5.

FUNDAMENTAL LIBERTIES, HUMAN RIGHTS & CONSTITUTIONAL

INTERPRETATION
RIGHTS AND CONSTITUTIONALISM

The Constitutional State

o Natural law deposits all political authority in the people and makes the
state the agent of the people. Without this doctrine, the bill of rights
against the state would be mere pretence and utterly without validity.
Rights as Justice
o Jus (what is due) which is the root of justitia (justice)
o Protection of vital interest.
o Public/private interest e.g. abortion law where right to life starts from
conception, other controversial rights?
Counter-Majoritarian check on abuses of power
o Speaking of rights means enforcing it against something or someone.
o Culture and judicial review.
Hence, constitutional bargain.
o Theory of state shapes contours of rights and theory of permissible
limits.
o Underlying political ideology includes utilitarianism, collectivism,
liberalism (autonomy of the individuals constrain welfare goals),
communitarianism (Soviet system where rights are to promote socialist
system), theocratic system (Egyptians right of free speech limited by the
sharia).
Liberal liberals vs. illiberal liberals if all human beings/views are
equal, how can you say your liberal views are better than my
communitarian views? The liberal views are not exactly neutral, but
they are substantively enforcing neutrality.
Is choice most important? Note: German Internet Cannibal Case
(2003)
Atomistic conception of rights (liberal) vs. structured conception of
rights (communitarian)
o Singapore rejects the liberal state approach to drugs.
Mohamed Emran bin Mohamed Ali v. Public Prosecutor (2008)
Accused argued that violates equality because the police
officer who was undercover was not prosecuted.
HELD: Necessary to have police officers to act more than just
detectives and passive observers. Detection and prosecution
of consensual crimes committed in private would be
extremely difficult, especially in drug trafficking, where there
is usually no victim to report the matter to the police or are
unwilling to give evidence.
Hence, must have deterrence as it remains a grave menace to
our society today.
1

CONSTITUTIONAL INTERPRETATION

Badan Peguam Malaysia v. Kerajaan Malaysia (2008)

o HELD: The principles of constitutional interpretation are not the same as
the ones normally used in interpreting an ordinary statute or law and it
should be construed with less rigidity and more generosity.
This allows for additional stuff to be imputed, that that the constitutional text is
not exhaustive (implied rights?)

INTRODUCTION

Protecting rights through interpretation as a Counter-Majoritarian Check

parliament is inadequate safeguard because rights are inherently majoritarian,
and cannot be safeguarded by a majoritarian institution, individuals deserve
more protection than the state, hence constitutional liberties should be given a
generous reading.
Judicial Review & the Separation of Powers the Counter-Majoritarian
Difficulty.
o Doctrine is that the mandate to make law from the People is manifested
though elected representatives.
o Judges are not elected and lack the majority mandate, hence the
Blacksonian myth that judges are only to discover and declare what the
law is but in reality, judges do make law.
Judicial approach is an usurpation of legislative powers to remake
the constitution according to their own political ideologies, contrary
to the formal constitutional amendment procedure.
o However, draw a distinction between judges doing political law-making,
interpreting policies into the Constitution vs. constitutional law-making,
where judges merely declare the laws of the unwritten constitution
between the interstices of the written supreme constitution.
Latter is an acceptable filling of gaps, elucidating ambiguities
judges do make law interstitially.
Theories & Methods of Interpretation to take into account special needs
for interpreting Westminster Constitutions.
o Constitutional interpretation is a process where abstract arguments of
principle mingle with historical, institutional and specifically legal factors
(e.g. precedents, statutory interpretation.
o Some considerations:
The more specific the legal text, the more detailed and complex the
constitution is as a whole, the greater will be the role played by
textual and structural arguments.
The force of judicial rulings will vary, depending on the doctrine of
precedents adopted in the system and the number and qualify of
those precedents.
Court should be prepared to depart from a single decision which
appears inconsistent with the arguments of moral principle
underlying a right.
3

Rotunda, Nowak and Young, Theories and Methods of Constitutional

Construction and Interpretation in the Case Law and the Literature (1986)

The American Debate the last 2 reigning.

o Sociological Jurisprudence judges to use moral philosophy, history and a
societal consensus.
o Legal Realist judges make use of judicial power to impose their personal
views and preferences.
o Neutral Principle or Democratic Process Theory judgments based on
institutional role played by the court in the democratic process and not on
personal preferences of the judges.
o Interpretivist School courts should apply words of constitution as
understood by the framers.
o Value-Oriented School courts should promote social good as envisioned
in the constitution + current societal consensus on fundamental values.

Richard H Fallon Jr, A Constructivist Coherence Theory of Constitutional

Interpretation (1987)

Arguments from text words as starting point, like a literal interpretation.

Arguments from constitutional theory intent of the framers (Originalist),
ongoing history (Living Tree), judicial doctrine/precedent.
Structural arguments inferences from structures and relationships in the
constitution.
Consequentialist arguments taking account of the outcomes/consequences.
Ethical arguments based on ethical or moral values and arguments.
Arguments based on sociological evidence.
Comparative constitutional arguments looking at international law, and
developments in other jurisdictions.

NATURE OF WESTMINSTER CONSTITUTIONS

2 fundamental differences of Westminster Constitution from ordinary

legislations different interpretation needed.

Hinds v. the Queen (1977)

[1] The Westminster constitutions are products of a negotiated agreement

between the departing colonial power and the native inhabitants embodies
agreement made between representatives of different shades of political
opinions.
[2] It is evolutionary and not revolutionary providing for continuity of the
government through successor institution, all the branches of government
exercising powers by its predecessor.
o Underlying the Westminster constitution is the doctrine of separation of
powers it is taken for granted.
o Thus the constitution does not expressly prohibit exercise of legislative
powers by the executive or judiciary.
4

o Can even omit providing express conferment of judicial power to the

judiciary but nonetheless, it is implicit in the very separation of the
organs in the Constitution that judicial power (however distributed) is to
be vested exclusively in the judiciary.
Dissenting argument:
o Westminster model does not limit the legislative capacity of Parliament,
and does not mean that Parliament cannot by ordinary enactment alter
the jurisdiction and powers of the judiciary.

Ong Ah Chuan v. Public Prosecutor (1981)

In a Westminster model, reference to law (to assure that all individual citizens
continue to enjoy fundamental liberties) as in in accordance to law, equality
before the law, protection of the law, refers to a system of law which
incorporates fundamental rules of natural justice that had formed part and
parcel of the common law of England that was in operation in Singapore at the
commencement of the Constitution.
Note: Singapore Court of Appeal in Nguyen Tuong Van v. Public Prosecutor
(2005) rejected the Singapore Privy Councils literalist approach of reading law
in the context of Art. 9(1) in Jabar v. PP, electing to follow Ong Ah Chuan.
o Courts may depart from the process of interpretation and instead, be
guided by the principle of giving full recognition and effect to
constitutionally accorded rights and freedom.

