Article 9(1) Regarding fundamental rules of natural justice In the Privy Council case
Haw Tua Tau v. Public Prosecutor (1981), the appellants criticised amendments to the Criminal Procedure Code ("CPC") that removed an accused person's right to make an unsworn statement not subject to
cross-examination, and replaced it with a power exercisable by the court to draw an
adverse inference if the accused person opts to remain silent after being warned about the possible consequences of doing so. They submitted that the changes violated the privilege against
self-incrimination which was a fundamental rule of natural justice. Lord Diplock, speaking for the court, questioned if the
right to silence is a fundamental rule of natural justice but found it unnecessary to decide this point as he held that the new CPC provisions provided an accused person with an inducement to testify but did not compel him or her to do so. In reaching this conclusion, the judge noted that "[i]n considering whether a particular practice adopted by a court of law offends against a fundamental rule of natural justice, that practice must not be looked at in isolation but in light of the part which it plays in the complete judicial process", and that "what may properly be regarded by lawyers as rules of natural justice change with the times". In
Public Prosecutor v. Mazlan bin Maidun (1992), the Court of Appeal held that the right to silence is related largely to the giving of evidence, and that there is no constitutional or statutory provision in Singapore protecting it. As such, to say it is a constitutional right in the form of a fundamental rule of natural justice would be to "elevate an evidential rule to constitutional status" despite the lack of "explicit provision" in the Constitution. This, in the opinion of the Court, required "a degree of adventurous extrapolation" in the interpretation of Article 9(1) which the Court did not consider justified. Victor V. Ramraj has suggested that there are four models of
due process: the formal model, procedural model, procedural-privacy model, and full substantive model.
Substantive due process, represented by the full substantive model, is concerned with the content or subject matter of a law.
Procedural due process, its extreme form represented by the formal model, deals with the manner which a law, administrative justice or judicial task is carried out. evidenced by the Singapore courts' interpretation of the word
law in
Article 9(1) of the
Constitution, based on work by Victor Ramraj
Natural justice principles originated from the procedural elements of due process, but it is uncertain if substantive elements of due process are accepted in local law yet.
Ong Ah Chuan is said to adopt the idea of procedural fairness. In the procedural model, courts go beyond a mere assessment of formal validity and inquire into the procedural fairness of legal processes. In Singapore, the current legal position is somewhere between the formal model as evidenced by the case of
Jabar bin Kadermastan v. Public Prosecutor (1995), and the procedural model evidenced by
Ong Ah Chuan. In
Jabar, the Court of Appeal held that a law is valid and binding as long as it has been validly passed by
Parliament. Consequently, whether the law is fair, just and reasonable does not matter. Lim Chin Leng has opined that to accord principles of natural justice an elevated constitutional status may cause it to override statutes, which might contradict the Constitution which vests the law making power in the legislature. Similarly, Andrew J. Harding disagrees with the idea of "substantive natural justice" because, in his view, it cannot be shown that it was the Privy Council's intent to apply natural justice in a substantive sense, since this would mean that the court can strike down a provision for inconsistency with natural justice even if it satisfies the rational nexus test under Article 12(1) of the Constitution. It will also be hard to ascertain the limits of judicial power. However, the view has been expressed that such
judicial activism would merely be the judiciary exercising its proper role. Despite these academic opinions, at present the Singapore courts are still
deferential to the exercise of Parliament's legislative powers and adopt a respectful attitude towards its pronouncements. In
Lo Pui Sang v. Mamata Kapildev Dave (2008), it was held that the words
save in accordance with law in Article 9(1) of the Constitution "incline liberally in favour of legislative power, but the clear words cannot be altered by the court". On the facts, assuming that the appellants had been deprived of personal liberty pursuant to certain statutory provisions, this had been carried out in accordance with law and thus was not unconstitutional.
Regarding the mandatory death penalty In
Ong Ah Chuan, the Privy Council held that the argument that capital punishment is unconstitutional is foreclosed by Article 9(1) of the Constitution itself because it clearly states that a person can be deprived of his life "in accordance with law". The court further noted that "[t]here is nothing unusual in a capital sentence being mandatory" since at common law all capital sentences were mandatory, and that if a capital sentence was discretionary this might reduce its
deterrent effect. The court's ruling that the mandatory death penalty is constitutional was applied by the
Federal Court of Malaysia in
Public Prosecutor v. Lau Kee Hoo (1982).
