Constitutional remedies in Asia

Abstract

This chapter examines four constitutional remedies: Prospective Invalidation; Suspension Order; Remedial Interpretation; and Judicial Directive. In enforcing these four remedies, the courts have either deliberately postponed or expedited a remedy that generally follows from the judicial declaration of unconstitutionality, thereby blurring the traditional dichotomy between adjudication and legislation. Within common law Asia, as a general rule, constitutional decisions apply retrospectively. Kent Roach has observed that the suspension order in Canada gives the government ‘an opportunity to engage in policy-making, by deciding which of a range of multiple constitutional options would be implemented in light of the court’s ruling’. Remedial Interpretation is a constitutional remedy whereby the courts read-in words or read down the legal effect of statutory language, so as to make the law constitutionally compliant, without resorting to an outright invalidation. A Suspension Order permits an otherwise unconstitutional law to remain in place while the government devises corrective legislation.