ATTITUDE OF LOCAL COURTS TO INTERPRETATION ( MODE)

Predominant judicial approach deferentialism to state authorities, curbing the

adventurous spirit and judicial creativity in constitutional construction,
especially in the aftermath of Chng Suan Tze.
Primacy of the Written Text approach the 4 walls approach (precedents
from other jurisdictions extraneous).
o Loh Kooi Choon v. Government of Malaysia (1977)
HELD: No point looking at other constitutions because the
constitution stands on its own right and should not be overridden by
extraneous principles of other constitutions.
o Colin Chan v. Public Prosecutor (1994)
HELD: The constitution is primarily to be interpreted within its own 4
walls and not in light of analogies drawn from other countries such
as Great Britain, USA or Australia.
Sui Generis principles of interpretation constitution is the supreme law, and
ought to be interpreted slightly differently without too much regard for
precedents, hence within the walls, courts are generous.
o Dato Menteri Othman bin Baginda & Anor v. Dato Ombi Syed Alwi Syed
Idrus (1981)
HELD: [1] Judicial precedent plays lesser part than in interpreting
ordinary legislation and [2] constitution is a living piece of legislation
and should be construed broadly and more generously and not in a
pedantic way.
5

A constitution is sui generis because it calls for its own principles of

interpretation, suitable to its own character, without necessarily
accepting
original
rules
and
presumptions
of
statutory
interpretation.
o Merdeka University Bhd v. Government of Malaysia (1981)
HELD: The only true guide and only course which can produce
stability in constitutional law is to read the language of the
Constitution itself, no doubt generously and not pedantically, but as
a whole and to find its meaning by legal reasoning.
o Palm Oil Research and Development Board Malaysia v. Premium Vegetable
Oils Sdn Bhd (2005)
HELD: Constitution to be interpreted prismatically so that the
citizens will obtain the full benefit and value of those rights.
Interpretation should not be narrow and pedantic.
Purposive interpretation usage of s. 9A, Interpretation Act. But although
purposive approach is a helpful thing, just adopted Parliaments intention may
render the courts to be just a mouthpiece of Parliament? Also, why use a
legislation to interpret the constitution (c.f. Palm Oils generous sui generis
approach).
o Constitutional Reference No. 1 of 1995 (1995)
HELD: Purposive interpretation should be adopted to give effect to
the intent and will of Parliament, by reading the words in the entire
context, in their grammatical and ordinary sense, harmoniously with
the scheme of the Act, the object of the Act, and the intention of
parliament.
Court cites s. 9A, IA and seems to reject literal approach.
o Chee Siok Chin v. Minister for Home Affairs (2006)
Interpretation of scope of right to public assembly under Art. 14.
HELD: Court adopted a very wide interpretation of Parliaments
powers to curtail constitutional freedom where necessary or
expedient depends on Parliaments intent of the interest of security
or public order.
o Chan Hiang Leng Colin & Ors v. Public Prosecutor (1994)
Art. 15 religious freedom guarantee in relation to the deregistration
of the Jehovahs Witnesses whose pacifist beliefs were at odds with
compulsory military service.
HELD: Court adopted a purposive approach and went back to
parliamentary debates where the Minister rejected concept of
conscientious objectors and thus, the government has no choice but
to prosecute those who refuse to do National Service, holding that
Art. 15 must be read as not to defeat this purpose.
CRITICISM: Why public order consideration treated as determinative
trumps > constitutional liberty?
o Yong Vui Kong v. Public Prosecutor (2010)
HELD: On determining whether torture was cruel and inhuman
punishment under Art. 9, court went back to Wee Commission
deliberations to see why it was not explicitly included.

Strict Textualism approach.

o Jabar bin Kadermastan v. Public Prosecutor (1995)
HELD: Any law depriving a person of life or liberty is valid and
binding so long as it is passed by Parliament. The court is not
concerned with whether it is also fair, just and reasonable as well.
o Rajeevan Edakalavan v. Public Prosecutor (1998)
Issue was whether there was an additional right to be informed of
the right to counsel in Art. 9(3).
HELD: Duty of the judge is to interpret laws passed by Parliament to
ensure that public is upheld. He cannot expand the scope and imply
into the Constitution and other legislations, his own interpretation
etc, which are clearly contrary to Parliaments intention.
Right in Art. 9(3) shall be allowed is couched in negative terms,
and hence, no constitutional right of an arrested person to be
informed of his constitutional right to legal counsel because its not
an obligation imposed on the relevant authorities.
But Art. 9(3) provides the right of legal counsel, means we always
have to memorise our constitutional rights ourselves!
Key Concepts approach purpose or object, intent.
Note: Ong Ah Chuan vs. Colin Chans paramount mandate argument in Art.
15s Freedom of Religion, Mazlans formalistic approach obscuring constitutional
analysis of Art. 9s in accordance with law, failure of justification of
Defamation Act as a derogating law via Art. 14(2)(a) because Art. 14(1)(a)
Freedom of Speech does not encapsulate the entirety of the common law
fundamental right to free speech, and Singapores approach in Art. 12s Equal
Protection.
Note: We have long gone beyond the 4-walls doctrine, Refer to bottom for
Comparative Constitutional Law From Foreign Jurisdiction,
Note: Post-Ong developments, and discussion of implied rights below.

INTERPRETING FUNDAMENTAL LIBERTIES (APPROACH RIGHTS BASED)

Individual rights the basis of fundamental liberties.

o Ong Ah Chuan v. Public Prosecutor (1980)
HELD: Courts should give Part IV a generous interpretation
avoiding what has been called the austerity of tabulated legalism,
suitable to give the individuals the full measure of their fundamental
liberties. Means individuals should be accorded the most generous
protection.
o Dewan Undangan Negeri Kelaman v. Nordin bin Salleh (1992)
HELD: Incline scales of justice on the side of the fundamental rights
guaranteed by the Constitution.
o Taw Cheng Kong v. PP (High Court)
Constitutionality of s. 37, Prevention of Corruption Act, under which
an act committed outside Singapore by a Singaporean was an
offence, but not one if committed by a non-Singaporean.
7

HELD: Courts must endeavour to give full effect to the fundamental

rights conferred by Part IV, construing them liberally and scrutinising
the impugned legislation. Constitutional rights are enjoyed
because they are constitutional and are not stick and
carrot privileges.
Theory of Rights - must ask [1] what is the underlying rationale
of the constitutional provision? And [2] having determined why its
there, what is the scope of the right how extensive is the
protection intended to be?

JUDICIAL BALANCING
BALANCING)

PROCESS

AND

LOCAL

VALUES

( APPROACH

Balancing is a weighing of all competing interests c.f. non-balancing

approach/categorisation approach determined by conclusive presence of that
one factor.
There is a necessary trade-off between individual liberty and the right of the
community, hence a delicate balancing exercise involving several
imponderables and factors such as societal values, pluralism, prevailing social
and economic considerations as well as the common good of the community.
When interpreting rights, what are we balancing? (Must be clear, must be
against the primacy of other constitutional issues, not just against other mere
interests.)
o Rights of the individual vs. state imperatives e.g. freedom vs. public
order & security.
o Competing rights e.g. right to free speech vs. right to be safe.
o Rights of majority vs. rights of minorities.
Problems of balancing state interest in Singapore.
o Failure to differentiate between the strengths of the state interest
compelling, important or mere.
o Failure to substantively differentiate between the types of state interests
interests in efficient administration < interest accruing to public interest
and government (e.g. national security).
o Failure to calibrate the degree of threat posed to public good (e.g. public
order considerations).

CONSTITUTIONAL BARGAIN
Thio Li-ann, Beyond the Four Walls is an Age of Transnational Judicial
Conversations: Civil Liberties, Rights Theories and Constitutional
Adjudication in Malaysia and Singapore (2006)

Anglo-American phrases freedoms in absolute terms.

Continental Europe and Latin American models phrases rights as qualified by
references to community goods like public order and morality.
Singapore follows the latter model e.g. Art. 14 where the freedom of speech is
subject to or restricted by the law of defamation, much like the underlying
concepts and constitutional bargain expressed by Art. 10 of the European
8

Convention on Human Rights where the freedom carries with it dues and
responsibilities.
CONSTITUTIONAL BARGAIN: THE INFLUENCE OF CULTURE

Local culture plays a dominant role in influencing constitutional interpretation,

especially since the government espouse a group-oriented and communitarian
society as a facet of Asian values.
o Tan Chew Kwee Jen v. Tan Chee Kiong John (2006)
HELD: In Singapore, traditional and conservative Asian values still
hold sway, despite some erosion of these values by Western
influences.
Quare: Doesnt this mean that the purposive interpretation has a
particular cultural perspective?
Asian Values:
o Preference for strong political leadership and an interventionist state >
political pluralism.
o Responsibilities discourse > rights discourse.
o Consensus-seeking politics > adversarial politics.
o Prioritisation of collective welfare > individual concerns.
o Basic needs > civil political rights (economic growth precedes democracy,
but social harmony also deemed essential to the economic imperative!
Thats why we have a 5 pronged social defence).

