SG Constitutional Law

Question 1

Overview

Answer 1

1. SG’s constitution is based on the separation of powers (Legislature, the Executive, and the Judiciary).
2. Constitution declares itself as the supreme law. Judiciary has the exclusive power to adjudicate on the constitutionality of laws and executive acts.
3. Rule of law is an integral part of the constitution.

Question 2

Overview:

CJ Chan

Answer 2

“All power has legal limits, and the rule of law demands that the courts should be able to examine the exercise of discretionary power”.

Question 3

Overview:

Lee Kuan Yew (2011)

Answer 3

“We create a constitutional framework which suits us, the needs of our people and their basic values”.

Emphasis on autonomy.

Question 4

Overview:

5 Core Values in White Paper 1991

Answer 4

1. Society above self: Weighted group interests more heavily than individual ones. Striking a balance between individual rights and the good of the community.
2. Family as the basic unit of society: SG should not follow Western untested fashions uncritically.
3. Regard and community support for the individual: Concept of Govt as a duty to do right for the people (instead of limiting parliamentary power).
4. Consensus and not contention.
5. Racial and religious harmony.

Question 5

Constitutional Interpretation:

Ronald Dworkin

Answer 5

Justices must interpret clauses in constitution by trying to find principles of political morality that explain and justify the text and the past history of its application…judges will instil their own sense of what a good constitution would provide…but they must rely on principles that they honestly think provide a persuasive justification for our actual constitutional traditions, and not match their own political convictions.

Question 6

Constitutional Interpretation:
Approach to Fundamental Liberties (Part IV Constitution) -
Taw Cheng Kong v PP [1998] 2 SLR(R) 489, Karthigesu JA

Answer 6

1. Court must ask itself what is the underlying rationale of the article: What are the reasons for the existence of such a right and for placing it on a constitutional pedestal?
2. Court must determine the scope of the right: How extensive is the protection intended to be given by the constitution? In determining the scope of a right or liberty, the court must have regard to the Constitution in its entirety.

This is to ensure that the court gives equal effect to all the provisions of the Constitution, and not to distort/enhance the interpretation of any particular article.

Question 7

Constitutional Interpretation:
Approach to Fundamental Liberties (Part IV Constitution) -
Chan Hiang Leng Colin v PP [1994] 3 SLR 662

Answer 7

Held that state sovereignty is the over-arching principle of the Constitution.

Prof Thio Li-Ann’s Criticism:
1. Even though Court stated that it was using a balancing approach, they did not consider how much weight ought to be given to the freedom of religion. There are, however, some categories which are so impt that they determine conclusively the balancing exercise without any real form of balancing.

2. If Courts are supposed to be playing the role of fundamental liberty, they should not be doing the balancing in this manner.
3. Case seems to treat govt objectives as “trumps” over individual rights in past cases. Criticised Yong CJ’s equation of public order with “public peace, welfare or good order”, and argued that in other jurisdictions a lack of public order includes the notion of “endangerment to human life and safety as well as the disruption of public tranquillity”, and argued that “[t]o establish that public order is threatened, it appears that some degree of violence or unlawful physical violence must be shown”.

Question 8

Constitutional Interpretation:
Approach to Fundamental Liberties (Part IV Constitution) -
Change in Judgment Style?

Answer 8

1. Increasingly been a dramatic change in style of judgments over the past half-decade or so, largely due to former CJ Chan.
   - Greater elaboration of constitutional principles, and emphasis on developing an indigenous legal system and greater engagement with foreign case law.
   - Seen through the increase in the length of judgments, increase in foreign case law citations, and academic material.
   E.g. Lim Meng Suang: Gave detailed discussions how the constitution should be interpreted.
2. Thus, court judgments may exert a checking influence in ‘soft’ ways, even when judicial review does not result in overturning the legislative or executive action.

Question 9

Article 9: Protection of Life and Liberty

Answer 9

“No person shall be deprived of his life or personal liberty save in accordance with law”.

States existence of a right to life and liberty, but it does not lay down the dimensions of that right.

Scope of Article 9 is only as broad as the interpretation of “life”, “personal liberty”, and “in accordance with law”.

Question 10

Article 9: Protection of Life and Liberty -
Art 9(1) Life or Personal Liberty -
3 Ways of Interpretation

Answer 10

1. Liberal approach:
   Broad and expansive approach. Encompasses not just physical life and liberty, but also the freedom to lead a meaningful and fulfilling life.
2. Conservative approach:
   Narrow view of the phrase “life or personal liberty”. Would not take into account or consider the quality of life or personal freedom.
3. Pragmatic approach:
   Somewhere b/w liberal and conservative approach. Dimensions of “life” and “personal liberty” are given a sensible ambit, with generally accepted notions of morality.
   Determined on a case-by-case basis.

