Article 9 of the Constitution of Singapore
Encyclopedia
Article 9 of the Constitution of the Republic of Singapore, specifically Article 9(1), guarantees the right to life
and the right to personal liberty. The Court of Appeal
has called the right to life the most basic of human rights, but has yet to fully define the term in the Constitution
. Contrary to the broad position taken in jurisdictions such as Malaysia and the United States, the High Court
of Singapore
has said that personal liberty only refers to freedom from unlawful incarceration or detention.
Article 9(1) states that persons may be deprived of life or personal liberty "in accordance with law". In Ong Ah Chuan v. Public Prosecutor (1980), an appeal to the Judicial Committee of the Privy Council
from Singapore, it was held that the term law means more than just legislation validly enacted by Parliament
, and includes fundamental rules of natural justice
. Subsequently, in Yong Vui Kong v. Attorney-General (2011), the Court of Appeal held that such fundamental rules of natural justice embodied in the Constitution are the same in nature and function as common law
rules of natural justice in administrative law, except that they operate at different levels of the legal order. A related decision, Yong Vui Kong v. Public Prosecutor
(2010), apparently rejected the contention that Article 9(1) entitles courts to examine the substantive fairness of legislation, though it asserted a judicial discretion to reject bills of attainder
and absurd or arbitrary legislation. In the same case, the Court of Appeal held that law in Article 9(1) does not include rules of customary international law
.
Other subsections of Article 9 enshrine rights accorded to persons who have been arrested, namely, the right to apply to the High Court to challenge the legality of their detention, the right to be informed of the grounds of arrest, the right to counsel
, and the right to be produced before a magistrate within 48 hours of arrest. These rights do not apply to enemy alien
s or to persons arrested for contempt of Parliament. The Constitution also specifically exempts the Criminal Law (Temporary Provisions) Act , the Internal Security Act
, and Part IV of the Misuse of Drugs Act
from having to comply with Article 9.
guarantees to all persons the right to life
and right to personal liberty. It states:
Article 9(1) embodies the concept of the rule of law
, an early expression of which was the 39th article of the Magna Carta
of 1215: "No freeman shall be taken captive or imprisoned, or deprived of his lands, or outlawed, or exiled, or in any way destroyed, nor will we go with force against him nor send forces against him, except by the lawful judgment of his peers or by the law of the land
." Article 9(1) is similar, but by no means identical, to the Due Process Clause of the Fourteenth Amendment to the United States Constitution
which prohibits any state from denying "any person of life, liberty, or property, without due process
of law", and to Article 21 of the Constitution of India
which states: "No person shall be deprived of his life or personal liberty except according to procedure established by law." Article 5(1) of the Constitution of Malaysia
and Singapore's Article 9(1) are worded the same way as the latter was adopted in 1965 from the former following Singapore's independence from Malaysia.
(2010), the Court of Appeal of Singapore
called the right to life
"the most basic of human rights". However, the courts have not yet had the opportunity to define the term life in Article 9(1).
Jurisdictions such as India, Malaysia and the United States interpret the same term in their respective constitutions broadly. In the United States Supreme Court
case Munn v. Illinois
(1877), Justice Stephen Johnson Field
stated that the term life means more than mere animal existence. Rather, the definition extends to all those limbs and faculties by which life is enjoyed. His rationale was that the term should not be "construed in any narrow or restricted sense". Indian courts have likewise adopted a broad interpretation of life in Article 21 of the Indian Constitution to mean more than mere existence – instead, it includes the right to livelihood and the right to a healthy environment. Subsequently, in Samatha v. State of Andhra Pradesh (1997), the meaning of life was expanded to include the right to live with human dignity; and to the provision of minimum sustenance, shelter, and those other rights and aspects of life that make life meaningful and worth living. Similarly, Justice Prafullachandra Natwarlal Bhagwati
held in Bandhua Mukti Morcha v. Union of India (1984) that the expression life included the right to be free from exploitation, and to the basic essentials of life included in the Directive Principles of State Policy
that appear in the Indian Constitution.
In the Malaysian case Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan
(1996), the appellant had appealed against his wrongful dismissal
from employment on the grounds of procedural unfairness. One of the issues brought up was whether an unfair procedure meant that he had been deprived of his constitutional right to life or liberty protected by Article 5(1) of the Malaysian Constitution, which is identical to Singapore's Article 9(1). Judge of the Court of Appeal Gopal Sri Ram held that the courts should take into consideration the unique characteristics and situation of the country, and must not be blind to the realities of life. He went on to suggest that a liberal approach be adopted to grasp the intention of the framers of the Constitution by giving life a broad and liberal meaning. He opined that such an interpretation would include elements that form the quality of life, namely the right to seek and be engaged in lawful and gainful employment, and the right to live in a reasonably healthy and pollution-free environment. He also noted that life cannot be extinguished or taken away except according to procedure established by law.