(click on the image for a larger version)|alt=A world map showing countries imposing capital punishment. However, in the subsequent case
Reyes v. The Queen (2002), the Privy Council found
Ong Ah Chuan of limited assistance as it felt that at the time it was decided the
jurisprudence on international human rights was "rudimentary". The appellant in
Reyes, who had been convicted of a double murder, appealed as to the constitutionality of the mandatory death sentence imposed on him. The Privy Council held that this penalty contravened the
prohibition against inhuman or degrading punishment or treatment in section 7 of the
Constitution of Belize. While recognising that the Constitution provides for the prerogative of mercy by vesting power to alter punishments in the
Governor-General acting on the advice of an Advisory Council. However, this power was executive and not judicial in nature, and its existence could not remedy the constitutional defect in the sentencing process. The Privy Council reached a similar conclusion in
R. v. Hughes (2002) and
Fox v. The Queen (2002). In
Watson v. The Queen (2004), the court stated that "[i]t is no longer acceptable, nor is it any longer possible to say, as Lord Diplock did on behalf of the Board in
Ong Ah Chuan v Public Prosecutor [1981] AC 648, 674, that there is nothing unusual in a death sentence being mandatory. ... [T]he mandatory penalty of death on conviction of murder long predated any international arrangements for the protection of human rights."
K.S. Rajah has noted that Singapore, having been a United Nations member state since 21 September 1965, is deemed to have accepted the obligations in the
United Nations Charter, which entails acceptance of the
Universal Declaration of Human Rights. Article 5 of the Universal Declaration states: "No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment." Furthermore, the
European Convention on Human Rights applied to Singapore from October 1953 when it entered into force until 1963 when Singapore ceased to be part of the
British Empire by
becoming a state of Malaysia.
Article 3 of the Convention prohibits torture and inhuman or degrading treatment or punishment. He said: Rajah proposed that, in the light of the
Reyes,
Hughes and
Fox cases, the holding in
Ong Ah Chuan that the mandatory death penalty is constitutional should no longer be relied on by the Singapore courts. Thus, provisions such as section 302 of the
Penal Code, which imposes the penalty for the offence of murder, should be construed such that the death penalty is not mandatory in order to bring it into conformity with the Constitution pursuant to Article 162. However, in
Yong Vui Kong v. Public Prosecutor (2010), the Court of Appeal
distinguished Privy Council cases such as
Reyes,
Hughes,
Fox and
Watson on the ground that were decided in different textual contexts, as inhuman punishment was expressly prohibited by the constitutions of the respective jurisdictions from which the cases originated. Hence, those cases were strictly based on the issue of what kind of punishment would be considered inhuman and not directly related to the issue on appeal in
Yong Vui Kong, which was the meaning of the word
law in Article 9(1) of the Constitution.
Article 12(1) Regarding the reasonable relation test Application Several local and foreign cases have adopted the Privy Council's approach in
Ong Ah Chuan to interpreting Article 12(1) of the Constitution. In
Nguyen Tuong Van v. Public Prosecutor (2005), Similarly, in
Kok Hoong Tan Dennis v. Public Prosecutor (1996)
Johari bin Kanadi v. Public Prosecutor (2008),
Yong Vui Kong, and
Mohammad Faizal bin Sabtu v. Public Prosecutor (2012), the courts reaffirmed the position in
Ong Ah Chuan that the
differentia used to define a class of persons in a statute has to bear a reasonable relation to the social object of the statute.
Ong Ah Chuan was found not to be applicable by the Court of Appeal in
Ramalingam Ravinthran v. Attorney-General (2012). The case involved a constitutional challenge by the appellant against the
Public Prosecutor for charging him with a capital offence when another accused person involved in the same drug trafficking incident was not. While the Court said that the Public Prosecutor was required to compare like with like On the other hand, the present case concerned the constitutionality of
prosecutorial discretion. When making a charging decision, the Public Prosecutor: In the Malaysian case
Datuk Yong Teck Lee v. Public Prosecutor (1992), the
plaintiff claimed that section 27(8) of the
Police Act 1967 violated Article 8(1) of the Constitution of Malaysia, which provides that all persons are equal before the law and are entitled to the equal protection of the law. It was argued that this provision was violated because parliamentarians who participated in illegal demonstrations were subject to a higher mandatory fine as compared to non-parliamentarians who had committed similar offences. The
High Court of Malaya applied the doctrine of reasonable classification and identified a rational relation between the differentia and the object of the statute. Similarly, in the Indian case
D.C. Bhatia v. Union of India (1995), the appellant challenged the constitutional validity of an amendment to the Delhi Rent Control Act, 1958, that sought to limit the protection of
rent-control legislation to areas where the monthly rent was less than 3,500
rupees. In evaluating the challenge, the
Supreme Court of India applied
Ong Ah Chuan and identified "a rational connection between the legislative classifications and the object of the law".