Question 11

Article 9: Protection of Life and Liberty -
Life or Personal Liberty -
Yong Vui Kong v PP [2010] 3 SLR 489

Answer 11

Concerned whether mandatory death penalty contravened Art9(1) Constitution.

Held (CA): Rejected IN SC’s expansive (liberal) approach of IN’s Art 9(1) since the IN equivalent also included right to education, health, and medical care.

1. “[T]he decision of the Indian SC is entirely understandable having regard to the economic, social, and political conditions prevailing in India… In our view, it is not possible for this court to interpret Art 9(1) in the same way that the Indian SC has interpreted Art 21 of the Indian Constitution”.
   SG courts unwilling to overstep domain of legislature as compared to IN SC, which positions itself in an activist manner by overturning legislation.
2. SG courts more likely to take a conservative approach to what “life” means. Court was not called to decide the exact scope of “life or personal liberty”, hence no clear definition was laid down in this case.

Question 12

Article 9: Protection of Life and Liberty -
Art 9(1) Life or Personal Liberty -
Lim Meng Suang v AG [2015]

Answer 12

Constitutionality of s377A PC
challenged. His counsel argued that “personal liberty” included the right to love, and thus the issue before the CA was whether “life or personal liberty” extended to the right to express affection love.

Held (CA): Art 9(1) does not encompass the right to express affection and love.

1. “Personal liberty” refers only to the personal liberty of a person from unlawful incarceration or detention” - Lo Pui Sang v Mamata Kapildev Dave [2008] 4 SLR(R) 754 at [5].
2. Although the phrase “life” has not been authoritatively interpreted by the Singapore courts, it should be interpreted narrowly in accordance with the jurisprudence on “personal liberty”. Also rejected that Art 9(1) included the right to privacy.
3. Demonstrated conservative approach that Art 9(1) is confined only to physical life and physical liberty.

Question 13

Article 9: Protection of Life and Liberty -
Art 9(1) Life or Personal Liberty -
Yong Vui Kong v PP [2015] SGCA 11

[Current Position]

Answer 13

Whether the mandatory sentence of caning contravened Art 9(1) Constitution.

1. Took a more expansive view - although Art 9(1) prohibits the state from unlawfully depriving an individual of his life/personal liberty, it does not impose any duty on the state to take affirmative measures to facilitate or promote a person’s enjoyment of his life or personal liberty.
2. Interpretation of Art 9(1) only protects a person from “prohibits the unlawful use of force against a person, including by way of amputations, mutilations, assaults, beatings, woundings, etc” ([22(c)]). Such a narrow reading would mean that there is no constitutional safeguard against other forms of criminal punishment that entail improper interference with a person’s bodily integrity or personal liberty.
3. Seems to be a slightly more expansive reading of Art 9(1) than in Lim Meng Suang. But ultimately still a very conservative approach; could reflect Court’s concern in reaching over into the legislative sphere as some of these issues are political, and left to the people’s elected representatives to decide.

Question 14

Article 9: Protection of Life and Liberty -
Art 9(1) Accordance with the Law -
Art 2(1) Constitution

Answer 14

1. “Law”: Includes written law and any legislation of the UK or other enactment or instrument whatsoever which is in operation in SG and the common law in so far as it is in operation in SG and any custom or usage having the force of law in SG.
2. Inclusionary definition of “law” is non-exhaustive due to the use of the word “includes”.

Question 15

Article 9: Protection of Life and Liberty -
Art 9(1) Accordance with the Law -
Does “law” include arbitrary legislation?

Answer 15

2 alternative interpretations:
1. Lex

2. Lus

Tan Eng Hong v AG [2012] 4 SLR 476 at [152]: Unconstitutional law not counted as ‘law’.

Lim Meng Suang: Not included if concept of a law so morally repugnant that it is virtually uncontroversial in society that it cannot be law.

Yong Vui Kong [2015], at [45]: Rules from int’l treaties will only take effect when implemented by legislation
Otherwise, the Executive would be able to in effect usurp legislative power.

Question 16

Article 9: Protection of Life and Liberty -
Art 9(1) Accordance with the Law -
Does “law” include arbitrary legislation?

