 This is the three o'clock block here on ThinkTech on a given Wednesday, and I'm here with Kevin Tan, he's in Singapore, and he joins us by Zoom to talk about comparative constitutional law with a lot of an overlay of international law because those are his specialties. Welcome to the show, Kevin. Thank you very much, Jay. How are you. I'm good. I'm good to talk with you. Because your subjects are really dear to my heart. And I looked at your CV and I think you can help me understand a lot of things. So let me let me ask you about constitutional law in Asia in Singapore and in other Asian countries. Where do these constitutions come from. Are they modeled in any way after the US Constitution. And if not, where did they come from and how are they different or similar. Well, first of all, let me try and situate Asia. When when I talk about Asia, at least for the purposes of our, our conversation here, I'm referring pretty much to about 26 countries that occupy. North East Asia, South Asia and Southeast Asia. Right. So I don't include sort of Afghanistan, nor do I include sort of Iran and then those countries, or Central Central Asia so largely these territories. Now, in fact, if you look at the history of all of these territories, other than China, Japan. Thailand, Nepal, every other country in Asia was once a colony of another country. Most of them were colonies of European countries. This was, of course, the colonization that took place largely between the 17th and the 19th centuries. So you had first the Portuguese come to the region. And then you had the Dutch, then you had the English, and then you had the French. And so, other than these four countries that I've named everyone else was previously a colony and of course, Japan itself was a colonizer and occupied Korea, Taiwan, right. And then, of course, during the Second World War, a large swathes of the rest of Island Southeast Asia and mainland Southeast Asia. So, if you come from that background, then I think you would appreciate the fact that for several hundred years, the idea of constitutionalism was not something that would be homegrown, because you were largely a colony. Ideas about control of government state rights and so on flow from the West in that sense. And as far as the US Constitution is concerned, it obviously served as an important model as it did, as it does for many, many other countries. I mean, the US Constitution has been around for over 200 years. You know, it is one which has been studied alongside some others, right, such as the old Weimar Constitution, such as some of the old Scandinavian constitutions and so on. So, when the decolonization process took place between the 1950s and the 1960s, these were models which were looked at for sure. And so obviously ideas that were embedded in these constitutions also began to take root in slightly different forms in different parts of Asia. Well, you know, you're teaching constitutional law right at the NUS National University of Singapore you've been doing that for 20 years or so I think. But yes. But who's counting thank you. Exactly. So, and what's what's interesting about it is that they may be similar they may derive off similar roots, and they may have this common denominator notion of self government, self government. A constitution bespeaks up the people govern the place through the lens through the powers of the Constitution. This is a tremendous idea. And on the other hand, it strikes me these days that it's, it's not a permanent necessarily it's not a permanent idea, the constitutions can go south. I do, I do not mean that geographically constitutions can erode. So my question to you is in Asia in the countries that have constitutions however they got them is constitutional management constitutional governance, self governance, healthy. Or is it, is it on the rise is it on the fall. How is it doing Kevin. Wow. Okay, that's a big question, a difficult one given that we are talking about something like 26 different territories but let me try and summarize my my thoughts on this. So as I was trying to suggest, coming out of the idea of decolonization, one of the main priorities for many of the new governments of these independent states was to centralize power, not to dissipate it. So this is one of the major challenges to constitutionalism, because the idea of constitutional law. I mean if if nothing else is to dissipate power it is to separate powers, so that no one body or entity or individual can command all that power, which could lead to tyranny, of course, right. So this is one of the first biggest challenges for constitutionalism in Asia that is the tendency for all states to first be states. So, one can talk about nation building, but actually what Asia has been doing for the last 60 years, 70 years has actually been state building you still have to you have to build the state. In order to to govern in other words, if it's about law and order is order first you've got to get order before you can have law because without without order that they can't be law. So this is one of the biggest challenges right so there's a centralizing tendency, which goes against the grain of the idea of the separation of powers and the division and checks and balances that that's the first major challenge. The second major challenge for constitutionalism in Asia is the need to deal in most cases with very pluralistic societies. Many boundaries were drawn in artificial fashion during the colonial era within Asia. Lines were drawn not across natural boundaries like like geographical features, or nor were they separated by sort of distinct ethnic groups and so on but you had an agglomeration of different different peoples, having different traditions languages, religions in many many parts of Asia, of course there are some parts that are more homogeneous right so if you look at say Japan, Korea, slightly more homogeneous but the moment you come to Southeast Asia, even South Asia, you begin to see plurality so the management of plurality within these entities is a major challenge right how do you ensure that none