The Yong Vui Kong case suggests that Singapore courts may interpret the word life more narrowly than the Indian and Malaysian courts when called upon to do so. The Court of Appeal stated that the scope of Article 21 of the Indian Constitution had been expanded by the Indian courts to include "numerous rights relating to life, such as the right to education, the right to health and medical care and the right to freedom from noise pollution", attributing this to the "pro-active approach of the Indian Supreme Court in matters relating to the social and economic conditions of the people of India". The Court declined to apply Mithu v. State of Punjab, in which the mandatory death penalty had been found unconstitutional, stating it was "not possible" to interpret Singapore's Article 9(1) in the way that the Indian Supreme Court had interpreted Article 21 of the Indian Constitution.
held that personal liberty only refers to freedom from unlawful incarceration or detention, and does not include a liberty to contract. Although it was suggested this had always been the understanding of the term, no authority was cited.
The approach taken in Lo Pui Sang can be compared to the more liberal interpretation of liberty in the United States and Malaysia. In the US Supreme Court case of Allgeyer v. Louisiana
(1897), where a Louisiana statute was struck down on the ground that it violated an individual's right to contract, it was held that liberty in the Fourteenth Amendment of the Constitution meant not only the right of the citizen to be free from any physical restraint of his person, but also the right to freely enjoy all his faculties – that is, to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts that may be proper, necessary, and essential to his carrying out those purposes. Liberty was accorded the same broad reading in the subsequent case Meyer v. Nebraska
(1923), in which the Supreme Court held that a state statute mandating that English be the only language used in schools was unconstitutional as it infringed on the liberty guaranteed by the Fourteenth Amendment. The Court stated that liberty
It was held in the Malaysian Court of Appeal case of Sugumar Balakrishnan v. Pengarah Imigresen Negeri Sabah (1998) that the term life in Article 5(1) of the Constitution is not limited to mere existence, but is a wide concept that must receive a broad and liberal interpretation. Likewise, personal liberty should be similarly interpreted, as any other approach to construction will necessarily produce an incongruous and absurd result. On the facts, personal liberty extended to the liberty of an aggrieved person to go to court and seek judicial review, and thus a statutory provision that sought to oust the power of judicial review was apparently inconsistent with this fundamental liberty. However, the apparent inconsistency could be resolved by permitting an ouster clause to immunize from judicial review only those administrative acts and decisions that are not infected by an error of law. Although the Federal Court
reversed the Court of Appeal on this point, in the subsequent case Lee Kwan Woh v. Public Prosecutor
(2009) the Federal Court held that the provisions of the Constitution should be interpreted "generously and liberally", and that "on no account should a literal construction be placed on its language, particularly upon those provisions that guarantee to individuals the protection of fundamental rights". In its view:
The Federal Court went on to state that personal liberty "includes other rights" such as the right to "cross the frontiers in order to enter or leave the country when one so desires".
It has been suggested that since Article 9(1) of the Singapore Constitution is pitched at a high level of generality, there is no limitation in the ordinary natural meaning of the phrase. Thus, there is no requirement in the Constitution for personal liberty to be construed narrowly to mean only freedom from physical restraint.
principles), the scope of the fundamental liberties would be wider. It would be narrower if, on the other hand, law is construed narrowly, as the Legislature would be able to curtail such rights through legislation more easily. This could lead to a watering-down of the emphasis on fundamental liberties, as any infringement might be considered legitimate so long as the statute in question was validly enacted.
In the Malaysian case Arumugam Pillai v. Government of Malaysia (1976), the Federal Court
construed the phrase save in accordance with law in Article 13(1) of the Constitution of Malaysia
restrictively. This provision states: "No person shall be deprived of property save in accordance with law." The Court held that all that was required for the legislation in question to be constitutional was for it to have been validly passed by Parliament. Hence, the validity of any duly enacted piece of legislation could not be questioned on grounds of reasonableness, no matter how arbitrary the law appeared to be.
However, in 1980 the Privy Council
rejected this interpretation in the case of Ong Ah Chuan v. Public Prosecutor, a decision on appeal from Singapore. This appeal questioned the constitutional validity of section 15 of the Misuse of Drugs Act
, and one of the issues that had to be decided was the interpretation of the word law in Article 9(1). The Public Prosecutor contended that law should be given a narrow meaning. He argued that
However, the Public Prosecutor qualified the statement by providing a limitation, namely, that "the arbitrariness, the disregard of fundamental rules of natural justice for which the Act provides, must be of general application to all citizens of Singapore so as to avoid falling foul of the anti-discriminatory provisions of Art 12(1)
".
In a judgment delivered by Lord Diplock, the Privy Council rejected this interpretation, finding the Public Prosecutor's argument fallacious. Reading the definition of written law as stated in Article 2(1) together with Article 4, which provides that "any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void", their Lordships held that "the use of the expression 'law' in Art 9(1) ... does not, in the event of challenge, relieve the court of its duty to determine whether the provisions of an Act of Parliament passed after 16 September 1963 and relied upon to justify depriving a person of his life or liberty are inconsistent with the Constitution and consequently void".