Lex

Answer 16

Duly enacted law with the content of the law being irrelevant.

a. Arumugam Pillai v Government of M’sia [1975]: Reasonableness of an enactment cannot be called into question so long as it was enacted in due form and within the legislature’s competence.

b. Jabar v PP [1995] 1 SLR(R) 326: D contended that there was grounds of infringement of Art 9 due to the long time lapse between sentencing and execution date.
Held (CA): Delay was largely caused by D’s solicitors in filing court documents. Anguish that prisoners face prolonged periods of imprisonment does not amount to contravention of constitutional rights.
Any law that provides for the deprivation of persons’ life or personal liberty is valid and binding as long as it is validly passed by parliament. Court is not concerned with whether it is also fair, just, and reasonable.

Question 17

Article 9: Protection of Life and Liberty -
Art 9(1) Accordance with the Law -
Does “law” include arbitrary legislation?

Lus

Answer 17

Law incorporates fundamental rules of natural justice (“FRNJ”).

1. Approach is attractive but elusive, since there is no std and measuring rod by which principles of natural justice can be ascertained.
2. Imprudent to attempt to make comprehensive list of what constitutes FRNJ for determining the guilt of a person criminally charged.
   a. Ong Ah Chuan v PP [1979 – 1980] SLR(R) 710: Accused prosecuted for drug trafficking and mandatory death penalty was imposed. Argued that the stat presumption arising from MDA was contrary to the presumption of innocence which is implied within Article 9 and Article 12 (Equality).
3. [26] Method of interpretation for constitution on the Westminster model is to treat it not as if it were an act of parliament but as “sui generis”, calling for principles of interpretation of its own, suitable to its character, without necessary acceptance of all the presumptions that are relevant to legislation of private law.
4. [26] “Law” = System of law which incorporates FRNJ that had formed part and parcel of UK common law that was in operation in SG at the commencement of the constitution, and that citizens should have recourse for the protection of fundamental liberties.

Question 18

Article 9: Protection of Life and Liberty -
Art 9(1) Accordance with the Law -
Does “law” include arbitrary legislation? -
Haw Tua Tau v PP [1981-1982] SLR(R) 133

Answer 18

Held: No amendment to the constitution needed to empower SG legislature to enact whatever laws it thinks appropriate to regulate the procedure to be followed at the trial of criminal offences by SG courts.

Provided that so long as Art 9(1) remains, such procedure does not offend against some FRNJ.

Did not matter whether any amendments to legislation disadvantaged defendants in the procedures following in criminal trials, but only whether it was contrary to some FRNJ.

Question 19

Article 9: Protection of Life and Liberty -
Art 9(1) Accordance with the Law -
Does “law” include arbitrary legislation? -
Nguyen Tuong Van v PP [2005] 1 SLR(R) 103

Answer 19

D argued that the mandatory death sentence was unconstitutional as a form of cruel and inhuman punishment not in accordance with law.

Held (CA): “in accordance with law” in Art 9(1) of the Consti went beyond parliament sanctioned legislation to include FRNJ.

Mandatory death penalty prescribed under MDA was sufficiently discriminating to obviate any inhumanity in its operation and was therefore constitutional.

[108] Any customary intl law rule must be clearly and firmly established before its adoption by Courts.

[88] Judiciary has the responsibility and duty to consider and give effect to any rule necessarily concomitant with the civil and civilised society which every SG citizen must endeavour to preserve and protect.

Question 20

Article 9: Protection of Life and Liberty -
Art 9(1) Accordance with the Law -
Does “law” include arbitrary legislation? -
Yong Vui Kong v PP [2010]

Answer 20

Counsel argued that “law” in Art 9 excluded a law which provided for inhuman punishment (death penalty).

Held (CA): Rejected as parliament had expressly decided not to include prohibition in constitution against human punishment. Would not be right for court to interpret constitution to include such a right.

[16] But emphasised that not all legislation would qualify as “Law” for the purposes of Art 9(1), such as legislation which is directed at securing the conviction of particular known individuals and also absurd/arbitrary laws that could not have been contemplated by constitutional framers as “Law” (i.e. Act of Parliament that permits torture).

Question 21

Article 9: Protection of Life and Liberty -
Art 9(1) Accordance with the Law -
Does “law” include arbitrary legislation? -
Yong Vui Kong v PP [2015]

Answer 21

Held:
[68] No general prohibition in common law against “torture and inhuman punishment”.

Prohibition against torture is only with reference to the obtaining of a confession from an accused person.

Also prohibited only where those acts or laws passed by Parliament will have an effect on a fair trial.

