Constitutional Interpretation in Singapore

Theory and Practice

Jaclyn L Neo

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781317428084
• Topic: Law
• Subtopic: International Law
• Index: Law

At the heart of constitutional interpretation is the struggle between, on the one hand, fidelity to founding meanings, and, on the other hand, creative interpretation to suit the context and needs of an evolving society. This book considers the recent growth of constitutional cases in Singapore in the last ten years. It examines the underpinnings of Singapore's constitutional system, explores how Singapore courts have dealt with issues related to rights and power, and sets developments in Singapore in the wider context of new thinking and constitutional developments worldwide. It argues that Singapore is witnessing a shift in legal and political culture as both judges and citizens display an increasing willingness to engage with constitutional ideas and norms.

Part I Theoretical frameworks

1 Intepreting the Singapore Constitution

VK Rajah¹

DOI: 10.4324/9781315690766-3

I Introduction

Our Constitution did not have a storied birth. There were no grand speeches by founding fathers at constitutional conventions. We came into nationhood suddenly, and needed a working constitution in short order. This was supplied by the Republic of Singapore Independence Act,² which was passed shortly after independence and backdated to 9 August 1965. The Act provided for the 1963 State Constitution³ and certain provisions of the Federal Constitution of Malaysia to continue in force, and made some additional provisions.⁴ Amendments were made as we found our feet as a nation.⁵ The result was a patchwork constitution. In 1970, then Prime Minister Lee Kuan Yew felt that this mess had to be polished up and asked the British Foreign and Commonwealth Office for a complete redraft.⁶ Mr Lee thought that the draft provided by the British was a firstrate job, but rejected it after further reflection. He preferred to retain the constitutional arrangements that had worked for Singapore than to pursue some unworkable perfection.⁷ In the end, the different pieces of our constitution were consolidated and published as a single document, the Constitution of the Republic of Singapore.

The origins of our Constitution have led some to assert that Singapore operates under a system of parliamentary supremacy.⁸ Whatever the theoretical niceties, we have today a constitution that is indisputably supreme in law and in fact. It shares many features with other constitutions: parliamentary democracy and cabinet government in the Westminster mould, the rule of law and the separation of powers, an independent judiciary, a bill of rights. Its interpretation is the province of the judiciary. The body of constitutional case law is still small but surely increasing. Apart from litigated cases, legal advisers and legislative drafters in my Chambers handle on a daily basis many matters that engage the Constitution and its attendant principles. Their advice on constitutional matters is taken seriously by government officials and proposals have been significantly changed as a result. To my officers, interpreting the Constitution is not a rarefied exercise.

II Fidelity to the text

How should the Constitution be interpreted? I want to start by going back to basics and stating the obvious: the interpretation of the Constitution must be faithful to the constitutional text. In a way this is a truism: how can one claim to interpret a text without being faithful to it? But, there are also higher principles involved. Underlying the notion of written law is a belief in the power of the written word: that words have meaning; that words are important; that words can bind. This is all the more so for a written constitution that is the supreme law of the land – its words are meant to bind the state and secure the rights of the people. Fidelity to the idea of a written constitution must mean fidelity to its text.

A What fidelity requires

What does fidelity to the constitutional text require? In the first place, it requires that where constitutional provisions are clear, they must be given effect to. And many of our constitutional provisions are clear enough that little is required by way of interpretation. Article 9(4) is a good example. It provides that a person cannot be detained beyond forty-eight hours without being produced before a Magistrate, and cannot be detained further without the authority of the Magistrate. This is the essence of the writ of habeas corpus. There is little that is doubtful in this provision; it does not make for long judgments or academic musings.⁹ But, it is this absolute clarity that makes the provision a bulwark of personal liberty. It is the same clarity that secures regular general elections,¹⁰ the independence of the judiciary¹¹ and the very sanctity of the Constitution,¹² among other things.

But, fidelity to the constitutional text does not stop at giving effect to the literal meaning of the text. Sometimes, value judgments have to be made in interpreting and applying the Constitution.

This is because the Constitution is not drawn like tax or criminal statutes, which are intended to have meanings that cleave to the text. Some constitutional provisions, most significantly the fundamental liberties, are broadly framed, and intentionally so. Concepts such as equal protection and free speech may have a clear general meaning, but their application to specific facts requires exposition and value judgments.

There are also implied concepts and principles in the Constitution. Some degree of implication is unavoidable in any written document, and especially so in a document with a scope as wide as the Constitution. In fact, many important concepts in the Constitution are implied. For instance, the principle of separation of powers is nowhere stated in the Constitution, but is everywhere implied in the system of government that it prescribes.¹³ Value judgments are needed to identify this and other propositions that are reflected in or assumed by the express provisions of the Constitution and without which the express provisions would be meaningless or unworkable.

I would make a short detour here and briefly mention constitutional conventions. These are not rules of law and are not enforceable by the courts.¹⁴ But they are essential to a complete understanding of how the Constitution works in practice, which may be very different from how the legal rules are framed. One would, for instance, have a very mistaken view of the British Constitution if one did not appreciate the convention that the Sovereign acts on the advice of the government of the day. Singapore has imported some conventions from the UK, such as the practice of the House of Commons, which is relevant where the Standing Orders of our Parliament are silent.¹⁵ We have also evolved our own conventions – for instance, it is the Government’s practice to consult the President before introducing constitutional amendments that affect the President’s discretionary powers, and to state the President’s views when the amendments are debated in Parliament.¹⁶ The written Principles¹⁷ agreed between the President and the Government on the protection of our past reserves is another example of a constitutional convention.¹⁸ As we mature as a polity, the development of constitutional conventions is likely to become a rich area for study.