Shared Values White Paper, Singapore Parliament (Cmd 1 of 1991)

Singapore is an Asian society and Asian societies emphasise interests of the

community over the rights of the individuals. However, individual also has rights
which should be respected and not lightly encroached upon.
It is an interesting play out of constitutional liberties formulated in individualist
term (and the mechanism of rights-oriented judicial review) plays out within a
illiberal or communitarian legal-political culture.
o Nation before community and society above self.
o Family as the basic unit of society.
o Regard and community support for the individual.
o Consensus instead of contention.
o Racial and religious harmony.

Thio Li-Ann, The Secular Trumps the Scared: Constitutional Issues Arising
from Colin Chan v. PP (1995)

Undue emphasis on rights can lead to hyper-individualism and moral relativism,

e.g. impoverishing the traditional American concept of duty and personal, civic
and collective responsibilities.
Undue emphasis on duty can result in the subordination of the individual to the
false god of Society.

Shad Saleem faruqi, What are Human Rights? Some Explanations on

Different Conceptions and Perspectives (1996)
9

Although it is clear that the Asian traditions attitudes towards the nation,
religion, culture, family and community are reverential, but the different
perspectives between the orient and the occident on where the dividing line
between freedom and responsibility does not justify the conclusion that personal
liberties are alien to Asia.

Thio Li-Ann, An i for an I? Singapores Communitarian Model of

Constitutional Adjudication (1997)

The Singaporean government has espoused an ideology with Neo-Confucianism

nuances, and hence the judicial process has a presumptive bias accorded to the
importance of collective interests as defined by the government.
But the assertion of cultural relativism is not a conceptual rejection of individual
human rights.
Hence, does the judiciary recognise instances where there is a legitimate claim
by the individual vis a vis the collective, and what principles has it laid down to
help us discern the sphere where the individual rights do trump over the
community interest?

WHAT DOES BALANCING ENTAIL?

T Alexander Aleinikoff, Constitutional Law in an Age of Balancing (1987)

Definitions and forms of balancing

o Definition
Identification, valuation, and comparison of competing interests.
Courts identify the interests implicated by each case, attach value
to the identified interests, and reach a decision or construct a rule of
constitutional law.
It is different from adjudication which is mainly analogical
balancing focuses on the interests or the factors of the case
themselves, but the totality of the circumstance.
Can be metaphorically seen to be interests resting on a set of
scales.
o What interests are balanced? Usually thought of as individual interests
against interests of the government.
Origins of balancing
o Major break with the past and is a response to the collapse of the 19 th
century conceptualism, formalism and half a century of intellectual and
social change.
o Balancing demonstrates that the judiciary could reject mechanical
jurisprudence without rejecting the notion of law.
Internal critique of balancing
o Problem of evaluation and comparison.
Courts have no objective criteria for valuing and comparing the
interests at stake.

10

There are potentially conflicting sources of values which

should the court use? History, current social consensus,
constitutional goal etc).
Competing interests are not incomparable.
o Problem of a universe of interest.
Although in theory the courts will take an expansive view as to
which constitutional interests are a stake, but in practice, courts
never make full inventory of the relevant interests.
o Problem of the individual/state dichotomy it is arbitrary to balance by
putting individual against the government.
External critique of balancing
o Role of the Court
Judicial balancing replicates the job that a democratic society
demands of its legislature.
CRITICISMS: But, argument for balancing is that judicial
constitutional interpretation is to catch errors in legislative
calculation. Also, perhaps courts also improve the balancing process
by giving weight to interests that the legislature may have ignored
and undervalued (e.g. protecting underrepresented groups and
protecting constitutional rights that are sometimes forgotten).
Also, balancing does not seek to maximise social welfare or
represent voters, but simply insists that the constitution be
interpreted in light of social context (and not in a vacuum) hence,
its not usurping legislative function of representation.
o Conception of constitutional law.
Constitutional law comprises of principles discovered by weighing
interests relevant to resolution of a particular constitutional
problem. Hence, the constitution is a document to ensure that the
judges treat each particular interest with respect.
CRITICISM: This affects the protection of constitutional rights,
because if it is simply an interest that may be overcome by other
non-constitutional interest, it does not accord with the common
understanding of right. Furthermore, under a regime of balancing,
a constitutional right is no longer a trump, but merely a card of a
higher value in the same suit.
Other non-balancing methods?
o E.g. categorical approach to constitutional construction.
o Chan Hiang Leng Colin v. Public Prosecutor (1994), trumping approach
where the presence of NS to protect the sovereignty, unity and integrity
of Singapore becomes the paramount mandate of the constitution.
CRITICISM: Adopting the categorical approach = refusal to perform a
balancing of constitutional issues at stake and allow consideration of
public order to trump issues of individual liberty without weighing
the conflicting considerations.

NON-BALANCING, GOVERNMENT/STATE RIGHTS AS TRUMPS

11

In these decisions, although it notes express constitutional restrictions, the

analysis goes no further in discussing how to appropriately balance liberty and
public goods.
o Chan Hiang Leng Colin & Ors v. Public Prosecutor (1994)
Art. 15 religious freedom guarantee in relation to the deregistration
of the Jehovahs Witnesses as a society whose pacifist beliefs were
at odds with compulsory military service.
HELD: Art. 15(4) clearly envisages that the right of freedom of
religion is subject to inherent limitations and is not an absolute and
unqualified right.
The sovereignty, integrity and unity of Singapore are undoubtedly
the paramount mandate of the Constitution (Really? Where is it
found? Maybe it is a soft constitutional law?) and anything, including
religious beliefs and practices, which tend to run counter to these
objectives must be restrained.
Echo of the basic feature doctrine?
Court also introduced social protection but where is this in Art.
15(4)?
o Peter Williams Nappalli v. Institute of Technical Education (1995)
Whether a Jehovahs Witness who taught at the ITE had been
wrongfully dismissed for not taking the National Pledge or singing
the National Anthem.
HELD: The interest of the State in the education system must
prevail over those of the individual. No one forced P to
become a teacher at the ITE, he left Singapore Polytechnic
(which did not require him to do the acts) on his own accord.
o Chee Soon Juan v. PP (2003)
HELD: Freedom of speech is not an absolute right. Broader societal
concerns such as public peace and order must be engaged in a
balancing exercise with the enjoyment of this personal liberty.
Factors were treated as conclusive trumps and legislature was fully
within its Art. 14(2)(a) powers in enacting PEMA.

BALANCING RIGHTS AND COMPETING INTERESTS

Public Prosecutor v. Koh Song Huat Benjamin (2005)

o Accused charged under Sedition Act for posting an Anti-Malay and antiMuslim blog.
o HELD: The right to propagate an opinion on the internet is not an
unfettered right, and must always be balanced by the right of another
persons freedom from offence, and tampered by wider public interest
considerations.

Thio Li-Ann, Singapore Human Rights Practice and Legal Policy: Of

Pragmatism and Principle, Rights, Rhetoric and Realism (2009)

12

When balancing rights in a responsibilities discourse, must consider whether

the responsibility is owed to the state, or another human being courts should
not confuse the 2.
In Chee Siok Chin v. Public Prosecutor (2006) where 4 protestors demonstrated
outside the CPF building, the court held that their rights had limits because
Parliament had through legislation placed a premium on public order,
accountability and personal responsibility this is a duty owed to the state. But
court then went on to say that the public have a general right to be protected
from insults, abuse and harassment this is to respect the rights of other
people.