[62]-[63]: Seems that FRNJ has been narrowed to only apply towards procedural rights in securing a fair trial.
- Yong Vui Kong (2011) at [105]-[106]: FRNJ “the same in nature and function” as the rules of natural justice from administrative law, viz., “the rule against bias and the hearing rule”.

Question 22

Article 9: Protection of Life and Liberty -
Art 9(1) Constitutionality of Death Penalty

Answer 22

1. Ong Ah Chuan at [33]: “There is nothing unusual in a capital sentence being mandatory… At common law all capital sentences were mandatory…”
2. Yong Vui Kong (2010) at [82]: “the plain wording of Art 9(1) does not support the conclusion that Parliament cannot make the death penalty mandatory”.

Question 23

Article 9: Protection of Life and Liberty -
Art 9(1) Constitutionality of Caning Penalty

Answer 23

Yong Vui Kong (2015):
1. [53] Art 9 does not incorporate any int’l law norms prohibiting caning.

2. [61], [65]: While no “common law prohibition of torture”, this only operates as norm of statutory interpretation. No statutory force”.
3. [68] No implied prohibition against “torture and inhuman punishment”.
4. While “prohibition is against torture is now a peremptory norm of int’l law” ([27]), int’l law does not consider caning as torture ([91]).
5. [98] Int’l law norm against torture applies such that stat power to cane does not include a power to cane in a manner that constitutes torture.

Question 24

Article 9: Protection of Life and Liberty -
Art 9(3) Access to Counsel -
When does right arise?

Jasbir Singh v PP [1994] 1 SLR(R) 782

Answer 24

D argued he was deprived of constitutional right of access to counsel, and that the right was one that was immediate. Was only allowed access to his lawyer 2 weeks after his arrest.

Held: Art 9(3) did not specify when D was entitled to consult counsel, or that D must be informed of such a right (no guidelines on what reasonable time entails).

Exercise of the right is subject to a balance b/w D’s right to legal advice on one hand, and the duty of the police to protect the public by carrying out effective investigations on the other.

Question 25

Article 9: Protection of Life and Liberty -
Art 9(3) Access to Counsel -
When does right arise?

James Raj s/o Arokiasamy v PP [2014] 3 SLR 750

Answer 25

D referred 2 questions – (a) whether there was an immediate right to counsel upon the request of a person remanded for investigations; or alternatively (b) on the premise that there was no immediate right to counsel upon the request of D, what was a “reasonable time” within which the right to counsel could be exercised.

Held:
1. [31] Right to counsel only arose within a “reasonable time” that allowed for police to conduct their investigations and procedures, balancing “interests of the arrested person on the one hand and the public interest in effective police investigations on the other” ([36]).

2. [39] Factual inquiry and not a question of law.
3. HC held at [12] that onus on police to prove that giving right to counsel would impede investigation, but CA appears to implicitly disagree at [32], giving police latitude to do investigations unimpeded.

Question 26

Article 9: Protection of Life and Liberty -
Art 9(3) Access to Counsel -
When is right waived?

Tan Chor Jin v PP [2008] 4 SLR(R) 306

Answer 26

D had persistently indicated his desire not to have legal representation and only attempted to invoke/inquire about the right prior to closing submissions.

Held:

1. Right to counsel may be waived, and in determining if there was a waiver, the court will:
   (1) assess the facts: whether D extinguished his right to counsel voluntarily or by his own conduct (e.g. not taking reasonable steps to ensure legal rep - [61]);
   (2) assess the competing interests of the parties concerned; and
   (3) focus on whether undue unfairness or prejudice has been caused to D as a result of the lack of representation ([59]) (in this case, judge had explained to D about legal representation only to have it rejected).

Question 27

Article 9: Protection of Life and Liberty -

Art 149 Preventive Detention

Answer 27

1. Justified to secure SG’s internal security and public order. Exercised primarily in the area of preventive detention or detention without trial.
2. Acts passed under Art 149 must include in the recital that the Act is made in contravention of the constitution.
   a. When there is no express stipulation, the fundamental liberties the Act seeks to circumvent remain: Lee Mau Seng.
   b. Courts will not review the case because it does not want to meddle with the Exec’s decisions: Teo Soh Lung v Minister for Home Affairs [1989].

Question 28

Article 9: Protection of Life and Liberty -

Art 150 Enactment of Unconstitutional Laws

Answer 28

Parliament may enact laws that may be unconstitutional when there is a proclamation of an emergency; such laws will be valid only for a period of 6 months after the proclamation of emergency has ceased to be in force.