In line with their view that Part IV of the Constitution should be given "a generous interpretation ... suitable to give to individuals the full measure of the
[fundamental liberties] referred to", their Lordships held that "references to 'law' in such contexts as 'in accordance with law', 'equality before the law', 'protection of the law' and the like ... 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". This conception of the meaning of law in Article 9(1) has been affirmed by the Court of Appeal
in Nguyen Tuong Van v. Public Prosecutor (2005) and Yong Vui Kong v. Public Prosecutor (2010).
It has been highlighted that this elevation of principles of natural justice to constitutional status, with the implication that they may override local statutes due to the supremacy of the Constitution over them, creates some tension with Article 38 which vests the law-making power of Singapore in the legislature.
In Ong Ah Chuan and the subsequent decision Haw Tua Tau v. Public Prosecutor (1981), the Privy Council declined to set out a comprehensive list of fundamental rules of natural justice
and merely stated some principles to deal with the issues at hand. At a 2000 conference, the Attorney-General
Chan Sek Keong
, who became Chief Justice
in 2006, remarked that this gives the Court of Appeal a free hand to determine the scope of the fundamental rules of natural justice unencumbered by precedent
.
Guidance as to the scope of fundamental rules of natural justice was provided in Haw Tua Tau. First, the Privy Council said that rules of natural justice are not stagnant and may change with the times. Secondly, they should be considered in the local context, in light of the entire system as a whole and from the perspective of the people operating the system. Further, in order to satisfy the rules of natural justice, the law in question should not be "obviously unfair". In its view, under a system of justice in which the court is invested with partly inquisitorial
functions, compelling an accused to answer questions put to him by a judge cannot be regarded as contrary to natural justice. The Court of Appeal later ruled in Public Prosecutor v. Mazlan bin Maidun (1992) that the privilege
against self-incrimination
was not a fundamental rule of natural justice, and thus not a constitutional right.
In Yong Vui Kong v. Attorney-General (2011), the Court of Appeal stated that fundamental rules of natural justice embodied in the concept of law in constitutional provisions such as Articles 9(1) and 12(1) are the same in nature and function as common law
rules of natural justice in administrative law, except that they operate at different levels of the legal order. The former invalidate legislation on the ground of unconstitutionality and can only be altered by amending the Constitution, while the latter invalidate administrative decisions on the ground of administrative law principles and can be abrogated or disapplied by ordinary legislation.
Traditionally, at common law natural justice is taken to be a procedural concept that embodies the twin pillars of audi alteram partem
(hear the other party) and nemo iudex in causa sua (no one should be a judge in his or her own cause). In the United States, due process
has both procedural and substantive components. Substantive due process
involves the courts assessing the reasonableness of executive actions and legislation using rational basis review
if a fundamental right is not implicated and strict scrutiny
if it is. The question thus arises whether substantive fundamental rules of natural justice may be developed by local courts. However, a line of Malaysian cases has expressed the view that the concept of substantive due process is not applicable to Article 5(1) of the Malaysian Constitution, which is identical to Singapore's Article 9(1). There is also academic commentary that rejects the notion of "substantive natural justice", arguing that it is too vague and leads to problems in application. Another argument against substantive natural justice is the fear that it may become an avenue for judges to invalidate laws on the basis of their own subjective opinions, leading to unbounded judicial activism
.
On the other hand, it has also been suggested that substantive natural justice would merely be a full exercise of the judiciary's proper role as conferred by the Constitution. In addition, one scholar has asserted that there is no doubt that a judicial inquiry covers both substantive and procedural aspects. It is said that Article 9(1) connotes a judicial inquiry into the "fairness" of the law tested against certain principles regarded as fundamental to the legal system. Distinguishing between substantive and procedural fairness is a meaningless exercise, as it merely clouds the process of judicial inquiry. Judicial review is judicial review under whatever name, and as far as Article 9(1) is concerned, there is no room for making this distinction.
However, in Yong Vui Kong v. Public Prosecutor (2010) the Court of Appeal appeared to reject such an approach by declining to require that procedural laws must be "fair, just and reasonable" before they can be regarded as law for the purpose of Article 9(1). It noted that the provision neither contains such a qualification, nor can such a qualification be implied from its context or wording. The Court considered it "too vague a test of constitutionality" and said: "Such a test hinges on the court’s view of the reasonableness of the law in question, and requires the court to intrude into the legislative sphere of Parliament as well as engage in policy making." On the other hand, the Court acknowledged that Article 9(1) does not justify all legislation whatever its nature. It held, obiter
, that law might not encompass colourable legislation (that is, bills of attainder
– legislation purporting to be of general application but in fact directed at securing the conviction of particular individuals), or legislation "of so absurd or arbitrary a nature that it could not possibly have been contemplated by our constitutional framers as being 'law' when they crafted the constitutional provisions protecting fundamental liberties".
In Nguyen Tuong Van v. Public Prosecutor (2004), the Court of Appeal considered whether law in Article 9(1) includes principles of customary international law
. In that case, the appellant argued that effecting a death sentence for drug trafficking by hanging
is unconstitutional as a form of cruel and inhuman punishment
not "in accordance with law". The Court agreed that there was a prohibition against torture
and cruel and inhumane treatment in Article 5 of the Universal Declaration of Human Rights
and that this is considered customary international law. However, a customary international law rule had to be "clearly and firmly established" before it was adopted by the courts, and there was insufficient practice among states to hold that death by hanging was within the ambit of this prohibition. Also, even if there was a customary international law rule against death by hanging, domestic statutes would prevail in the event of conflict.