COMPARATIVE
CONSTITUTIONAL
(APPROACH FOREIGN CASES)

LAW

FROM

FOREIGN

JURISDICTIONS

While adhering to the 4 walls approach towards constitutional interpretation,

the courts do engage in comparative constitutional law exercises in considering
foreign case laws as models to emulate or anti-models to reject.
o 4 walls approach constitutions should be primarily interpreted within its
own 4 walls rather than foreign analogies, foreign judgments unhelpful,
distinguishing judicial roles and the utility of decisions because they are
based on regional human rights standards.
Chan Hiang Leng Colin & Ors v. Public Prosecutor (1994) and
Nappalli Peter Williams v. ITE (1999).
o Emulation to test and confirm the soundness of principled normative
reasoning by showing consistency with foreign trends and progressive
developments (Chng Suan Tze), to help develop normative reasoning and
interpret the content of a right, to promote progressively development of
jurisprudence in relatively novel areas, or to fill a lacunae in the law (tort
of harassment in Malcomson v. Naresh Kumar Mehta).
Reticence towards foreign decisions although courts have used foreign cases
hat supported their decisions.
o Indian authorities.
Yeap Hock Seng v. Minister for Home Affairs, Malaysia (1975)
HELD: When there is a dearth of local authority, Indian
decisions are entitled to the greatest respect and will
normally be followed unless the court has cause to disagree
with the reasoning of any such decision.
Phang Chin Hock v. Public Prosecutor (1980)
HELD: Indias Constitution was framed in totally different
circumstances from Malaysias, by a constituent assembly (an
assembly with power to frame and amend a constitution) (and
hence now, even though Art. 368 allows Parliament powers to
amend, it is subject to implied limitations of the basic
structure) and not by ordinary mortals.
Karam Singh v. Menteri Hal Ehwal Dalam Negeri, Malaysia (1969)
HELD: English courts are more realistic than Indian judges who
are indefatigable idealist seeking valiantly to reconcile the
13

irreconcilable whenever good conscience is pricked by an

abuse of executive powers.
o USs First Amendment
Chan Hiang Leng Colin & Ors v. Public Prosecutor (1994)
HELD: The Constitution is to be interpreted within its own 4
walls, and not in light of foreign analogies. Singapores
Constitution has no establishment clause and our social
condition is markedly different from the US.
o European Convention on Human Rights.
Chee Siok Chin v. Minister for Home Affairs (2006)
HELD: Terms and tenor of Art. 10(2) of ECHR different from
Art. 14. English law influenced by the ECHR and thus
fundamentally different from Singapore. Furthermore, we have
no concept of proportionality whether legislative interference
with individual rights corresponds proportionately with a
pressing social need.
Lee Hsien Loong v. Review Publishing Co Ltd and Anor (2009)
HELD: Defence of qualified privilege in Reynolds v. Times
Newspaper Ltd (1998) where journalist has the professional
interest to impart knowledge for public interest, does not
apply in Singapore because of the consideration of the Art. 10
ECHR, which influenced the decision.
Koh Wah Kuan v. Pengarah Penjara Kajang, Selangor Darul Ehsan
(2004)
HELD: UK decisions now applied the ECHR and requires new
judicial role for UK judges.
Malcomson Nicholas Hugh Bertram v. Naresh Kumah Mehta (2001)
Issue of harassment through trespass and unsolicited
communication constituting tort of nuisance.
HELD: Court appeared to approve of a UK case influenced by
the ECHR privacy rights jurisprudence.
o UK cases.
Attorney General v. Barry Wain and Others (1991)
HELD: Court cautioned that it was important to not lose sight
of local conditions. Local conditions are different from the UK,
it is many and varied.
Attorney-General v. Chee Soon Juan (2006)
HELD: UK case law must be treated with considerable caution
because of differing legislations. Also, enactment of ECHR has
since influenced development of UK common law.
Furthermore, conditions unique to Singapore necessitate that
we deal more firmly with attacks on the integrity and
impartiablity of ocurt courts geographically small etc.
Attorney-General, Malaysia v. Manjeet Singh Dhillon (1991)
HELD: In applying the law of contempt, court should not lose
sight of local conditions and it is necessary to take a stricter
14

view here of matters pertaining to dignity of the court due to

different social conditions.
Chng Suan Tze v. Minister for Home Affairs (1998)
HELD: Court took heed of the developments in UK law on
judicial review of administrative action as well as those of the
Commonwealth. Rejected subjective review in favour of
objective review in determining Singapore preventive
detention cases.
Note: Legislation was introduced to reverse this decision, bring
it back to subjective review.
o Arguments for restoring subjective test: [1] Singapores
national security matters should be governed by local
cases in local conditions. [2] Judiciary should not be the
final say on national security matters. [3] Preventing
detention is precautionary and judges are ill equipped to
investigate on circumstances warranting such restraints.

15

FUNDAMENTAL LIBERTIES AND HUMAN RIGHTS: AN INTRODUCTION

FUNDAMENTAL LIBERTIES AND HUMAN RIGHTS

American constitutionalism
o Adoption of a written constitution with a justiciable bill of rights capable
of enforcement in a court of law and represents a fetter on legislative and
executive power by dint of judicial review.
British
o Judicial review did not extend to primary legislations, and with no written
constitution/bill of rights, everything was lawful unless specifically
prohibited by statutes hence, residual liberties and not rights.
o Later the Human Rights Act incorporated the ECHR and now rights are
protected by Parliament and courts.
Singapore some examples. Refer to bottom.
o Non-judicial method methods for protection include the Presidential
Council for Minority Rights.
o A person is at liberty to do as he wishes except that which is prohibited by
law or if encroaches upon the rights of others (Cheong Seok Leng v. Public
Prosecutor (1988)).
o Chapter on Fundamental Liberties in the Constitution means that rights
are given greater protection, enjoying greater protection than statutory
interests or privileges (Taw Cheng Kong v. Public Prosecutor (1998) where
court emphasised that they are fundamental liberties and not stick and
carrot privileges).
o Furthermore, adoption of the ASEAN Charter in 2007 binds Singapore to a
treaty providing for the creation of an ASEAN human rights body.
o Courts have recognised and balanced non-constitutional interests against
constitutional rights (Chee Siok Chin v. Minister for Home Affairs (2006)).
o Aspects of the common law such as the tort of conspiracy and the offence
of scandalising the courts, also limit fundamental liberties.
International law
o Attempts to incorporate the concept of fundamental liberties through the
UN, Council of Europe etc gave birth to human rights law.

WHY PROTECT RIGHTS? STATES ATTITUDES TOWARDS HUMAN RIGHTS

Why protect rights? Normative commitment to human dignity (both sacred and
secular).
o Intrinsic worth of the person + Principle of equality.
Judeo-Christian doctrine of personality
Imago Dei the insistence of the individual as the final value,
the emphasis upon the transcendental importance of each
mans soul, creates an insoluble conflict with any sort of
absolutism.

16

Categorical imperative treat individual as end and never merely

the means, the moral preciousness of rational persons (but why only
rational people?).
o Egalitarian principle - extend rights to all persons or only some? Equal or
differentiated rights?
All human beings share the same intrinsic worth.
Greek stoicism the recognition that we are part of a wider society.
C.f. hierarchical societies (e.g. caste system, Confucian patriarchy,
Nazism).
o Realist justification based on prudence and necessity.
Transcendent logic pre-state.
From natural law to natural rights (18th century).
Positivist scepticism (19th century).
Post World War 2 revival of natural rights as human rights
after horrors of Holocaust (20th century).
o Other theories organic state, collectivism Marxism (considered rights
as bourgeois illusion), utilitarianism (greatest happiness for the greatest
number).

Wong Kan Seng, The Real World of Human Rights (1993)

Life in any society necessarily entails constraints.

The exercise of rights must be balanced with the shouldering of responsibility
balancing individual vs. community.
Singapores political and social arrangement have irked some foreign critics.
o Intervention to change individual social behaviour (e.g. rehabilitation
treatment for drug usage).
o Harsh laws which may be considered unconstitutional in some countries.
But as such, communitys interest will be sacrificed because of the
human rights of drug consumers and traffickers, allowing flourishing
of drug-related crimes.
o The Singapore government is accountable to its people, are not justified
by abstract theories or the approbation of foreigners, but by the more
rigorous test of practical success.

Datuk Abdullah Ahmand Badawi, Statement of the Malaysian Minister of

Foreign Affairs made at the Vienna World Conference on Human Rights
(1993)

Right to development is a fundamental and inalienable human right.

o The West had an enormous advantage of history and the plundering of
economic resources of their colonies.
o For many developing countries, basic needs are not met yet human
rights and democracy are meaningless in an environment of political
instability, poverty and desperation.