Question 29

Article 9: Protection of Life and Liberty -

Art 151 Restrictions on preventive detention

Answer 29

1. D shall be informed of his grounds of detention (Art 151(1)) – unless disclosure of fact would be against national interest (Art 151(3));
2. No citizen shall be detained for a period exceeding 3 months unless an advisory board has considered any representations made by D and recommendations thereon to Pres (Art 151(1)(b)); and
3. Where the advisory board recommends the release of D, he shall not be detained further unless both Pres and the authority detaining D reject the recommendations of the advisory board (Art 151(4)).

Question 30

Article 9: Protection of Life and Liberty -
Ss 8(1), (2) Internal Security Act

Answer 30

S 8(1) ISA: If Pres is satisfied that a person is acting prejudicially to the security of SG or to the maintenance of public order or essential services, the minister shall make an order –
(a) Directing that such a person be detained for any period not exceeding 2 years; or
(b) for all or any of the following purposes:
and any order made under paragraph (b) shall be for such period, not exceeding 2 years, as may be specified therein, and may by such order be required to be supported by a bond.

S 8(2) ISA: Pres may direct that the period of any order made under subsection (1) be extended for a further period or periods not exceeding 2 years at a time.

Preventive detention under ISA does not preclude right to counsel pursuant to Art 9(3).

Question 31

Article 9: Protection of Life and Liberty -
ISA -
Can challenge detention on grounds of bad faith

Answer 31

Yeap Hock Seng @ Ah Seng v MHA, M’sia and Ors [1975]: D must prove that detaining authority acted in bad faith, and what is required is ‘proof of improper, or bad motive’ and not ‘mere suspicion’.

Question 32

Article 9: Protection of Life and Liberty -
ISA -
Must have presidential satisfaction

Answer 32

Chng Suan Tze v MHA [1988] 2 SLR(R) 525: Sufficient evidence only adduced by the production of the detention orders and evidence of Pres’s satisfaction either from the Pres himself, or by way of evidence from any cabinet minister or the secretary to the cabinet that Pres was satisfied after receiving the advice from the cabinet (or authorised minister).

Question 33

Article 9: Protection of Life and Liberty -
ISA -
Law applicable to judicial review

Answer 33

S 8(2)B ISA: No judicial review except for any question relating to compliance with any procedural requirement.

Lee Mau Seng v MHA [1971 – 1973] SLR(R) 135: S 8(2)B ISA confines JR in Courts to questions relating to compliance with the procedural requirements of the ISA.

Confirmed in Teo Soh Lung v Minister for Home Affairs [1990] 1 SLR(R) 347 (CA).

Discretion of Pres acting in acc with the advice of the Cabinet is purely subjective. Intention is to exclude a judicial inquiry into the sufficiency of the grounds to justify the detention.

Thus, the only way to succeed in JR where the ministry can produce a valid detention order and evidence of subjective satisfaction of Pres, is to prove that D’s detention is unlawful.

Question 34

Article 9: Protection of Life and Liberty -
ISA -
Duty to inform person detained under ISA

Answer 34

S 9(1) ISA: When any person is detained under any order made under s8(1)(a) ISA he shall, in accordance with Art 151, as soon as possible –

(a) be informed of the grounds of his detention;
(b) subject to Art 151(d) clause 3 which provides that no authority may be required to disclose facts whose disclosure would in its opinion be against the national interest; and
(c) be given the opportunity of making representations against this order as soon as possible.

Lee Mau Seng [1971]: Does not require that the order be made in any particular form.

Question 35

Article 9: Protection of Life and Liberty -
ISA -
ISA detention order may be suspended

Answer 35

S 10 ISA: Fulfilment of the requirements stated in conditions.
Minister may revoke any direction if he is satisfied that the person against whom the order was made has failed to observe any condition imposed or that it is necessary in public interest.

Teo Soh Lung v Minister for Home Affairs [1990]: Necessity to revoke a suspension is a matter for the Minister’s subjective satisfaction.
“Public interest” does not mean nat’l security interest; decision to suspend order not made on nat’l security interest can still be made in public interest.

Question 36

Article 9: Protection of Life and Liberty -
ISA -
Can make representations against detention order

Answer 36

S 11 ISA: Every such person shall be entitled to make representations against the order to an advisory board.

D shall, within 14 days of the service on him of the order, be informed of his right to make representations.

Shall also be furnished with a statement in writing detailing grounds and allegations of fact on which order was based.

Question 37

Article 9: Protection of Life and Liberty -
ISA -
Report + Review of advisory board

Answer 37

S 12 ISA: After receiving reps, the advisory board shall, within 3 months of the date of detention, consider the reps and make recs to Pres.