The Court of Appeal clarified in Yong Vui Kong v. Public Prosecutor (2010), that customary international law cannot be read into Constitution for two reasons. First, in order for a customary international law rule to have legal effect in Singapore, it has to be incorporated into domestic law
. The incorporation can occur either by enactment in a statute or by a court declaration that the rule forms part of the common law. The Court felt it would be incorrect to incorporate customary international law rules into the meaning of law in Article 9(1) as this would cloak the common law with the constitutional status to nullify a statute, thus reversing the usual hierarchy of legal rules. Secondly, the term law is defined in Article 2(1) to include the common law only "in so far as it is in operation in Singapore". However, a court cannot treat rules of customary international law as having been incorporated into Singapore common law if they are inconsistent with existing statutes. Furthermore, if there is a conflict between such a rule and a domestic statute, the latter prevails.
The Constitution is silent as to the reception of international law
in domestic law. In Yong Vui Kong the Court of Appeal accepted that domestic law, including the Constitution, should "as far as possible" be consistently interpreted with Singapore's international obligations. Nonetheless, while international human rights law can increase the normative pool judges may resort to in interpreting the Constitution, there are "inherent limits" such as the express wording of the constitutional text and constitutional history that "[militates] against the incorporation of those international norms".
It has also been argued that although where possible local statutes should be interpreted in light of international treaties, it is not the role of the judiciary to import international law standards into the Constitution that are inconsistent with legislation instead of deferring
to the views of the executive
. According to this view, which hinges on a strict adherence to the separation of powers
doctrine, the judiciary should guard against unwarranted incursions into the executive sphere, as it is for the executive to determine Singapore's attitude and position in relation to foreign affairs. The judiciary must not undertake its task of interpreting the Constitution arbitrarily, but should accord with legal reasoning and sound principles. This necessarily raises the question of what the applicable legal principle during the interpretation process should be. It has been suggested that the executive and the judiciary should show solidarity by speaking with "one voice", and that the courts should exercise deference in favour of what the executive deems to be the nation's attitude towards the particular international law norm that is sought to be applied.
It may be submitted that such judicial deference to the executive results in a clear neglect of the enshrined fundamental liberties in the Constitution. The flip side to this criticism is that fundamental liberties may still be given due accord though other avenues, for example, the application of rules of natural justice. As the meaning accorded to a particular fundamental liberty may be a potential ground for overturning Parliamentary legislation, it is crucial that the court should not merely rely on international law to determine the meaning of the liberty, unless there is evidence that the executive considers there is indeed an adoption of the particular international law norm.
would thus be unconstitutional. This issue has yet to come before the Singapore courts.
In Singapore, the Penal Code
lays out sanctions for non-compliance with the Termination of Pregnancy Act, which limits abortion to patients who have not been pregnant for more than 24 weeks. By not conferring the right to life upon fetuses younger than the stipulated period, the legislation has accorded greater weight to the safety and security of expectant mothers who are threatened by their unborn children. This is in contrast with the approach taken in the Philippines, where the Constitution
provides that the state shall equally protect the life of the mother and the life of the unborn from conception. Similarly, the Charter of Fundamental Rights and Basic Freedoms
of the Czech Republic states that human life deserves to be protected before birth. It is notable that these jurisdictions have a predominantly Catholic majority
, which is staunchly pro-life. Chances of a universal consensus on this issue are slim due to the difficulty in defining the beginning of life.
, and abetment of suicide and attempted suicide are criminal acts. This applies to physicians who aid patients in ending their lives. Such physicians are unable to claim a defence under section 88 of the Penal Code since they intended to cause the patients' deaths. However, physicians are absolved of liability if patients refuse treatment for terminal illness
es by issuing advance medical directives.
Whether the right to life guaranteed by Article 9(1) encompasses a right to die
– that is, a right to commit suicide or a right to assisted suicide
, usually in the face of a terminal illness – has not been the subject of any Singapore court case. In other jurisdictions, the right to life
has generally not been interpreted in this way. In Gian Kaur v. State of Punjab (1996) the Indian Supreme Court held that the right to life is a natural right embodied in Article 21 of the Indian Constitution, and since suicide is an unnatural termination or extinction of life it is incompatible and inconsistent with the concept of the right to life. The US Supreme Court has also declined to recognize that choosing death is a right protected by the Constitution
. In Washington v. Glucksberg
(1997), a group of Washington residents asserted that a state law banning assisted suicide was unconstitutional on its face. The majority held that as assisted suicide is not a fundamental liberty interest, it was not protected under the due process
clause of the Fourteenth Amendment. Several of the justices seemed persuaded that the availability of palliative care
to "alleviate suffering, even to the point of causing unconsciousness and hastening death" outweighed recognizing a new unenumerated
"right to commit suicide which itself includes a right to assistance in doing so".
of habeas corpus
. The Court is required to inquire into the complaint, and order the detainee to be produced before the Court and released unless it is satisfied that the detention is lawful.
