THE DOCTRINE OF PROSPECTIVE OVERRULING IN ASIA
Author: Harsh Mahaseth,
Graduate Student, Asian Legal Studies,
National University of Singapore
The author intends to look at the doctrine of prospective overruling, some examples from the courts in Asia with regards to this particular doctrine and a debate regarding whether such a doctrine is required or not. The author will then rebut the criticism against the doctrine and while agreeing to Permanent Judge Bokhary about why such a doctrine is necessary in society.
Asia has both centralised and decentralised systems of judicial review. Apart from ruling on the constitutionality of legislative or executive enactments, courts can use different types of reviews such as Limited Constitutionality or Limited Unconstitutionality, Prospective Ruling, Temporal Validity and Judicial Deadlines, Unconstitutional Declaration without Invalidation and Judicial Warnings, and Judicial Law-Making.
When there is a law which is found to be in contravention to the constitution, it is invalidated; however, the retroactivity of the invalidation has come to question recently. The United States Supreme Court gives the courts the decision whether to give retrospective effect or not while delving into the history of the legislation, the reason for its enactment and what it effect it has had in the nation, and the consequences of giving the rule retrospective effect. The Doctrine of Prospective Overruling entails the courts the power to place a limit on the retrospective application of its decisions and also an effect to not apply to past transactions so as to bring more confusion or debate over it. In centralized systems of judicial review, the constitutional courts generally give prospective effect to decisions of unconstitutional invalidation. If required then courts even give additional time for the impugned laws to remain in force before the legislature can revise or enact new laws.
EXAMPLES OF THE USE OF DOCTRINE OF PROSPECTIVE OVERRULING IN ASIA
Prospective overruling has come under much debate recently in many different nations. While the British courts hold in favour for the existence of the doctrine of prospective overruling, the Australian Courts reject the same. However, in Asia, several courts have demonstrated a general approach towards giving prospective effect to decisions finding impugned laws or orders unconstitutional. Cases such as the case of IC Golaknath v State of Punjab in India, the case of Public Prosecutor v Dato’ Tap Peng in Malaysia,  the case of Abdul Nasir bin Amer Hamsah v Public Prosecutor in Singapore, the case of Koo Sze Yiu v Chief Executive of the HKSAR in Hong Kong, and the case of the Right to Vote of Nationals Residing Abroad Case in South Korea, have emerged dealing with the doctrine of prospective overruling.
This doctrine recognizes the necessity to stop the legislation from immediately losing its effect, and rather give a certain time frame to the legislative to grant them with some time to correct the said legislation and fill the void. Such a limited time suspension is required and necessary in cases where the legislation was of vital importance.
In Hong Kong in the case of Koo Sze Yiu v Chief Executive, the Final Court of Appeal gave prospective effect to the decision and according a temporal validity to the impugned law which had been declared unconstitutional. In South Korea in the case of The Right to Vote of Nationals Residing Abroad Case, the Constitutional Court of South Korea accorded a temporal validity to the impugned law which had been declared unconstitutional.
The American case of Linkletter v Walker, was referred to in the Indian and Malaysian counterpart decisions. The Supreme Court of India in the case of I.C. Golaknath v. State of Punjab, used the doctrine of prospective overruling for the very first time. In this case Chief Justice Subba Rao held that while it is the court’s duty to always bring in better legislations and improve the situation of the nation, there is also a possibility that chaos can ensue if certain amendments are suddenly withdrawn from the Indian Constitution. Hence, he invoked the doctrine of prospective overruling and submitted that the judges have the power to decide the retrospectivity of a decision and its applicability as there are no statutory provision barring him from employing the doctrine.
SOME CRITICISM OF THE DOCTRINE OF PROSPECTIVE OVERRULING AND REBUTTALS
Problems that may arise from the use of the doctrine of prospective overruling are that there could be allegations as to how a judge has the jurisdiction to declare whether they can grant such an order for prospective overruling. As mention earlier in the decision of I.C. Golaknath v. State of Punjab by Chief Justice Subba Rao that the judges have the power to decide the retrospectivity of a decision and its applicability as there are no statutory provision barring them from employing the doctrine of prospective overruling. Furthermore, Permanent Judge Bokhary has held in the in the case of Koo Sze Yiu v Chief Executive, that “the judicial power to suspend the operation of a declaration is a concomitant of the power to make the declaration in the first place”. Considering this view the criticism of jurisdiction can easily be tackled.