of the minority groups get suppressed, how do you ensure that one religion doesn't end up you know suppressing or being privileged over all the others right so this is the second major challenge to constitutionalism in Asia. And so, if one wants to look at it and for many years, I would say, Western scholars of constitutional law never bothered looking at Asia because they thought oh well, you know, in most cases, it's pretty much a basket case because you know they don't really depend on judiciary or that there isn't that separation of powers and so on. But that is to ignore the social milieu in which constitutions are trying to operate within the region. So what is the health of constitutionalism in the region, well, it would be a very varied report card, you see constitutionalism being faithfully practiced, I think, or at least increasingly faithfully practice in some states in Asia. You could name a few like Japan and in Korea in Taiwan, even in the case of Singapore although I think most Americans would think otherwise but you know you can see that increasingly people are taking constitutions seriously. But again like you said there is no guarantee of a progression right there's sometimes a regression, and that we have seen so for example if you take the Philippines, it was doing very well after they got rid of Marcos and the people Revolution of 1986 and so on, but you see a backsliding. And this is happening around the world I think we see that even in the United States, you know, the United States in the founding of the United States the how the 55, you know founding fathers came together in Philadelphia in 7087 is such a remarkable story that can never be repeated you would not find in the same room. People of that caliber with those very ideas that embodied the nation and how they fought for them. And they understood right how these things work and in fact, in the first years of the American Republic there were problems I mean, it wasn't smooth sailing it wasn't as if you put out a constitution and then you know hey presto. You're going to have a good constitutional government, no I mean there were there were big problems. Jefferson wanted to get rid of the Constitution he thought it should be revised every 12 or 13 years. You know, and there were, you know controls against the press and so on. So, you know in every society. The constitutional law, the ideals of constitutionalism can work. It's much harder to get it to work. It's much easier for it to regress. And my view after studying in all these many constitutions is that ideas, constitutionalism embodies a set of ideals, which allow us within a society to manage expectations of people across the spectrum, the political spectrum. One problem is that it cannot deal with extreme ends of the pole. Right. In other words, in other words, if you have a very clearly divided society between, you know, people at extreme ends with nothing in the center. And then constitutionalism is not going to work you're going to have internet scene fighting you're going to have succession is movements and and and because between can never meet constitutionalism is about giving a platform to allow these influences to be compromised and to be consolidated and for people to make bargains that can hold everyone together in other words it acts as a mediating influence, which brings everyone together. And because that is pulled apart once the center cannot hold. Right, you hollow out the center. Then you're going to have extreme ends of the poles fighting, and they will, the twin will never meet. And that's when your, your constitution is going to collapse. Okay, I have several questions pop out of that strikes me that you have to have, you have to have the basic agreement. It's a little compact if you will that that we are going to have this sovereignty we are going to have this state and the order, and we have to agree on that first. Then we have to agree on the rules, but there are some factors in the rules that we should talk about you know one is the rule should treat them should allow compromise should require compromise and and and take care to encourage people to stay closer to the center and not, you know, become polar. The other thing is we have, we have to avoid corruption. And we have to avoid gaming, gaming the Constitution, because we game the Constitution, you know, that's a tremendous undermine. And in the United States now, of course, the big question, and this may exist elsewhere as well, is, is, how do you allow for an orderly peaceful trans transition to power. You know, we all grew up thinking I'm sure you, you thought about this when you were Yale and, and for that matter all through your studies, you know around the world, that all the writing you've done that it was a given that we could have for the most orderly transition transfer of power. Now we find that it's not a guarantee that that you can game the system. You can game the transfer of power, and in the process you can turn the Constitution and the constitutional democracy into something else. I don't think the founding fathers were thinking about this I think they realized there were issues. They realized that you'd have a need for change, sort of to remake the social compact somehow to read to read to rethink it to reimagine it to it. But that's not a guarantee. And now we're finding the constitutional democracies, you know, the United States as a leader, I suppose, because it has, you know, it was the first major constitutional democracy in the world. And now we're finding that maybe, maybe it wasn't perfect, or as you say it was flawed, but the imperfections now are becoming worse. And I wonder if the problems in Washington, and the United States in general, are making people in other countries feel arguably on constitutional democracies, a little less secure, a little less confident that what they have believed all these years about the transfer of power and, you know, and as you said, a fair minded platform to negotiate differences, whether those things are as, as guarantees they used to be. I think