Article 9(3) requires that an arrested person be informed "as soon as may be" of the grounds of his arrest. Article 9(4) goes on to provide that if the arrested person is not released he must, without unreasonable delay, and in any case within 48 hours (excluding the time of any necessary journey) be produced before a magistrate and cannot be further detained in custody without the authority of the magistrate. The person's attendance before the magistrate may be in person or by way of video-conferencing
or other similar technology in accordance with law.
Article 9(3) also states that an arrested person must be allowed to consult and be defended by a legal practitioner
of his choice.
s or to persons arrested for contempt of Parliament pursuant to a warrant
issued by the Speaker
.
,
from being invalid because of inconsistency with Articles 9(3) and (4). This provision took effect on 10 March 1978 but was expressed to apply to laws in force prior to that date. Introduced by the Constitution (Amendment) Act 1978, the provision immunizes the Criminal Law (Temporary Provisions) Act and Part IV of the Misuse of Drugs Act from unconstitutionality.
Preventive detention
is the use of executive power to detain individuals on the basis that they are predicted to commit future crimes that will threaten national interest. Among other things, the Criminal Law (Temporary Provisions) Act empowers the Minister for Home Affairs
, if satisfied that a person has been associated with activities of a criminal nature, to order that he or she be detained for a period not exceeding 12 months if the Minister is of the view that the detention is necessary in the interests of public safety, peace and good order.
Under the Misuse of Drugs Act, the Director of the Central Narcotics Bureau
may order drug addicts to undergo drug treatment or rehabilitation at an approved institution for renewable six-month periods up to a maximum of three years.
("ISA") gives the Minister for Home Affairs the power to detain a person without trial for any period not exceeding two years on the precondition that the President
is: "satisfied ... that ... it is necessary to do so ... with a view to preventing that person from acting in any manner prejudicial to the security of Singapore ... or to the maintenance of public order or essential services therein". The period of detention may be renewed by the President indefinitely for periods not exceeding two years at a time as long as the grounds for detention continue to exist.
The ISA has its constitutional basis in Article 149 of the Constitution, which sanctions preventive detention and allows for laws passed by the legislature against subversion
to override the Articles protecting the personal liberties of the individual. Specifically, Article 149(1) declares such legislation to be valid notwithstanding any inconsistency with five of the fundamental liberty provisions in the Constitution, including Article 9. Thus, detentions under the ISA cannot be challenged on the basis of deprivation of these rights.
Right to life
Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...
and the right to personal liberty. The Court of Appeal
Court of Appeal of Singapore
The Court of Appeal of the Republic of Singapore is the nation's highest court and its court of final appeal. It is the upper division of the Supreme Court of Singapore, the lower being the High Court. The Court of Appeal consists of the Chief Justice of Singapore, who is the President of the...
has called the right to life the most basic of human rights, but has yet to fully define the term in the Constitution
Constitution of Singapore
The Constitution of Singapore is the supreme law of Singapore and it is a codified constitution.The constitution cannot be amended without the support of more than two-thirds of the members of parliament on the second and third readings . The president may seek opinion on constitutional issues...
. Contrary to the broad position taken in jurisdictions such as Malaysia and the United States, the High Court
High Court of Singapore
The High Court of the Republic of Singapore is the lower division of the Supreme Court of Singapore, the upper being the Court of Appeal. It consists of the Chief Justice of Singapore and the Judges of the High Court. Judicial Commissioners are often appointed to assist with the Court's caseload...
of Singapore
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
has said that personal liberty only refers to freedom from unlawful incarceration or detention.
Article 9(1) states that persons may be deprived of life or personal liberty "in accordance with law". In Ong Ah Chuan v. Public Prosecutor (1980), an appeal to the Judicial Committee of the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
from Singapore, it was held that the term law means more than just legislation validly enacted by Parliament
Parliament of Singapore
The Parliament of the Republic of Singapore and the President jointly make up the legislature of Singapore. Parliament is unicameral and is made up of Members of Parliament who are elected, as well as Non-constituency Members of Parliament and Nominated Members of Parliament who are appointed...
, and includes fundamental rules of natural justice
Natural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
. Subsequently, in Yong Vui Kong v. Attorney-General (2011), the Court of Appeal held that such fundamental rules of natural justice embodied in the Constitution are the same in nature and function as common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
rules of natural justice in administrative law, except that they operate at different levels of the legal order. A related decision, Yong Vui Kong v. Public Prosecutor
Yong Vui Kong v. Public Prosecutor
Yong Vui Kong v. Public Prosecutor was a seminal case decided in 2010 by the Court of Appeal of Singapore which held that the mandatory death penalty imposed by the for certain drug trafficking offences does not infringe Articles 9 and 12 of the Constitution of Singapore.Article 9 states: "No...
(2010), apparently rejected the contention that Article 9(1) entitles courts to examine the substantive fairness of legislation, though it asserted a judicial discretion to reject bills of attainder
Bill of attainder
A bill of attainder is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a judicial trial.-English law:...
and absurd or arbitrary legislation. In the same case, the Court of Appeal held that law in Article 9(1) does not include rules of customary international law
Customary international law
Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...