Another criticism has been seen of when can the court be justified to give a temporal validity when it has unequivocally found the legislation to be unconstitutional. With regards to the justification regarding giving a temporal validity even though the legislation has unequivocally been declared unconstitutional, taking note of Permanent Judge Bokhary there is a need for such temporal validity when there is a possibility of creating a void in the legal order which can dissolve society or imperil the rule of law. There is also a need to give temporal validity when the impugned laws are involved with controversial social policies. This would then require the policy makers and the general public to have sufficient time to deliberate upon new policies. In JY Interpretation No 666, the Constitutional Court of Taiwan struck down a law which only penalized prostitutes but not those engaged in sexual transactions, on the ground that it violated the principle of equality. The Constitutional Court provided for a two-year temporal validity to the impugned legislation to ensure enough time for the legislature and the general public to deliberate upon it and take a decision on the policy issue.
THE REASON FOR THE NECESSITY OF THE DOCTRINE OF PROSPECTIVE OVERRULING
Agreeing with the two given judgements and Permanent Judge Bokhary’s statement, the author believes that the doctrine of prospective overruling gives a temporal validity to the laws which have been declared unconstitutional to allow the legislature enough time to revise the laws before the date on which the said laws finally become invalid. A declaration of unconstitutionality could ensue chaos with a void being created in the laws. The Constitutional Court of Taiwan has given deadlines between one to three years in the cases of JY Interpretation No 251 and JY Interpretation No 261. The cases have shown that there is a need to provide sufficient time to revise the laws and to reorganize the agency implementing it. However, it should also be noted as Permanent Judge Bokhary had mentioned in the case of Koo Sze Yiu a time period for the temporal validity of the impugned legislation should not be prolonger unnecessarily as “an unduly lengthy suspension will defeat the declaration of unconstitutionality”.
The existence and the scope of this particular doctrine differs based upon situation to situation as different cases would have different contexts. In the I.C. Golaknath case, Chief Jusrtice Subba Rao laid down some propositions. He stated that the doctrine of prospective overruling should only be used for cases arising out of matters relating to the Constitution of India; and the doctrine should only be used by the Supreme Court judges as it is the only court to have constitutional jurisdiction in India.
The courts should have the power to employ the doctrine of prospective overruling; but, this power should be used with the utmost of caution, sparingly only in extreme cases where there needs to be a balance between the legislation and its illegality and the effect and disruption that the legislation may cause if it is declared unconstitutional at this moment. The Court needs to be satisfied that the balance between the two are disrupted and only at such occurrences must a temporal validity be employed.
The author believes that the doctrine of prospective overruling is a crucial doctrine which can help develop the constitutional jurisprudence of the nations and on the above-mentioned views and principles, it can be seen that this doctrine of prospective overruling has been exercised in discretion by the courts in a fairly liberal manner.
 Wen-Chen Chang, Li-ann Thio, Kevin YL Tan and Jiunn-rong Yeh eds., Constitutionalism in Asia: Cases and Materials (Oxford, Hart Publishing, 2014).
 Linkletter v Walker 381 US 618, 629 (1965).
 Mary Arden, Human Rights and European Law: Building New Legal Orders (Oxford Scholarship Online, 2015).
 Supra 1.
 Supra 1.
 In re Spectrum Plus Ltd.  2 AC 680.
 Ha v State of New South Wales (1997) 189 CLR 465.
 IC Golaknath v State of Punjab,  AIR SC 1643.
 Public Prosecutor v Dato’ Tap Peng  2 MLJ 311
 Abdul Nasir bin Amer Hamsah v Public Prosecutor  SGCA 38
 Koo Sze Yiu v. Chief Executive of HKSAR,  3 HKLRD 455,
 Right to Vote of Nationals Residing Abroad Case, 2004 Hun-Ma 644 et al.
 Supra 12.
 Gallagher v.Lynn,  A.C. 863 (H.L.) at 870 (Eng.).
 Supra 3.
 Supra 9.
 Johannes Chan, Disturbing the Past and Jeopardising the Future: Retrospective and Prospective Overruling, The 2014 Administrative Law Fall Conference.
 Supra 12.
 Supra 18.
 Supra 1.
 JY Interpretation No 666, 6 November 2009,
 Supra 1.
 JY Interpretation No 251, 19 Jan 1990
 JY Interpretation No 261, 21 Jun 1990
 Supra 2; JY Interpretation No 613
 Supra 12.
 Constitutional Remedies under the Basic Law, Basic Law Bulletin Issue 13 (2011).
 Supra 18.