguments rely on the idea of an unamendable constitutional ‘basic structure’ or ‘meta-Constitution’ expressive of that ideal. I argue that her proposals are normatively inadequate to this task because Tew relies on resources in constitutional theory traceable to the conservative German thinker Carl Schmitt, whose views about constitutional legitimacy and limits to constitutional amendment form part of an authoritarian political logic designed to subvert constitutional democracy that subordinates legality to power politics. I then argue that Tew's proposals, if applied to Malaysia, risk feeding into elements of Schmittian authoritarian logic that plausibly underwrite Malaysia's ethnocratic context, and conjecture (through case-analysis) that authoritarian judges could easily reconfigure her proposals to legitimate ethno-authoritarian rule. Conversely, conscientious judges who defend constitutional democracy would adopt a non-Schmittian approach that emphasises the normative priority of legality as a constraint on political power to counter ethno-authoritarian rule. Consequently, despite Tew's aspiration to equip judges with tools to defend constitutional democracy, the tools she provides threaten to undermine this aspiration such that her proposals may be characterised as a naïve Schmittian misappropriation.