one of the dangers is to think that just because you have something of a semi permanent document like the Constitution that it is, it acts as some kind of a guarantee. There's no such thing, right in in in in society. We need to constantly re engage and remobilize the community to arrive at shared traditions, shared principles and ideas about how that state should be run. And this is a major challenge today, because now just speaking about the US Constitution, one of the biggest problems in the United States. And some people consider this to be a major virtue, but I consider it to be a major problem is the very onerous amendment process for constitutional amendments. In other words, if you wanted to have an amendment to the US Constitution, I mean US Constitution has been around for over 200 years. You have what 26 amendments. You don't, you can't amend the Constitution easily. Now some people would say well that's great because you know all these, you know, important ideals and values have somehow become ossified in the Constitution. But that's the problem with ossification because it's not dynamic. You are not actually responding to the needs of society at any one point, which is why, you know, the battles for appointments to the Supreme Court and battles within the US Supreme Court are so ferocious because if I can't amend the Constitution by changing the words, then maybe I can amend the Constitution by getting the right people to say the right things about the Constitution right in the way of constitutional interpretation. So I think that is one of the big problems constitutions should be somewhat permanent, they should be harder to amend than ordinary legislation so you do not end up for example, being captive to a particularly popular political party that comes in at one time with a landslide victory and then they just sort of overhaul everything and throw everything out I mean that's, that's not the idea it should be more difficult, but it should not be next to impossible to amend. Right. And so, and let me just wrap up on this. And in the amendment process, right, some amendments are technical so we won't bother with those. But there are those which involve what I call constitutional politics where, you know, values, political values, key political values need to be put forward, and so on. And that's when some kind of mass mobilization, the involvement of the mythical people. I mean in the United States, your voting system doesn't really engage the, the people at large you have like coral college, for example, and even in the case of a voting. It's not compulsory. Some people would say well that's a violation of my, my freedom of choice I can choose not to vote. But if you work things out mathematically. Those who don't vote, simply emphasize the results of those who do one way or the other. And, and so it looks you know we can say well so and so it's got, you know, 56%, but actually 56% of what, right, and that silent majority, then it doesn't speak. So these are the kinds of problems you need to be able to respond to changing needs of society, you need to engage the public through some form of mobilization and an important discussion of, of the roots. Now the problem is if you can't change the rules, then you game it. You can't game the system. Right. And of course there is the other problem of politicians today, who don't believe that the rules matter anymore. For whatever reason, and there are not enough people who will stand up and say no excuse me, you can't do that. That's not what we are about. You don't have enough people who can stand up there, because you've got this document you can't change. And so, you know, the counterargument would be, well, I'm not going to be going to be governed by the dead hand of somebody, you know, who drafted this over 200 years ago. So that's the big challenge. Right now in the US, I don't know if this is worldwide or Asia wide but right now in the US the Constitution is really not working. Our Congress is a casualty. Many people think the Supreme Court is a casualty. You know what we have is a government that can't handle the issues that need to be handled in the 21st century there are many things that many complexities that must be handled, and our government in the United States can handle it. And so what we need is a change I suppose we could mobilize and clearly people are mobilizing around voting rights and the like, but there are so many other issues, structural issues and I think what's coming out of it is the general both sides of the equation right and left. You know that the Constitution isn't isn't working, and they either game it or ignore it and and maybe maybe they moved to Singapore where life is better. But I mean we have our own challenges as well right I mean, of course we are very tiny little city state, five and a half million people. We are we are the size of you know, of a mid size American city. Really we're not we're not that difficult to govern in that sense but of course we have our fair share of problems as well and for many years, like in many developing countries we did struggle with this. This is a revolution of constitutionalism. We have had one political party that's in power since 1959, and has never been defeated at the polls. And, and I would like to say here there is, there is no voter fraud in Singapore. There's no voter fraud here either you know. Here's here's what concerns me so so you have the two sides that people are losing confidence in, in the government and in the Constitution. People are trying to game the system or ignore the system or override the system somehow the social fabric seems to have deteriorated. We don't know exactly when that started but certainly it's, it's been exacerbated recently. Where does a country go that used to have a Constitution, I mean a working Constitution that used to have the public confidence in the Constitution, but has found that there are flaws, and it doesn't have a way to solve the flaws, or come together on it. Where does it go to go the way of the Vimar Republic. Where does it go and do you