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100 Cornell L. Rev. 391 (2014-2015)
Authoritarian Constitutionalism

handle is hein.journals/clqv100 and id is 411 raw text is: AUTHORITARIAN CONSTITUTIONALISM Mark Tushnett Using Singapore as an extended case study, this Article examines the idea of authoritarian constitutionalism, which it identifies as a system of government that combines reasonably free and fair elections with a moderate degree of repressive control of expression and limits on personal freedom. Af- ter describing other versions of non-liberal constitutionalism, including mere rule-of-law constitutionalism, the Article offers an extended analysis and critique of accounts of constitutionalism and courts in authoritarian countries. Such accounts are largely strategic and instrumental, and, I ar- gue, cannot fully explain the role of constitutions even in those countries. Rather, I argue, where constitutionalism exists in authoritarian systems, it does so because the rules have a modest normative commitment to constitu- tionalism. The Article concludes by describing the characteristics of authori- tarian constitutionalism and offering a modest defense of its normative appeal in nations with specific social and political problems, such as a high degree of persistent ethnic conflict. INTRODUCTION .................................................... 393 I. CONSTITUTIONALISM (?) IN SINGAPORE .................... 397 A. A Brief Account of Singapore's Constitutional H istory ............................................. 398 B. Chewing Gum and Caning ......................... 398 C. Freedom of Expression ............................. 400 1. A Survey of Singapore's Regulation of Expression .... 400 a. The Internal Security Act ...................... 400 b. Sedition Laws ................................ 401 c. Libel Law ................................... 401 d. Judicial Independence ......................... 403 e. Regulation of Public Space .................... 404 f. Press Regulation .............................. 406 g. Internet Regulation ........................... 408 2. Freedom of Expression Overall: An Assessment ....... 409 t William Nelson Cromwell Professor of Law, Harvard Law School. I thank William Alford, Rosalind Dixon, Vicki Jackson, Jack Lee, H.K.M. Ewing-Chow, Rahul Sagar, Li-Ann Thio, Arun Kumar Thiruvengadam, and PoJen Yap for comments on a draft, and partici- pants at workshops at the University of Georgia Law School, Cornell Law School, New York University Law School, Rutgers-Camden Law School, and the University of Copenhagen Law School for their comments. Geoffrey Curfman, now Research Intern in the Middle East Program at the Center for Strategic and International Studies, and Al-Amyn Sumar provided important research assistance at an earlier stage of the project, as did David Hanyok, Andrea Matthews, and Joshua Whitaker at later stages.