.
Other subsections of Article 9 enshrine rights accorded to persons who have been arrested, namely, the right to apply to the High Court to challenge the legality of their detention, the right to be informed of the grounds of arrest, the right to counsel
Right to counsel
Right to counsel is currently generally regarded as a constituent of the right to a fair trial, allowing for the defendant to be assisted by counsel , and if he cannot afford his own lawyer, requiring that the government should appoint one for him/her, or pay his/her legal expenses...
, and the right to be produced before a magistrate within 48 hours of arrest. These rights do not apply to enemy alien
Enemy alien
In law, an enemy alien is a citizen of a country which is in a state of conflict with the land in which he or she is located. Usually, but not always, the countries are in a state of declared war.-United Kingdom:...
s or to persons arrested for contempt of Parliament. The Constitution also specifically exempts the Criminal Law (Temporary Provisions) Act , the Internal Security Act
Internal Security Act (Singapore)
The Internal Security Act of Singapore is a law that allows the Singapore government to investigate security threats like international terrorism, foreign subversion, espionage and acts of violence or hatred using race or religion...
, and Part IV of the Misuse of Drugs Act
Misuse of Drugs Act (Singapore)
The Misuse of Drugs Act is a national drug control law classifying substances into three categories, Classes A, B, and C. Section 44 provides that "The Minister may, by an order published in the Gazette" add, remove, or transfer drugs among the classes...
from having to comply with Article 9.
Text of Article 9
Article 9 of the Constitution of the Republic of SingaporeConstitution of Singapore
The Constitution of Singapore is the supreme law of Singapore and it is a codified constitution.The constitution cannot be amended without the support of more than two-thirds of the members of parliament on the second and third readings . The president may seek opinion on constitutional issues...
guarantees to all persons the right to life
Right to life
Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...
and right to personal liberty. It states:
Article 9(1) embodies the concept of the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
, an early expression of which was the 39th article of the Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
of 1215: "No freeman shall be taken captive or imprisoned, or deprived of his lands, or outlawed, or exiled, or in any way destroyed, nor will we go with force against him nor send forces against him, except by the lawful judgment of his peers or by the law of the land
Law of the land
The phrase law of the land is a legal term, equivalent to the Latin lex terrae . It refers to all of the laws in force within a country or region, including both statute law and common law....
." Article 9(1) is similar, but by no means identical, to the Due Process Clause of the Fourteenth Amendment to the United States Constitution
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
which prohibits any state from denying "any person of life, liberty, or property, without due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
of law", and to Article 21 of the Constitution of India
Constitution of India
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...
which states: "No person shall be deprived of his life or personal liberty except according to procedure established by law." Article 5(1) of the Constitution of Malaysia
Constitution of Malaysia
The Federal Constitution of Malaysia, which came into force in 1957, is the supreme law of Malaysia. The Federation was initially called the Federation of Malaya and it adopted its present name, Malaysia, when the States of Sabah, Sarawak and Singapore joined the Federation...
and Singapore's Article 9(1) are worded the same way as the latter was adopted in 1965 from the former following Singapore's independence from Malaysia.
Meaning of life
In Yong Vui Kong v. Public ProsecutorYong Vui Kong v. Public Prosecutor
Yong Vui Kong v. Public Prosecutor was a seminal case decided in 2010 by the Court of Appeal of Singapore which held that the mandatory death penalty imposed by the for certain drug trafficking offences does not infringe Articles 9 and 12 of the Constitution of Singapore.Article 9 states: "No...
(2010), the Court of Appeal of Singapore
Court of Appeal of Singapore
The Court of Appeal of the Republic of Singapore is the nation's highest court and its court of final appeal. It is the upper division of the Supreme Court of Singapore, the lower being the High Court. The Court of Appeal consists of the Chief Justice of Singapore, who is the President of the...
called the right to life
Right to life
Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...
"the most basic of human rights". However, the courts have not yet had the opportunity to define the term life in Article 9(1).
Jurisdictions such as India, Malaysia and the United States interpret the same term in their respective constitutions broadly. In the United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
case Munn v. Illinois
Munn v. Illinois
Munn v. Illinois, 94 U.S. 113 , was a United States Supreme Court case dealing with corporate rates and agriculture. The Munn case allowed states to regulate certain businesses within their borders, including railroads, and is commonly regarded as a milestone in the growth of federal government...