Refinement The current test applied to Article 12(1) of the Constitution is a three-stage test that was reformulated by the Court of Appeal in
Public Prosecutor v. Taw Cheng Kong (1998). In determining whether section 37 of the Prevention of Corruption Act is discriminatory against
Singaporean citizens, the Court cited
Ong Ah Chuan for the proposition that equality simply ensures like treatment for individuals in like situations, and not that all persons should be treated equally. On this basis, and drawing on cases from foreign jurisdictions, the court set out the three-stage test as follows: •
Stage 1 – whether the law differentiates by prescribing a different treatment for different classes of individuals. •
Stage 2 – whether the classification is founded on an intelligible differentia that distinguishes people that are grouped together from others which are left out from the group. •
Stage 3 – whether the classification bears a rational relation to the object sought to be achieved by the law in question. The Court of Appeal held that a law that is over- or under-inclusive can still bear a rational relation to the object of the legislation. The Court was of the view that it is impractical to expect the enactment of a piece of legislation to be "seamless and perfect to cover every contingency". The reasonable relation test has since been applied in cases decided following
Taw Cheng Kong such as
Nguyen Tuong Van. However, it has attracted academic criticism. Tan Yock Lin has commented that the Privy Council's approach in
Ong Ah Chuan was a mere
tautology as it provides a "glib answer" to any allegations of inequality. He argues that in determining a reasonable differentia, an ideal approach should extend beyond "mere demonstration of rationality". Yap Po-Jen has argued that the test does not allow the court to take into consideration the "wisdom or propriety of the legislative policy". As long as the court can identify a rational nexus between a classification and the object of a statute, it will uphold the legislative policy even if it is "invidiously discriminatory, unreasonable, irrational or unjust". Here, in reference to Article 14 of the
Constitution of India (the equivalent of Article 12 of the Singapore Constitution), the Indian Supreme Court stated that along with the notion of reasonable classification, there must also be a consideration of arbitrariness in an equality clause. It highlighted:
Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan (1996) applied the principle in
Maneka Gandhi. In discussing Article 8(1) of the
Constitution of Malaysia, the court held that failure to adopt such a principle would result in an "archaic and arcane approach" to the interpretation of Article 8(1). Singapore courts have integrated the notion of arbitrariness into the reasonable relation test. In
Chng Suan Tze v. Minister for Home Affairs (1988), the appellants contested the validity of sections 8 and 10 of the
Internal Security Act ("ISA"), The judgment dealt with whether the exercise of discretionary powers by the
Minister for Home Affairs under the ISA is objective or subjective, and thus whether it is subject to
judicial review. The Court of Appeal held that sections 8 and 10 were not arbitrary as "they provide for the exercise of the power to detain only for specific purposes" and therefore "bore a reasonable relation to the object of the law". Further, the Court held that if the discretion is not subject to review by a court of law, the decision is also rendered arbitrary and contrary to Article 12(1). the Court of Appeal was concerned with whether the decision by the Collector of Land Revenue to
compulsorily acquire the piece of land on which the
Jin Long Si Temple stood was contrary to Article 12(1) of the Constitution. Next to the temple was the
Ramakrishna Mission and the Bartley Christian Church, but land belonging to these properties was not acquired. The appellants, who were the trustees of the temple land, argued, among other things, that the acquisition of that piece of land was against the equal protection clause as the State had discriminated against them in acquiring only their property and not the other two properties. The Court applied a modified reasonable relation test in determining the constitutionality of the land acquisition decision. It stated that to determine if it violated Article 12(1), "[t]he question is whether there is a reasonable nexus between the
state action and the objective to be achieved by the law". The administration of a law "may be unconstitutional if it amounts to intentional and arbitrary discrimination". The mere existence of inequalities "due to inadvertence or inefficiency" is insufficient, unless it is on a "very substantial scale".
Alternatives to the Ong Ah Chuan approach Approaches differing from the
Ong Ah Chuan reasonable relation test have been applied to guarantees of equal protection in other jurisdictions. The
Supreme Court of the United States has adopted a framework that serves as an alternative to the reasonable relation test adopted in
Ong Ah Chuan. American jurisprudence on the
Equal Protection Clause is based on a "
suspect classification" model. Unlike the
Ong Ah Chuan approach, this model encompasses three tiers of scrutiny. The level of scrutiny to be applied in each case is dependent upon the particular facts involved. It has been suggested that a
proportionality analysis safeguards equality better than the American three-tiered scrutiny approach. The test of proportionality in English law, which is applied to determine whether a fundamental right is appropriately restricted by legislation, has three limbs: • The legislative objective must be sufficiently important to justify limiting the fundamental right. • The measures designed to meet the legislative objective must be rationally connected to it. • The means used to impair the right must be no more than is necessary to accomplish the objective. ==See also==