Pres may give Minister such directions as he thinks fit re the order made by Minister upon considering recs of advisory board (decision shall be final).

S 13 ISA: Each order or direction made by Minister under s8 or s10 ISA shall be reviewed by an advisory board at intervals (stated in ISA).

Question 38

Article 9: Protection of Life and Liberty -
ISA -
Burden of proof justifying detention

Answer 38

A. Chng Suan Tze: Burden of proof is on detaining authority to justify detention.

Has to be discharged by:
1. Evidence that Pres is acting in acc with advice of the Cabinet (or the authorised Minister is satisfied); and

2. Production of the detention order.

B. D can counter-argue that detention is unlawful (but adduce own evidence).

Teo Soh Lung v MHA [1989] 1 SLR(R) 461 (HC): Burden of proof is on A to prove that detention is unlawful as R has produced valid detention order and evidence of the subjective satisfaction of Pres acting on the advice of the Cabinet.

Question 39

Article 12: Equality and Equal Protection of the Law

Answer 39

Art 12(1): All persons are equal before the law and entitled to the equal protection of the law.

Art 12(2): Except as expressly authorised by this Constitution, there shall be no discrimination against citizens of SG on the ground only of religion, race, descent, or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.

** Note that it only applies to SG Citizens and sets out specific grounds of discrimination (i.e. religion; race; decent; or place of birth).

Question 40

Article 12: Equality and Equal Protection of the Law:
Reasonable Classification Test

[Taw Cheng Kong v PP [1998] 2 SLR(R) 489 (CA) at [59]]

Answer 40

To determine if Art 12 contravened (Reasonable Classification test):

1. Does the law discriminate against certain classes of individuals?
2. Is there clear criteria to differentiate the different classes of individuals?
3. Do the differentia bear a rational relation to the object of the statute?

** Intention is to determine whether people who are alike are treated alike. If test is satisfied, no infringement on the right to equality.

Question 41

Article 12: Equality and Equal Protection of the Law:

Lim Meng Suang v AG [2015] 1 SLR 26

Answer 41

S 377A PC does not contravene Art 12(1) because the reasonable classification test is satisfied:
1. S 377A discriminates against homosexual men;

2. S 377A sets out intelligible criteria to differentiate b/w the different classes of individuals (a man is either homosexual or he is not)
3. CA at [153] held that the object of s377A PC was to criminalise gay sex, therefore the object and effect of the provision coincide.

S 377A PC does not contravene Art 12 on the basis that Art 12(2) does not refer to sexual orientation or gender: only refers to religion, race, decent, or place of birth.

Not up to the courts to consider the merits of criminalising gay sex, these questions were best left to Parliament.

Question 42

Article 12: Equality and Equal Protection of the Law:

Yong Vui Kong v PP [2015]

Answer 42

S 325 CPC provides that caning is forbidden for women, men over 50, and men sentenced to death. Issue was whether caning men under 50 not on death row contravened Art 12(1).

1. Caning is discriminatory against a certain class of individuals (men under 50 not on death row);
2. The differentia b/w men under 50 not on death row and the rest of the population is clear;
3. There is rationale in relation to the differential objects of the statute

Court held that women were exempted from caning because the moral sense of community did not approve subjecting women to corporal punishment; it was not for Court to decide on the soundness/rationality of this social attitude.

Court also held that the age of 50 was a reasonable and convenient proxy to screen out people who were likely to be unfit for caning.

Furthermore, Court had discretion to impose imprisonment in lieu of caning, hence no basis to conclude that males below 50 were treated/punished in an impermissibly unequal manner.

Question 43

Article 12: Equality and Equal Protection of the Law:
Reasonable Classification Test -
Criticism?

Answer 43

Protection using reasonable classification test would not be an effective counter-measure (i.e. cannot challenge as long as parliament able to give rationale – the ban on women drivers for example in Lim Meng Suang).

But courts in both Lim Meng Suang ([30], [84]) and Yong Vui Kong [2015] ([106]) held that there was a failsafe of sorts and Courts could hold that wholly arbitrary laws would still violate Art 12(1).

Question 44

Article 12: Equality and Equal Protection of the Law:
Reasonable Classification Test -
No breach if applied to all individuals in a class of persons -
Taw Cheng Kong v PP [1998] 2 SLR(R) 489 (CA)

Answer 44

Re corruption with GIC. D argued that S 37 Prevention of Corruption Act was unconstitutional as it was an offence for SG citizen to receive gratification corruptly outside SG, but not if the same act had been committed by a non-citizen outside SG.