(1877), Justice Stephen Johnson Field
Stephen Johnson Field
Stephen Johnson Field was an American jurist. He was an Associate Justice of the United States Supreme Court of the United States Supreme Court from May 20, 1863, to December 1, 1897...
stated that the term life means more than mere animal existence. Rather, the definition extends to all those limbs and faculties by which life is enjoyed. His rationale was that the term should not be "construed in any narrow or restricted sense". Indian courts have likewise adopted a broad interpretation of life in Article 21 of the Indian Constitution to mean more than mere existence – instead, it includes the right to livelihood and the right to a healthy environment. Subsequently, in Samatha v. State of Andhra Pradesh (1997), the meaning of life was expanded to include the right to live with human dignity; and to the provision of minimum sustenance, shelter, and those other rights and aspects of life that make life meaningful and worth living. Similarly, Justice Prafullachandra Natwarlal Bhagwati
Prafullachandra Natwarlal Bhagwati
Prafullachandra Natwarlal Bhagwati shortly P. N. Bhagwati was the Chief Justice of the Supreme Court of India from 12-July-1985 until his retirement on December 20, 1986. He was awarded India's second highest civilian honour Padma Vibhushan in 2007...
held in Bandhua Mukti Morcha v. Union of India (1984) that the expression life included the right to be free from exploitation, and to the basic essentials of life included in the Directive Principles of State Policy
Directive Principles in India
The Directive Principles of State Policy are guidelines to the central and state governments of India, to be kept in mind while framing laws and policies...
that appear in the Indian Constitution.
In the Malaysian case Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan
Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & Another
Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Another [1996] 1 MLJ 261 was a case heard in the Court of Appeal of Malaysia. The case concerned the allegedly wrongful dismissal of Tan Tek Seng, a schoolteacher...
(1996), the appellant had appealed against his wrongful dismissal
Wrongful dismissal
Wrongful dismissal, also called wrongful termination or wrongful discharge, is an idiom and legal phrase, describing a situation in which an employee's contract of employment has been terminated by the employer in circumstances where the termination breaches one or more terms of the contract of...
from employment on the grounds of procedural unfairness. One of the issues brought up was whether an unfair procedure meant that he had been deprived of his constitutional right to life or liberty protected by Article 5(1) of the Malaysian Constitution, which is identical to Singapore's Article 9(1). Judge of the Court of Appeal Gopal Sri Ram held that the courts should take into consideration the unique characteristics and situation of the country, and must not be blind to the realities of life. He went on to suggest that a liberal approach be adopted to grasp the intention of the framers of the Constitution by giving life a broad and liberal meaning. He opined that such an interpretation would include elements that form the quality of life, namely the right to seek and be engaged in lawful and gainful employment, and the right to live in a reasonably healthy and pollution-free environment. He also noted that life cannot be extinguished or taken away except according to procedure established by law.
The Yong Vui Kong case suggests that Singapore courts may interpret the word life more narrowly than the Indian and Malaysian courts when called upon to do so. The Court of Appeal stated that the scope of Article 21 of the Indian Constitution had been expanded by the Indian courts to include "numerous rights relating to life, such as the right to education, the right to health and medical care and the right to freedom from noise pollution", attributing this to the "pro-active approach of the Indian Supreme Court in matters relating to the social and economic conditions of the people of India". The Court declined to apply Mithu v. State of Punjab, in which the mandatory death penalty had been found unconstitutional, stating it was "not possible" to interpret Singapore's Article 9(1) in the way that the Indian Supreme Court had interpreted Article 21 of the Indian Constitution.
Meaning of personal liberty
Lo Pui Sang v. Mamata Kapildev Dave (2008) took a narrow approach to the reading of personal liberty in Article 9(1). The High Court of SingaporeHigh Court of Singapore
The High Court of the Republic of Singapore is the lower division of the Supreme Court of Singapore, the upper being the Court of Appeal. It consists of the Chief Justice of Singapore and the Judges of the High Court. Judicial Commissioners are often appointed to assist with the Court's caseload...
held that personal liberty only refers to freedom from unlawful incarceration or detention, and does not include a liberty to contract. Although it was suggested this had always been the understanding of the term, no authority was cited.
The approach taken in Lo Pui Sang can be compared to the more liberal interpretation of liberty in the United States and Malaysia. In the US Supreme Court case of Allgeyer v. Louisiana
Allgeyer v. Louisiana
Allgeyer v. Louisiana, , was a landmark United States Supreme Court case in which a unanimous court struck down a Louisiana statute on grounds that it violated an individual's "liberty to contract." This was the first case in which the Supreme Court interpreted the word liberty in the Due Process...
(1897), where a Louisiana statute was struck down on the ground that it violated an individual's right to contract, it was held that liberty in the Fourteenth Amendment of the Constitution meant not only the right of the citizen to be free from any physical restraint of his person, but also the right to freely enjoy all his faculties – that is, to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts that may be proper, necessary, and essential to his carrying out those purposes. Liberty was accorded the same broad reading in the subsequent case Meyer v. Nebraska
Meyer v. Nebraska
Meyer v. Nebraska, 262 U.S. 390 , was a U.S. Supreme Court case that held that a 1919 Nebraska law restricting foreign-language education violated the Due Process clause of the Fourteenth Amendment.-Context and legislation:...