INTERNATIONAL LAW AND THE CONSTITUTION

Customary International Law

17

o Status of putative CIL norm.

o Reception into domestic legal order.
o Application to case facts.
o Hierarchy when conflict with domestic law.
Treaties
o Treaties not binding until enacted locally and incorporated.
Enact norms amend constitution, adopt legislation etc.
Creating institution national tribunals, ombudsman etc.
Policies e.g. Art. 2(e), CEDAW: to take up appropriate measures to
prevent discrimination against women in employment. But this is no
longer public law! Its public private law.
Furthermore, we have reservations to CEDAW because our
Constitution protects minority rights, so cannot simply have
easy equality.
o But presumption of legislative consistency to the international standard.
Concepts and classifications.
o Inalienable rights vs. alienable privilege.
Taw Cheng Kong v. PP (1998)
o Individual vs. collective.
Private rights vs. public goods.
Public philosophy will shape public goods.
o National security Internal security Act.
o Public order public order act.
o Law and order miscellaneous offences act.
o Purposes prejudicial to public peace, welfare or good
order in Singapore societies act.
o Public health infectious diseases act
o Public morality undesirable publications act.
There is a trade off, the right (self-centric) vs.
Rights of others e.g. freedom vs. equality.
Community standards e.g. decency, civic virtue.
Public goods e.g. health, morality, order.
Duties/responsibilities other-centric.
Hyper-individualism vs. collectivism.
Moderating effect of civic responsibilities, and civic virtue
performing as an internal restraint.
o Negative vs. positive.

Thio Li-ann, Reception and Resistance: Globalisation, International Law and

the Singapore Constitution (2009)

Increasing permeability of domestic legal order to international regulatory

regime giving rise to internationalisation of constitutional law.
o Gradual process of formalisation of regional institutions vested with
substantial decision making power delegated to them by states, able to
play a check and balance function in curtailing nation-state sovereignty.
o International law can enter into the constitutional landscape either by [1]
political branches of government or [2] attitudes of the courts towards
relevance and persuasiveness of arguments drawing from treaties,
18

customary international law, or even soft international law norms, when

constructing fundamental liberties.
Singapore dualism (need additional act of legislative incorporation),
implementing treaty obligations and reservations.
o Presumption is that the domestic legal framework is sufficient to enable it
to perform its international obligations under treaties (e.g. Art. 12 held to
already enshrine equality in response to CEDAWs request to include an
equality for women).
o Gradualist approach amendments to existing laws preferred to adoption
of specific legislations wholesale.
o Reluctance to commit to provisions that Singapore does not agree with
fully (e.g. treaties with restriction on capital punishments and death
penalty).
o Prefers soft approach like Statements and Guidelines instead of hard law.
o Reservation and supremacy of domestic law Singapore deploys the
technique of treaty reservations to insulate domestic law from changes
when it does not confirm with international standards.

Nguyen Tuong Van v. Public Prosecutor (2005)

CUSTOMARY INTERNATIONAL LAW BEFORE DOMESTIC COURTS

Customary international law is universally binding on all members of the

international community (unlike treaty law) except a persistent objector.
Singapore Constitution is silent on whether international law forms part of the
law of the land no express rules.
Monoist approach - directly applied as domestic law.
o In Public Prosecutor v. Nguyen Tuong Van (2004), although Singapore was
not a party to the 1963 Vienna Convention on Consular Relations at that
time, the High Court recognised Art. 36(1), to notify a sending state that
one of its nationals has been arrested, as a CIL norm. Singapore does
confirm with the prevailing norms.
Dualist approach a necessary and prior step is that the Legislature must pass
legislation incorporating international treaties into the national legal system.
o Yong Vui Kong v. Public Prosecutor (2010)
HELD: CIL has to be incorporated into domestic law if it is
consistent with domestic statutes etc before being applicable as
part of common law. Even then, accepted common law still >
statute law.
A rule is a CIL if there is the existence of extensive and virtually
uniform state practice and opinio juris sive necessitatis.
o Adopting a dualist approach, the government can impose a unity of
process and purpose in Singapores undertaking of international
obligations (e.g. enactment of specific legislations, reservations on
treaties etc).

INTERNATIONAL CUSTOMARY HUMAN RIGHTS LAW BEFORE DOMESTIC COURTS

19

When implementing customary human rights law, national courts play a role in
enforcing human rights.
Issue is whether customary human rights law is a legal source for the judges to
draw in giving a generous and purposive interpretation to rights.
Increasing, arguments based on the Universal Declaration of Human Rights
(UDHR) have popped up, and although the UDHR is recommendatory and not
legally binding in nature, many of its provisions have since been accepted as
embodying CIL.
o Sometimes tersely dismissed as in Colin Chan v. Public Prosecutor (1994),
sometimes treated more seriously and with greater nuance in Nguyen
Tuong Van v. Public Prosecutor (2004) and Re Gavin Millar Q.C. (2008).

Thio Li-ann, Beyond the Four Walls is an Age of Transnational Judicial

Conversations: Civil Liberties, Rights Theories and Constitutional
Adjudication in Malaysia and Singapore (2006)

Malaysia has found the UDHR as only declaratory in nature and not legally
binding.
Singapore Court of Appeal has accepted that Art. 5 of the UDHR was CIL but
disagreed that death by hanging, the mandatory death penalty for drug
offences fell within its ambit.
o Nguyen Tuong Van v. Public Prosecutor (2005)
HELD: Capital punishment in accordance with due process of law is
not recognised as a violation of the customary law of human rights.
Also, in the case of conflict between CIL and a domestic statute, the
latter will prevail.
o Re Millar Gavin James Q.C. (2008)
Case was concerned with the principle of equality of arms (equality
of legal representation), which was argued to be a fundamental part
of any fair trial guarantee, as envisioned in Art. 10, UDHR. There is
no parallel in Part IV of the Singapore Constitution.
o Yong Vui Kong v. Public Prosecutor (2010)
HELD: Domestic law should be interpreted consistently with
Singapores international legal obligations, but e.g. where
international human rights law contradicts our Constitution, then it
is not amenable because our Constitution does not contain any
express prohibition against inhuman punishment (in fact, we have
rejected a proposed Art 13 by the Wee Commission).

SOFT INTERNATIONAL LAW

Norms based on soft international law, which is not legally binding, have been
cited before the courts.

Thio Li-ann, Reception and Resistance: Globalisation, International Law and

the Singapore Constitution (2009)

20

Norms of international human rights law have been invoked for educative
purposes, providing valuable insight, demonstrating viewpoint diversity etc.
o E.g. In PP v. Nguen Tuong Van (2004), counsel cited the Beijing Statement
of Principles of the Independence of the Judiciary in the LAWASIA Region
adopted at the 6th Conference of Chief Justices of Asia and the Pacific, with
a view to underline the importance of the judiciary in death penalty cases.

THE CONSTITUTIONAL GUARANTEE OF HUMAN RIGHTS

Early Examples
o Magna Carta (1215)
o French Declaration: Rights of Man & Citizen (1789)
o US Bill of Rights (1791)
International Bill of Rights
o Universal Declaration of Human Rights (1948)
Freedom of speech & belief.
Freedom from fear & want.
Art. 1: All human beings are born free and equal in dignity and
rights. They are endowed with reason and conscience and should
act towards one another in a spirit of brotherhood.
Arts. 2 21: Civil political rights (life, liberty etc).
Art. 4 - ?: Socio-economic rights.
Inherent rights (are not state grants), ethical limits etc.
o Covenant on civil and political rights (1966)
o Covenant on economic, social and cultural rights (1966)
o Note: Singapore is not a party to the latter 2 treaties. We take a pragmatic
approach, where economic development is the paramount consideration,
and sometimes, certain liberties have to be sacrificed for the sake of
development and security.