As is evident from my earlier observations, a literal approach is not always sufficient in interpreting the Constitution and understanding how it works in practice. In the context of constitutional interpretation, there will be cases where judges are called upon to look beyond the plain words and exercise a degree of value judgment. I think we can be frank and acknowledge that the process involves a degree of judicial law-making occurring in the interstices of the written law. The power of the court in such cases is significant; short of a constitutional amendment, the interpretations they lay down are final, and what they hold to be within the domain of the Constitution is thereby removed from the ordinary processes of democracy.

Conspicuous fidelity to the constitutional text is, therefore, even more important in such cases, where the judge is, by necessity, required to go beyond the plain words. A failure to justify each decision by reference to the constitutional text taints the courts with the suspicion of preferring their personal views under the guise of interpreting the Constitution, of asserting judicial supremacy under the guise of upholding constitutional supremacy.

In practical terms, fidelity to the text in such cases means that judges must reach their decisions guided only by considerations that flow from the text and the structure of the Constitution, and the principles that undergird the text and the Constitution. Some of the more general considerations are well known. The Privy Council has said that the fundamental liberties must be given a generous interpretation that avoids the austerity of tabulated legalism.¹⁹ There is also the consideration that the Constitution is founded on the separation of powers and its provisions are to be interpreted accordingly.²⁰

Sometimes the constitutional text leads inexorably to one interpretation, even though it is not explicit. For example, if you read Article 4 and Article 93 together, there can be no doubt that the courts have the power to strike down unconstitutional laws. Another example is the right to vote. The Constitution does not, in terms, create such a right. But, if there were no such right, the system of parliamentary democracy established under Part VI and the requirement for general elections in Articles 65 and 66 would be no better than a mockery. My predecessors as Attorney-General have therefore advised, and the Government has accepted in Parliament, that there is, in principle, an implied constitutional right to vote.²¹

In other cases, the process of interpretation may be more involved and judges may have to decide between reasonable alternatives. But, this is an exercise that a judge is well-equipped to handle, using the usual tools of judicial reasoning. There will, of course, be debates on whether the judge in a given case reached the best possible interpretation of the text, and that is fine and healthy. But so long as the judge is guided by proper textual considerations, properly articulated, the interpretation that he or she reaches will be a legitimate one, even though another judge might legitimately reach a different conclusion.

In reaching their conclusions, it is critical that judges articulate their reasoning.²² The legitimacy and strength of unelected judges lies in a consistent and visible adherence to the law and to legal method. Every decision must be capable of justification with reference to legal rules, principles and precedents. A failure to give proper reasons undermines the legitimacy of the judicial process.

The guarantee of equal protection in Article 12(1) illustrates some of the points I have just made. The broad language of the clause has lent itself to much litigation. In Taw Cheng Kong’s case, the Court of Appeal²³ disagreed with the High Court²⁴ on the strength of the nexus between the purpose of a law and the classification adopted by the law that is required under the reasonable classification test. In Lim Meng Suang’s case,²⁵ the Court of Appeal was presented with wide-ranging arguments for reinterpreting Article 12(1).

After extensive analysis, the court confirmed that the established reasonable classification test was applicable, albeit with some interesting glosses, the practical implications of which remain to be seen. The judges in each of these decisions took slightly different views on what Article 12(1) required. Constitutional scholars may prefer one of these decisions over the other, or argue for yet other interpretations. But each of these decisions can be said to be legitimate interpretations because they were guided by considerations that flowed from the text of Article 12 and the Constitution. As discussed in Lim Meng Suang,²⁶ some of these considerations include: the principle that fundamental liberties ought to be generously construed; the countervailing principl...

Table of contents

• Cover Page
• Half Title Page
• Series Page
• Title Page
• Copyright Page
• Contents
• Table of cases
• Notes on contributors
• Acknowledgements
• Introduction: Judging the Singapore Constitution
• PART I Theoretical frameworks
• 1 Intepreting the Singapore Constitution
• 2 Does the ‘basic structure doctrine' apply in Singapore’s Constitution? An inquiry into some fundamental constitutional premises
• 3 Into the matrix Interpreting the Westminster model constitution
• 4 Principled pragmatism and the ‘third wave' of communitarian judicial review in Singapore
• 5 Uncovering originalism and textualism in Singapore
• PART II Interrogating assumptions
• 6 Rethinking the presumption of constitutionality
• 7 Balancing act The balancing metaphor as deference and dialogue in constitutional adjudication
• 8 The broader case for developing the content of fundamental rules of natural justice under Article 9 of the Constitution A placeholder for proportionality-type adjudication?
• 9 Whither the autochthonous narrative of freedom of speech? A guide to defaming politicians and scandalising judges in Singapore
• PART III Rethinking boundaries
• 10 The interpretation of the Singapore Constitution Towards a unified approach to interpreting legal documents
• 11 Much ado about nothing? The enigma of engagement of foreign constitutional law in Singapore
• 12 The continuing resistance to foreign law in constitutional adjudication in Singapore
• 13 Constitutional interpretation in an age of globalisation Challenges and prospects
• 14 Is Singapore's Constitution Best Considered a Legal Constitution or a Political Constitution?
• Index