Held: No breach as construction of the provision was to ensure that a balance was struck between Parliament’s intention to observe the sovereignty of other nations and the objects of the PCA.

Does not offend the equality provision because it applies to all SG citizens as a class.

Question 45

Article 12: Equality and Equal Protection of the Law:
Reasonable Classification Test -
No breach if applied to all individuals in a class of persons -
Eng Foong Ho v AG [2009] 2 SLR(R) 542

Answer 45

Ps asserted that if property of one religious group is compulsorily acquired in an area where other religious groups also have properties, all should be similarly dealt with at the same time.

Held: Application of a law may be unconstitutional where the law was applied in an intentional and arbitrarily discriminate manner.

In this case, no allegation of arbitrary action on the part of the Collector, and thus it was conceded that the acquisition was proceeded with in good faith.

Question 46

Article 14: Constitutional Limits on Free Speech

Answer 46

Art 14 establishes right of freedom of speech, assembly and association, but expressly permits Parliament to cut back on that right through other laws.

Art 14(2): Provides that Parliament does not require reasonableness/proportionality. All that it refers to is Parliament’s consideration of what is necessary/expedient.

Question 47

Article 14: Constitutional Limits on Free Speech:

Restrictions on Freedom of Speech (must be necessary or expedient to do so)

Answer 47

Chee Siok Chin v MHA [2005] 1 SLR(R) 582: Legislative power to circumscribe the rights conferred by Art 14 Constitution is, inter alia, delineated by what is “in the interest of public order” and not confined to “the maintenance of public order”.

Much wider legislative remit that allows Parliament to take a prophylactic approach in the maintenance of public order. Necessarily includes laws that are not purely designed or crafted for the immediate or direct maintenance of public order.”

Test: In determining “necessary or expedient”:
(A) Establish a nexus b/w object of the impugned law and one of the permissible subjects stipulated in Art 14(2); and
(B) Govt must satisfy Court that there is a factual basis on which Parliament has considered it “necessary or expedient” to do so.

In this case, a protest outside CPF building was not necessary.

Question 48

Article 14: Constitutional Limits on Free Speech:

Freedom of speech not an absolute right

Answer 48

1. Chee Soon Juan v PP [2003] 2 SLR(R) 445: Freedom of speech not an absolute right. Balanced agst broader societal concerns such as public peace and order agst enjoyment of personal liberty.
2. Lee Hsien Loong v Singapore Democratic Party [2009] 1 SLR(R) 642: Freedom of expression is not a right that has no bounds.

Every individual has a right to reputation that the law of defamation will protect. The law of defamation presumes P’s good reputation.

Per LKY v Seow Khee Leng: Allegations of corruption and criminal conduct are very grave charges, especially if they are made against the PM … if this moral authority is eroded, govt cannot function.

Question 49

Article 14: Constitutional Limits on Free Speech:
Defamation -
Reynolds Privilege (General)

Answer 49

1. Reynolds privilege can be raised where it was clear that the journalist had a duty to publish an allegation even if it turned out to be wrong. Defence only if content of the publication is impt and of interest to the public: Reynolds v Times Newspapers.
2. JB Jeyaretnam v LKY [1992] 1 SLR(R) 791: Election speeches made to a large audience of un-ID’d persons are not privileged.

S 14 Defamation Act states that the circumstances of a GE are insufficient to give rise to an occasion of privilege even if subject matter of the publication is material to an issue in the election.

Indicative of Parliament’s intention re scope of privilege to be attached to a speech made at an election, and Court should be slow to extend such privilege.

Question 50

Article 14: Constitutional Limits on Free Speech:
Defamation -
Reynolds Privilege -
Review Publishing Co Ltd v Lee Hsien Loong [2010] 1 SLR 52

Answer 50

Issue could not be fully decided since Ds were not SG citizens. Still, Court made observations vis-à-vis SG citizens. Courts laid down guidelines on when Reynolds privilege applies:

1. Balance b/w constitutional free speech and protection of reputation in SG.
2. Parliament has final say on how that balance is to be struck (this is expressly provided by Art 14(2).
3. Where to strike a balance is essentially a value judgment that depended upon local political and social conditions.
4. SG’s political culture places a heavy emphasis on honesty and integrity in public discourse on matters of public interest, especially with regards to governance of the country.

Question 51

Article 14: Constitutional Limits on Free Speech:
Contempt of Court -
Alan Shadrake v AG [2011]

Answer 51

Whether there is a real risk that the statements would interfere with the administration of justice.