have any experiences in Asia that would be informative on this. Well, you know, interesting that you mentioned the Vimar Republic because, you know, that was completely destroyed. It facilitated the rise of national socialism and the rise of Hitler. And so, is that going to happen. Well, much as we don't want that to happen that is a distinct possibility simply because the public gets so fed up with things not moving. With things not happening with, you know, the inability of the state, which is paralyzed in dealing with many of these problems. And, and, and, and although Americans have a very high, I would say constitutional consciousness nobody walks around thinking about a constitution all day right. It only pops up when you realize, oh goodness, you mean that's a constitutional problem, right, but when you have a public that is, you know, totally disillusioned with your constitutional order, then you are setting up the stage for someone, something to come along, and to show that things can work in a better way and of course that gives rise to the possibility the specter of a, of a demagogue coming in, and then taking over, and then throwing the old Constitution out, and maybe rebuilding it. I'm afraid I'm just a constitutional law professor I'm not a politician. I can't solve this kinds of problems in Asia. The problem is not so endemic for a separate for several reasons one, constitutions are not that difficult to amend. Of course, you don't want constitutions to be changing all the time I mean, Thailand is is on its 20th constitution since 1932 and I'm not talking about amendments I'm talking about new constitutions right you you don't want, you don't want, you know, constitutions to be changing like diapers all the time you, you do want it to have some permanence you want it to really matter to everybody. The only way that it can matter to everybody is that the values embedded in the constitutional order is something that is transmitted down the generations, the belief that that that is some responsibility, it is, it is not just an irritating hurdle to be mounted. It has to be something that you know when politicians and judges say that they swear to defend the Constitution what do they mean by that. It cannot be that well you know yes I will abide by the Constitution know that it's quite different from saying that I will defend the Constitution. And what you're defending you're defending the values, the traditions that are embedded in the document, not the bare words of the document. So, you know, when I went to law school constitutional law was kind of a burden. It was hard. The teachers who taught it were always brilliant I remember a fellow named Norman Dorson he was my professor, and he was an amazing man. He was a great comparativist yes. Yes, and I remember him well and I thought well if I can only get through this course this is a hard course. It's largely theoretical and philosophical. It doesn't have any immediate relevance to the ordinary day to day practice of law. If you wanted to go down to Wall Street you can make some money but not a constitutional law that is an academic subject. Unless maybe you know you're one of those guys like Larry tribe goes to the Supreme Court wins all these cases and they pay him well for that. But you know here you are, and it's more than just teaching it. You know, lawyers are the backbone of the country. You know professors are the backbone of the lawyers at least theoretically and constitutional lawyers which and professors, which have really been in the background for years and years at least in this country maybe in Asia as well, you know except that a crisis perhaps they, they, they're not running Wall Street, they're not necessarily running the country politically, as you said, and the question is, why do you do this why are you committed to do this. And do you and this is my big question, Kevin. Do you agree with me that in these difficult times, not only here but everywhere, a constitutional lawyer is busier, more valuable, more in demand, more relevant, more influential than ever before, at least in our lifetimes. Well, I'm not quite sure about the let me take the last bit first, you know whether or not it is the, you know we continue to be as influential I mean I think we are as influential as, as we as our societies will allow us to be. Why do we do this, well I think because we believe that principles are important. There are, there are many people who do believe that you know, making a big pile of money or Wall Street isn't the be all and then all of life. It's attractive but not that attractive and the other things are a little bit more attractive. What you do find constitutional lawyers doing is in the educated I mean really trying to educate and trying also to be some kind of public intellectual, where you actually share your views about certain things where you form opinions that you know hopefully coming from. Well it's very hard to be totally objective in these things but you know coming from a more objective scholarly point of view where you can actually point out where the flaws of certain arguments might be. You actually do shed light on what is the right thing and what's the wrong thing. Yes, you're right in times of crisis like this, we are much busier I am currently, although I'm here in Singapore but Malaysia is just, you know a few kilometers away, and right now there is a huge constitutional crisis looming in Malaysia. Amazing images, videos of, you know, politicians, everyone wielding the federal constitution, arguing that the Prime Minister had broken the law and that he should have placed the declaration of emergency before the house. And so this is an ongoing crisis. And I am, you know, endlessly on WhatsApp with my Malaysian colleagues, who are all of course writing in various op-ed pieces in different publications and websites, trying to explain to the public. Look, you know, let's not be hysterical this is actually what's going on. Right. It's a small role. It's a very, very small role. I think we can play but one which I think we enjoy and