CONSTITUTIONAL PROVISIONS

Constitution rights reflect heavy Western influences they define a sphere of

individual autonomy that the state cannot intrude into. Includes:
o Right to life and liberty (Art. 9).
o Right to property (none in Singapore government felt that it would
impede economic progress, and although a modified form of Malaysias
Art. 13 was recommended by the Constitutional Commission 1966, it was
not adopted.
o Right to equality (Art. 12).
o Right against repeated trials and unknown crimes (Art. 11).
o Right against slavery and forced labour (Art. 10).
o Right to freedom of conscience as articulated in freedom f speech (Art. 14)
and freedom of religion (Art. 15).
o Right of freedom of movement (Art. 13).
Some liberties felt my framers to be more important than others, and hence are
framed in absolute form (e.g. slavery in Art. 10(1)) whereas the rest are
qualified with exceptions (e.g. Art. 12s equality).
21

There are different categories of restrictions.

We have no welfare rights.
And strangely, also no minority rights.
However, also note Art. 152(2), where the special position and rights of
the Malays as indigenous people of the region affects the right to equality.
Fundamental liberties in Singapore, the road not taken.
o Malaysian Constitution and Reid Commission (1957)
o Wee Commission Recommendations (1966)
Property as per Art. 17, UDHR.
Anti-torture as per Art. 5, UDHR.
Vote as per Art. 21, UDHR.
Judicial Remedy as per Arts. 8 and 10, UDHR
Beyond Part IV includes citizenship, contest elections, sue government etc.
o
o
o
o

BEYOND THE CONSTITUTION

Implied constitutional rights?

o Rights listed in Westminster Constitutions not exhaustive in both
principles and rights. In Hinds v. The Queen, the court held that
Westminster Constitutions left much to necessary implication from the
adoption in the new constitution of a government structure.
o Wee Commission recommended clauses for a right to vote, a right not to
be tortured and a right to judicial remedy.
Right to Judicial Remedy judicially acknowledged as falling within
ambit of judicial power in Art. 93.
Right to Vote constitutional or simply statutory as derived from the
Parliamentary Elections Act. (Refer to Chapter 5, the
Legislature)
Wong Kan Seng (Is Voting a Privilege or a Right) (2001)
Right to vote at parliamentary and presidential elections is
implied within the structure of our constitution. Parliamentary
form of government and the constitution provides for regular
election. Hence the right to vote is fundamental to a
representative democracy and the PEA is simply the process
to give effect to this right.
o Whether enumerated rights in the constitution are exhaustive or
declaratory if latter, then arguable that constitution not only declared
enumerated rights, but also preserves pre-existing rights in the common
law.
(Refer to Chapter 1 Basic Features Doctrine) even though
Teo Soh Lung rejected the doctrine as articulated in Kesavananda,
but implied that the judge had some basic structure of the
constitution in mind. Door is not close to finding un-enumerated
rights in Part IV.
[1] Recognition of certain implied rights in the Right to Vote.
[2] Courts, in their capacity as guardians of individual liberties,
should be able to develop jurisprudence along the trajectory
of finding associated rights implied within the existing
22

constitutional right it is not creation of a new right

(especially those of a political or moral character,
controversial!), but a discernment of implied rights to bolster
the textual rights in order to ensure that citizens enjoy the
full benefit and value of those rights.
[3] Builds upon the Ong Ah Chuans approach, where the
meaning of the word law in the Westminster Constitution
incorporates the fundamental rules of natural justice it is a
constitutionalisation of common law principles.
o But note Post-Ong developments implication is that
court maintains a concerted resistance towards finding
un-enumerated rights to bolster existing rights,
effectively reducing the prospect of a more robust form
of judicial review (Rajeevans any broadening of rights
should be addressed in the political and legislative
arena, a judicial cession of its role to protect
fundamental liberties since our representatives in
parliament are the one chosen by us to address our
concern perhaps suitable in parliamentary supremacy,
but Singapore is not!).

Common law residual liberties form the foundation of our legal system?
Cheong Seok Leng v. PP (1988) the common law is the basic law of
Singapore, means that the common law is a source of substantive value (e.g. we
have common law privacy rights for tort of confidence and harassment).
Dr Bonhans Case (1610) where common law as a source of
normative values.
o Singapore draws a distinction between Core rights and Contested rights.
Even the UDHR is a contested article with conflicts of interpretation.
o Suggested that certain common law rights go so deep that even
Parliament cannot be accepted by the Courts to have destroyed them
e.g. In Fraser v. State Services Commission (1984), Cooke P considered
that in Taylor v. New Zealand Poultry Board (1984), the literal compulsion
by torture would be without the lawful power of Parliament.
o In Malaysia, arguments raised that there is an implied right of access to
courts, serious implications for ouster clauses.
Kekatong Sdn Bhd v. Danaharta Urus Sdn Bhd (2003)
HELD: s. 72 of the Pengurusan Danaharta Nasional Berhad
Act, which ousted jurisdiction to grant the injunction sought,
was constitutional under Art. 8(1) which provided for equality
before the law and entitlement to equal protection of the law.
Doctrine of the rule of law forms part of the common law
demands of minimum standards of substantive and procedural
fairness. Access to justice is part and parcel of the common
law. And since the expression law in Art. 8(1) includes the
common law, access to justice is an integral part of it.
Danaharta Urus Sdn Bhd, v. Kekatong Sdn Bhd (2004)
23

HELD: s. 72 was constitutional. Law in Art. 8(1) is in so far

as it is in operation in the Federation, and hence only to
those that was already brought it. s. 3(1) of that Civil Law Act
has modified the right of access to justice for Art. 8(1).

Other countries.
o Taylor v. New Zealand Poultry Board (1984) held deep rights that the
Parliament cannot override. Is this a judicial usurpation of power? Or that
theres a substantive content to the rights.

ENFORCEMENT: MECHANISMS OF REVIEW

Our constitution lacks a provision conferring a right to apply to the court to

enforce fundamental liberties insertion was recommended by the
Constitutional Commission 1966.
o But this has not stopped the courts from hearing applications for habeas
corpus or other remedies in relation to infringements of fundamental
rights.
Recent trend has been for the executive to label certain matters non-justiciable
and attempt to oust the judicial role in safeguarding certain fundamental rights.
o A de-emphasis on judicial protection < political institutions as guardians.

Thio Li-ann, Lex Rex or Rex Lex? Competing Conceptions of the Rule of Law
in Singapore (2002)

In Chng Suan Tze v. Minister of Home Affairs, the court rejected the subjective
test precluding judicial review of ministerial statutory discretion, and declared
that the notion of a subjective or unfettered discretion is contrary to the Rule of
Law. All power has legal limits and the Rule of Law demands that the courts
should be able to examine the exercise of discretionary power.
However, Singapore still retains an array of laws allowing curtailment of
individual liberties without judicial redress so as to serve the imperative of the
broadly defined idea of public order.
o The move towards non-legal or bureaucratic control.
o Effectively concentrates unchecked power in executive hand.
o Felt need to provide a substitute check, now wielded by non-legal forms of
control and political bodies like the EP or advisory councils (composed on
bureaucrats, religious and civic society leaders) but are there checks
sufficiently muscular?
MRHA allows the Minister to issue pre-emptive restraining orders, curtailing
both freedom of expression and freedom of religious rights.
o Judicial review precluded because religious harmony issues considered
non-justiciable and in the apt province of the Executive because it is
crucial for our survival as a nation as a secular court deciding on
religious disputes would be explosive.
o Need for check provided by empowering EP under Art. 22I to refuse to
confirm or cancel a restraining order.
But only activated where the recommendations of the President
Council of Religious Harmony contradicted the Cabinets advice.
24

ISA allows detention without trial of persons suspected of acting in a manner

prejudicial to Singapores security.
o Renewed every 2 years, 23 years of alleged communist insurgent Chia
Thye Poh.
o Often criticised, especially in the 1987 Marxist conspiracy, but also lauded
in the 2001 Jemmah Islamiah event.
Although government not constitutionally obliged to, took steps to
supply information on the arrest, held public meetings to engage
parties in dialogues and appear supportive to the detainees
families.
Seems like it was a gentler approach to appease majority-minority
tension.
o A blatant negation of the Rule of Law as it mandates punishment
through deprivation of liberty without a judicial determination that it is
merited.
Under the ISA, Advisory board (a Supreme Court judge, all appointed
by the President in consultation with the CJ) hence some judicial
element, but still not a good substitute for judicial review
(application of evidentiary and criminal procedure standards and
natural justice rules).
Promotes a regime of de facto executive supremacy and exercise of
powers independent of formal legal control.

