Stories of power: A comparative analysis of judicial normativity in Malaysia, Singapore, and Hong Kong

Abstract

Robert Cover identifies that when deciding ‘hard cases’ about constitutional rights, judges construct narratives prioritising one normative universe (nomos) over others. This essay advances Cover’s claim, arguing that courts’ preferred nomos explains a power dynamic that is then weaponised to curtail or strengthen constitutional rights. I illustrate this judicial approach through a comparative analysis of three cases across Malaysia (Lina Joy v Federal Territory Islamic Council), Singapore (Lim Meng Suang v Attorney-General), and Hong Kong (Ng Ka Ling v Director of Immigration). This essay’s dismantling of the normative frames of judicial analysis in such ‘hard cases’ is significant because it illustrates that the court’s findings are not legally irrepressible but deconstructable and disputable. My analysis is unique in focusing on how normatively constructed power relations shape constitutional rights. I conclude by noting that judges should transparently accommodate this inevitable normativity and allow the scope of their intervention to be determined by the facts of the case.