should play it. Well, you know, it strikes me that education of the public and you termed it awareness of the public of the basic compact of social compact legal compact of a constitutional countries so important. And regrettably, one of the problems in the US is that people have not been trained in that the average graduate of a high school has no idea about these things. And he is completely unprepared to deal with this the obligations of a citizen. And as you said he's not obligated to vote anyway. And so the whole thing is skewed for where the founding fathers might want it to be. And so the educational feature here I think is very important. Now you may educate lawyers and maybe officials more than you do, you know, the average high school graduate, but somehow it should filter down. It should filter around from where you are and the kinds of, you know, moral questions that you treat into the general public. Is it? Are they aware? Are they in tune with these issues? Well, I think, you know, at least just speaking for myself, I see I see my role a little bit differently from other people and maybe because I've been doing this for a long time and I'm not a junior scholar having to deal with, you know, promotions 10 years and so on. I think that the public education element is extremely important. I mean, it's interesting you mentioned talking about teaching constitutionalism to high school, high school students and I've actually written a book, a small little primer just 200 odd pages targeted at the high school level. And it hasn't sold that many copies, but it's available in all the school libraries and so I've actually had students come to law school and said, hey, I read your book when I was in high school, which is nice, right. I'm currently trying to see if I can find a good comic manga artist who can work with me to make it even more accessible as a way of educating people about these constitutional principles. I've actually been collecting a whole stack of very interesting, you know, sort of comics, mangas and so on, with the view to see how that can be used as an educational tool. You want to remove resistance, young people like things like that. And so if I can get it, goodness animated, that would be fantastic. See even law professors change with the times. Otherwise we will lose our audience. I want to talk about one other thing, last thing. You know, we have had shows with a number of the law professors in Hong Kong University over the last few years. And we have heard their frustration with you know the end of the rule of law in Hong Kong and it seems like it has ended. And they're involved in a dynamic and I think they started out being ordinary law professors, but as as you know Beijing put more pressure on Hong Kong, they move to the left. And to the point where a lot of them have had to leave Hong Kong, and never ever go back to either Hong Kong or mainland China. And so I'm not to say that you're in the same situation certainly you aren't but I wonder about your dynamic overall these years of being a constitutional professor and and following the way it moves the way the animal changes, because it does change. Where have you moved. Have you moved to the right, have you moved to the left. You know you listed a bunch of the topics that you're most interested in, and they seem to include a healthy dose of human rights and the like. And I wonder if that's your dynamic Kevin can you talk about that. Well, I, I, this is a really interesting question in fact, this was something which one of my junior colleagues said to me a couple of years ago. My life has started out in working on constitutional law human rights and so on. Well, I saw myself, and I think most people saw myself as kind of left of center, you know, not far left, but you know, that would be in Singapore context that would have been, you know, being a Marxist or something but no no I was, you know, sort of left of center. And my, and my young colleagues came up to me and said, Well, you know, you're, you're too much on the right these days. And I couldn't help but wonder what happened so I started thinking about, you know, looking back at what I've been writing and so on. And actually, I don't think I have moved. The transition has, has pretty much been consistent. All these years, but what has happened is that the ground has shifted. And when the ground has shifted someone who used to be on the left now turns up to be on the right. That's not a bad thing. Consistency is so important. Consistency except that you know like I said the ground shifts. So you know where you are, you know, ends up being moved as well right relatively speaking. Well, what's your advice to somebody who is teaching practicing learning about constitutional law in the United States at this critical point in time, when the whole thing seems to be in a kind of apocalypse. What's your advice about preserving preserving the Constitution. I wouldn't dare think to advise any of my American colleagues about what they should be doing. But, you know, you could continue the same merry old route talking about, you know, the, the ideas and so on but my view is that maybe it's time for another convention, whether at Philadelphia or otherwise. It's time for another convention to relook the American Constitution. It's done incredible service for over 200 years. It's looking a bit long in the teeth. And I think it's, it's time, maybe a new generation of thinkers of idealists can come together and maybe, you know, recharge the Constitution, forge a new compact that can take America forward for another 200 years. And if that could happen, it would be, wouldn't it, a global event. It would be 1000 feet high. Everyone would want to know about in constitutional lawyer around the world will be watching with baited breath. Yeah. Kevin Tan, thank you so much for joining us. It's really a great to be with you to be in your office there and see all those books and and hear the sound of constitutional thinking over a lifetime of career thank you so much Kevin. Thank you, thank you for having me Jay.