25

PROTECTION OF LIFE AND LIBERTY

INTRODUCTION
Article 9
Liberty of the person
Art. 9(1): No person shall be deprived of his life or personal liberty save in accordance
with law.
Arts. 9(2), (3) and (4): Specific rights of the accused person.
Arts. 9(5) and (6): Limits on the rights.

The right to life is a fundamental liberty, regarded as a supreme right.

o No person shall be deprived is a negative restriction, rather than the
arguably weaker positive declaration of rights (c.f. Art. 15, freedom of
religion).
Interpretation definitional issues.
o Words are open-textured in nature hence allows considerable scope for
judicial creativity.
Literalist/strict textualist approach (redolent of influence of legal
positivism) vs. liberal/rights-oriented approach (judges has recourse
beyond black letter rules to extra-legal or unwritten natural law
principles.
o Who should decide? Courts or parliament? Who is the best arbiter? Refer
to bottom.

THE MEANING OF PERSON

To whom does Art. 9(1) apply?

Not defined in the Singapore Constitution.
o C.f. Art. 2, s. 12, Philippines Constitution: The State shall equally protect
the life of the mother and the life of the unborn from conception.
o C.f. Art, 4(1), American Convention on Human Rights: right to have his
life respected. This right shall be protected by law from the moment of
conception.
o C.f. Convention of the Rights of the Child: appropriate legal protection
before as well as after birth.
Where are the limits of Art. 9(1)? When does the right to life start?
o Controversial issues and questions best decided by the courts or by
Parliament?
Parliament better suited in facilitating such discussions, especially
when there is little judicial consensus in such matters, and with
shifting moral consensus on a societal values, legal intervention
may be inappropriate.

THE MEANING OF LIFE

26

Affects the content of the right to life.

o Normative underpinning why do we value human life?
o Narrow conception (physical existence) vs. broader conception (taking into
account qualify of life).
o Broader conception takes into account quality of life.
Interpreting life courts have adopted a broader approach.
o Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan (1996)
Dismissal of a public servant.
HELD: Malaysian Court of Appeal adopted a very expansive
interpretation of life. It does not refer to the mere existence but
incorporates all those facets that are an integral part of life itself
and those matters which go to form the quality of life including
right to seek and be engaged in lawful and gainful employment,
right to live reasonably healthy and in a pollution-free environment.
What does it mean in the local context?
o Can it be used to argue for a right to livelihood/housing?
o Can we use Art. 9 to argue that Prevention of Pregnancy Act is
unconstitutional?

THE MEANING OF PERSONAL LIBERTY

Interpreting personal liberty both Malaysian and Singapore courts have

adopted a restrictive interpretation.
o Government of Malaysia & Ors v. Loh Wai Kong (1979)
HELD: Does not include the right to leave the country, to travel
overseas and a right to a passport. Court held that the right is of
personal liberty and not liberty simpliciter, in the sense that it
relates to and concerns the person or the body of the individual (i.e.
physical restraint of coercion).
C.f. Maneka Gandhi v. Union of India (1978)
HELD: Court held that protection of personal liberty included
the right to travel abroad. Expression personal liberty is of
the widest amplitude and covers a variety and bundle of
incidental rights.
o Sugumar Balakrishnan v. Pengarah Imigresen Negeri Sabah (1998)
HELD: Includes liberty to go to court and seek relief, including
judicial review of administrative action. Personal liberty is a dynamic
concept and should be given the widest amplitude and expanded
meaning. Any other approach will produce an incongruous and
absurd result.
o Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan (2002) rejecting
the previous case.
HELD: Personal liberty should be interpreted as per Loh Wai Kong.
o Ooi Kean Thong & Anor v. Public Prosecutor (2006)
HELD: Does not include the right to hug and kiss someone as an
expression of love in a public park.
o Lo Pui Sang v. Mamata Kapildev Dave & Ors (2008)
27

Whether personal right to contract is eroded by the en-bloc rules,

where he is forced to sign the contract when the requisite 80%
majority is reached.
HELD: Does not include personal liberty to contract, it is traditionally
understood to refer only to the personal liberty of the person against
unlawful incarceration or detention. The LTSA is law within in
accordance with law and hence Parliament can legitimately permit
such deprivation.

THE MEANING OF IN ACCORDANCE WITH LAW

Interpreting in accordance with law, a limit placed on the right in Art. 9(1).
o E.g. imprisonment, death penalty are such limits.
Textual approach.
o Art. 2 read with s. 2, Interpretation Act.
Art. 2: Law includes written law, any legislation of the UK or any
enactment or instrument whatsoever which is in operation in
Singapore, and the common law insofar as it is in operation in
Singapore and any custom or usage having the force of law in
Singapore.
s. 2, Interpretation Act: Written law means the Constitution and
enactments by whatever name called for the time being in force in
Singapore.
o A clear positivist definition, but the text does not rule out a more robust
interpretation includes indicates that the text is not exhaustive.
Are there any limits to these limits?
o 3 possible interpretations of the word law.
Formal conception of the law enactment.
Law includes notions of procedural justice accepted in
Singapore.
Note: Conceptual difference between rules of natural justice
here in Ong Ah Chuan, and rules of natural justice in
administrative law former operates at the constitutional level
in relation to the validity of legislation, whereas the latter
operates at an executive level in relation to the validity of the
administrative decisions (but they contain the same rules!)
Former has status of constitutional rules, and can only be
abrogated by constitutional amendment under Art. 5, whereas
latter can be abrogated by ordinary legislation.
Law includes substantive theories of law e.g. fairness.
Courts seem willing to consider substantive theories of
fairness.
In Nguyen Tuong Van v. PP (2005), the Court of Appeal
indicated some consideration of a substantive conception of
law, some normative values where the common law of
Singapore has to be developed by our Judiciary for the
common good.
28

Courts in Nguyen Tuong Van v. PP (2005) and Yong Vui Kong v.

Public Prosecutor also indicated a shift in openness towards
international law norms (i.e. CIL). (Refer to top at Customary
International Law Before Domestic Courts).
Judicial approach how have the courts interpreted?
o Arumugam Pillai v. Government of Malaysia (1975) previously positivist
view = enactment in due form.
HELD: When the Constitution speaks of law, it speaks of the will of
the legislature enacted in due form, provided that such enactment is
within the competence of the legislature.
o Ong Ah Chuan v. Public Prosecutor (1981) includes fundamental rules of
natural justice.
Appeal to the Privy Council on the constitutional validity of s. 15,
Misuse of Drugs Act, the statutory presumption of trafficking.
HELD: Court rejected PPs narrow view of Art. 9(1) and Art. 12(1). In
a Westminster model constitution, references to law refer to a
system of law which incorporates those fundamental rules of
natural justice that had formed part and parcel of the common law
of England that was in operation in Singapore at the
commencement of the Constitution e.g. no person may be
punished for an offence unless his guilt is established before an
impartial tribunal.
o Haw Tua Tau v. Public Prosecutor (1981) elaboration of fundamental rules
of natural justice.
Constitutionality of legislative amendments to the Criminal
Procedure Code whether courts can draw adverse inferences from
the accuseds silence.
HELD: Imprudent for Privy Council to make a comprehensive list of
what constitute fundamental rules of natural justice applicable to
procedure for determining the guilt of a person charged with a
criminal offence, only that it should not be obviously unfair.
Right against self-incrimination is not part of the rules of natural
justice.
o Public Prosecutor v. Mazlan bin Maidun & Anor (1993) retreat from Ong
Ah Chuan.
While extracting statement, police did not inform accused that he
was entitled to refrain from self-incrimination.
HELD: Although law in Art. 9(1) includes the principles of natural
justice, the right of silence has never been regarded as one it is
only an evidential rule that was not given explicit expression in the
Constitution; elevating it would require an adventurous
extrapolation of Art. 9(1) hence, a strict textualist approach and
judicial restraint against elevation of Art. 9(1).
CRITICISM: Evidential rule can be an expression of a principle
of natural justice?