BUT, S 3(1)(a) Administration of Justice (Protection) Act provides a lower threshold (i.e. just need to pose a risk).

Question 52

Article 14: Constitutional Limits on Free Speech:

Sedition

Answer 52

Sedition is a form of public mischief that materially obstructs/disturbs public authority.

1. Use of sedition to punish/regulate freedom of speech over sensitive issues may be:-
   (i) Effective: It confers legal force to the position of the Govt; but

(ii) Undesirable: Restriction of speech doesn’t mean it doesn’t exist. Merely grows under cover and will eventually blow. Better way may be to allow people to talk it out and let other people “chill” the person engaging in irresponsible speech; and
(iii) Unconstitutional: Even though Sedition Act meant to protect agst any intention to endanger the Govt, requirement of acts expressly/impliedly inciting public disorder has been “removed” by Ong Kian Cheong [2009] (SGDC) and freedom of speech is curtailed even when there is slight chance of public disorder.

Question 53

Article 15 and 16: Freedom of Religion

Answer 53

Apparent from Art 15(1) that the freedom of religion has 2 dimensions:

(a) subjective/internal – the right to profess a particular religion.
(b) external – the right to practice/propagate one’s religion.

Question 54

Article 15 and 16: Freedom of Religion:

Religion

Answer 54

Nappalli Peter Williams v ITE [1999]: P (Jehovah’s witness) said could not participate in pledge or nat’l anthem because of religious conviction (participation in pledge and anthem was akin to a religious ceremony, which they believed was reserved for God alone).

1. [26] “The State commands no supernatural existence in a citizen’s personal belief system. Art 15 taken as a whole demonstrates that the paramount concern of the Constitution is a statement of citizen’s rights framed in a wider social context of maintaining unity as one nation”.
2. [28] “protection of freedom of religion under our Constitution is premised on removing restrictions to one’s choice of religious belief” = accommodative secularism.
3. Distinction b/w religious belief and philosophical choices: [28] A’s view of the pledge and anthem ceremony as a religious ceremony = “distortion of secular fact into religious belief … not accepted as a religious belief and is not entitled to protection under the Constitution of Singapore”.
4. Contrasted in Ng Chye Huay v PP [2006] at [29]: Some legislation “validly
   restricts freedom of speech and freedom of religion”, per purpose of Vandalism Act.

Question 55

Article 15 and 16: Freedom of Religion:

Public Order - Exception in Art 15(4)

Answer 55

Chan Hiang Leng Colin v PP [1994] 3 SLR(R) 209: 4 JWs were convicted for possessing prohibited materials that were published by a JW-associated society.

Held: Right to freedom of religion not infringed by banning of the materials, as just affected the manner in which the religion could be propagated.

1. Orders deregistering JW and banning JW materials issued because JWs refuse to perform NS, which the Govt regarded as contrary to public peace, welfare and good order. Court could not question the Govt’s exercise of discretion.
2. Burden of Proof to show an order is unconstitutional:
   Presumption is that the orders were valid. Onus on As to show that Ministers had acted ultra vires in the sense that Ministers had:-
   a. Exercised their discretion on irrelevant grounds; or
   b. Had exceeded their powers under the enabling stat provisions; or
   c. Actions were unconstitutional and contravened Art 15(1).

Question 56

Article 15 and 16: Freedom of Religion:

Right to profess and propagate religion

Answer 56

1. Madan Mohan Singh v AG [2015]: M was religious volunteer at prison with distinction b/w “practicing” and “non-practicing” Sikhs, where the former were allowed to keep their hair and beard whilst the latter could not. M was influencing the latter group to keep their hair and was eventually not granted a renewal of licence to volunteer at the prison. Argued that the hair grooming policy and refusal to renew his volunteer licence violated Art 15(1).
   Refusal to renew M’s licence was not infringement of Art 15(1) as M did not have a constitutional right to demand access into prison to propagate his religion.
2. Chan Hiang Leng Colin v Minister for Information and the Arts [1995] 2 SLR(R) 627: Right of freedom of religion is given to the extent that the profession and practice of religion do not contradict or infringe a general law which dealt with, or was invoked to preserve, public order, public health or morality.
3. Chan Hiang Leng Colin v Minister for Information and the Arts [1996] 1 SLR(R) 294:
   a. If a constitutional guarantee is to mean anything, it must mean that any citizen can complain to the courts if there is a violation of it.
   b. The fact that the violation would also affect every other citizen should not detract from a citizen’s interest in seeing that his constitutional rights are not violated.
   c. A citizen should not have to wait until he is prosecuted before he may assert his constitutional rights.