29

CRITICISM: Stifles the prospect of developing constitutional

jurisprudence
with
such
strict
formalistic
constitutional
interpretation.
Also, inconsistent with Ong Ah Chuan courts are the
guardian of fundamental liberties. And inconsistent with Haw
Tua Tau courts must weigh the practice in light of the whole
judicial process, taking into account its effect on the accused
person (we have adversarial system, hence we need clear
evidential rules).
o Jabar bin Kadermastan v. Public Prosecutor (1995) distinguished in Yong
Vui Kong (its about the constitutionality of the period of time lapsed, but
not constitutionality of the mandatory death penalty per se).
HELD: Being held on death row for prolonged period of 5 years and
6 months was not an independent infringement of Ps constitutional
rights. In Singapore, the death penalty is mandatory; anguish and
mental agony is an inevitable consequence.
So long as it is passed by Parliament formalistic receding
back to Arumugam.
CRITICISM: Formalism, positivism and parliamentary deference
obscures constitutional analysis.
o Public Prosecutor v. Nguyen Tuong Van (2004) (High Court), Nguyen Tuong
Van v. Public Prosecutor (2005) (Court of Appeal) reassertion of role of
judicial review.
HELD: Court expressed qualifications about Jabar, and elected to
follow Ong Ah Chuan in accordance with law under Art. 9(1)
connotes more than just Parliament-sanctioned legislation
(a natural law theory), but is a system of law incorporating
fundamental principles of natural justice.
Death by hanging is not cruel and inhuman punishment that would
violate the meaning of law under Art. 9. The mandatory death
sentence prescribed under the MDA is sufficiently discriminating to
obviate any inhumanity in its operation.
Furthermore, Art. 5, UDHR is not a settled view and is not yet a CIL.
In the Court of Appeal, it held that it was wrong to decide the issue
on constitutionality of a differentiating trait on a blind acceptance
of legislative fiat and it was the judicial duty to ascertain the
proper weight that ought to be ascribed to the views of parliament
encapsulated in the impugned legislation. Court appeared willing to
review constitutionality of the MDP but counsel did not adduce
evidence with sufficient legislative history (c.f. Lau Cheong v. HK
SAR).
o Yong Vui Kong v. Public Prosecutor (2010)
HELD: Mandatory death penalty does not violate the meaning of
law under Art. 9.
[1] Parliament had legislatively rejected a proposed Art 13 by the
1966 Wee Commission and hence there cannot be an implied
prohibition against inhumane punishment because it would

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legislate a new constitutional right rejected by the government

under the guise of constitutional interpretation.
Note: Little known legal fact that the ECHR formerly applied
in Singapore and Malaysia from the declaration in 1953 to
Singapore joining the Malaysian Federation in 1963. Malaysian
constitutional drafter intentionally omitted these clauses is the
intention that inhumane punishment be excluded from Art.
9(1).
[2] Furthermore, although law in Art. 9(1) liberally includes CIL,
but because domestic law > CIL, CIL has to be incorporated into
domestic law if it is consistent with domestic statutes etc before
being applicable as part of common law. Even then, accepted
common law still < statute law.
Even so, questionable if inhumane punishment such as the
mandatory death penalty is an accepted CIL.

IN ACCORDANCE WITH LAW AND THE RIGHT TO A FAIR TRIAL

In Public Prosecutor v. Choo Chuan Wang (1992), court noted that the Malaysian
Art. 5(1) does imply the right to a fair hearing within a reasonable time by an
impartial Court established by law.
o Case was quoted with approval in Shamim Reza bin Abdul Samad v. Public
Prosecutor (2009) which highlighted that the right to a fair trial is a
constitutionally
guaranteed
right.
Hence,
incompetent
counsel
occasioning in a miscarriage of justice may allow for the quashing of a
conviction.

PROCEDURAL AND SUBSTANTIVE ASPECTS OF A FAIR TRIAL

Reading Art. 9(1) with Art. 12(1).

Lee Kwan Who v. Public Prosecutor (2009)
o HELD: The rule of law has both procedural and substantive dimensions,
and determination depends on the fact pattern of each case. But for a
criminal case, it means that the accused has a constitutionally guaranteed
right to receive a fair trial by an impartial tribunal and to have a just
decision on those facts.
o Trial court must at the close of the prosecution case, invite submissions
from the accused, and that he and she must be heard.

DEATH PENALTY AND LIFE IMPRISONMENT

Whether imposition of a mandatory death sentence offends Art. 9(1) on the

grounds that it infringes the fundamental rules of natural justice that are
incorporated.
o Death penalty prescribed in s. 302, Penal Code for murder, Misuse of
Drugs Act for trafficking above a certain amount, and s. 3(1), Terrorism
(Suppression of Bombings) Act for terrorist bombing.
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o Arguments that mandatory death sentence amounted to arbitrary

punishment.
Public Prosecutor v. Lau Kee Hoo (1983)
Public Prosecutor v. Yee Kim Seng (1983)
Che Ani bin Itam v. Public Prosecutor (1984)
Public Prosecutor v. Nguyen Tuong Van (2004) (High Court)
Nguyen Tuong Van v. Public Prosecutor (2004) (Court of Appeal)
o D argued only that the mandatory death sentence amounted to arbitrary
punishment, but did not argue that it was deprivation of life not in
accordance with law.

INTERPRETING ARTICLE 9(3)

Where a person is arrested he shall be informed as soon as may be of the

grounds of his arrest and shall be allowed to consult and be defended by a legal
practioners of his choice
o Interpreting informed as soon as may be
Aminah v. Superintendent of Prison, Pengkalan Chapa, Kelantan
HELD: It is as merely as is reasonable in the circumstances of
the particular case.
Nik Adli bin Nik Abdul Aziz v. Ketua Polis Negara
HELD: It is the grounds must have already been in existence
when he was arrested.
Rajeevan Edakalavan v. PP
HELD: Art. 9(3) has 2 limbs: [1] a right to consult counsel and
[2] the right to be defended by counsel of his choice. Yong CJ
held that the first part is a negative right, where shall be
allowed means I let you, that shall means that there is no
obligation imposed on the relevant authority since can
choose not to allow to inform and advise the arrested person
of his right to counsel. There is therefore no constitutional
right to be informed.
o Interpreting allowed to consult and be defended by legal practioners of
his choice.
Ooi Ah Phua
HELD: Right accrues from the day of arrest. But the law also
requires the police to carry out investigations and the right of
the arrested person should be subject to such legitimate
requirement (Where?). It cannot be exercised immediately.
Balance needs to be struck between right of accused person
to consult his lawyer and the duty of the police to protect the
public from wrongdoers. Interest of justice is just as important
as the interest of arrested person.
Hashim bin Saud v. Yahya bin Hashim & Anor
HELD: Cannot be exercised if it impedes police investigation or
the administration of justice.
Jasbir Singh v. PP
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HELD: Within a reasonable time and held that 2 weeks delay

was reasonable.
o Interpreting allowed to consult and be defended
Tan Chor Jin v. PP
Accused kept refusing counsel despite being asked by the
judge but changed his mind after all witnesses have been
examined and submissions closed.
HELD: Denial of counsel in certain circumstances does not
amount to violation of constitutional right.
Balasundaram v. PP
Issue was whether there had been a miscarriage of justice if
change of counsel was refused.
HELD: It is not an unqualified right. Accused cannot insist on
getting a particular lawyer to represent him.
Mohamed Ali Abdullar v. PP
HELD: Absence of lawyer did not vitiate trial. There was no
miscarriage of justice as the judge has proceeded very
carefully in the absence of counsel.

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