(1923), in which the Supreme Court held that a state statute mandating that English be the only language used in schools was unconstitutional as it infringed on the liberty guaranteed by the Fourteenth Amendment. The Court stated that liberty
It was held in the Malaysian Court of Appeal case of Sugumar Balakrishnan v. Pengarah Imigresen Negeri Sabah (1998) that the term life in Article 5(1) of the Constitution is not limited to mere existence, but is a wide concept that must receive a broad and liberal interpretation. Likewise, personal liberty should be similarly interpreted, as any other approach to construction will necessarily produce an incongruous and absurd result. On the facts, personal liberty extended to the liberty of an aggrieved person to go to court and seek judicial review, and thus a statutory provision that sought to oust the power of judicial review was apparently inconsistent with this fundamental liberty. However, the apparent inconsistency could be resolved by permitting an ouster clause to immunize from judicial review only those administrative acts and decisions that are not infected by an error of law. Although the Federal Court
Federal Court of Malaysia
The Federal Court of Malaysia is the highest court and the final appellate court in Malaysia. It is housed in the Palace of Justice in Putrajaya...
reversed the Court of Appeal on this point, in the subsequent case Lee Kwan Woh v. Public Prosecutor
Lee Kwan Woh v. Public Prosecutor
Lee Kwan Woh v. Public Prosecutor [2009] 5 CLJ 631 was a case heard in the Federal Court of Malaysia. The Federal Court unanimously allowed Lee's appeal against the death sentence because of irregularities in his original trial for drug trafficking in the High Court, and held that the trial judge's...
(2009) the Federal Court held that the provisions of the Constitution should be interpreted "generously and liberally", and that "on no account should a literal construction be placed on its language, particularly upon those provisions that guarantee to individuals the protection of fundamental rights". In its view:
The Federal Court went on to state that personal liberty "includes other rights" such as the right to "cross the frontiers in order to enter or leave the country when one so desires".
It has been suggested that since Article 9(1) of the Singapore Constitution is pitched at a high level of generality, there is no limitation in the ordinary natural meaning of the phrase. Thus, there is no requirement in the Constitution for personal liberty to be construed narrowly to mean only freedom from physical restraint.
Meaning of save in accordance with law
The meaning of the word law in Article 9(1) has a direct bearing on the scope of the Article. If law is read broadly (for example, as incorporating customary international lawCustomary international law
Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...
principles), the scope of the fundamental liberties would be wider. It would be narrower if, on the other hand, law is construed narrowly, as the Legislature would be able to curtail such rights through legislation more easily. This could lead to a watering-down of the emphasis on fundamental liberties, as any infringement might be considered legitimate so long as the statute in question was validly enacted.
Fundamental rules of natural justice
Federal Court of Malaysia
The Federal Court of Malaysia is the highest court and the final appellate court in Malaysia. It is housed in the Palace of Justice in Putrajaya...
construed the phrase save in accordance with law in Article 13(1) of the Constitution of Malaysia
Constitution of Malaysia
The Federal Constitution of Malaysia, which came into force in 1957, is the supreme law of Malaysia. The Federation was initially called the Federation of Malaya and it adopted its present name, Malaysia, when the States of Sabah, Sarawak and Singapore joined the Federation...
restrictively. This provision states: "No person shall be deprived of property save in accordance with law." The Court held that all that was required for the legislation in question to be constitutional was for it to have been validly passed by Parliament. Hence, the validity of any duly enacted piece of legislation could not be questioned on grounds of reasonableness, no matter how arbitrary the law appeared to be.
However, in 1980 the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
rejected this interpretation in the case of Ong Ah Chuan v. Public Prosecutor, a decision on appeal from Singapore. This appeal questioned the constitutional validity of section 15 of the Misuse of Drugs Act
Misuse of Drugs Act (Singapore)
The Misuse of Drugs Act is a national drug control law classifying substances into three categories, Classes A, B, and C. Section 44 provides that "The Minister may, by an order published in the Gazette" add, remove, or transfer drugs among the classes...
, and one of the issues that had to be decided was the interpretation of the word law in Article 9(1). The Public Prosecutor contended that law should be given a narrow meaning. He argued that
However, the Public Prosecutor qualified the statement by providing a limitation, namely, that "the arbitrariness, the disregard of fundamental rules of natural justice for which the Act provides, must be of general application to all citizens of Singapore so as to avoid falling foul of the anti-discriminatory provisions of Art 12(1)
Article 12 of the Constitution of Singapore
Article 12 of the Constitution of the Republic of Singapore guarantees to all persons equality before the law and equal protection of the law. The Article also identifies four forbidden classifications – religion, race, descent and place of birth – upon which Singapore citizens may not be...
".
In a judgment delivered by Lord Diplock, the Privy Council rejected this interpretation, finding the Public Prosecutor's argument fallacious. Reading the definition of written law as stated in Article 2(1) together with Article 4, which provides that "any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void", their Lordships held that "the use of the expression 'law' in Art 9(1) ... does not, in the event of challenge, relieve the court of its duty to determine whether the provisions of an Act of Parliament passed after 16 September 1963 and relied upon to justify depriving a person of his life or liberty are inconsistent with the Constitution and consequently void".
In line with their view that Part IV of the Constitution should be given "a generous interpretation ... suitable to give to individuals the full measure of the
[fundamental liberties] referred to", their Lordships held that "references to 'law' in such contexts as 'in accordance with law', 'equality before the law', 'protection of the law' and the like ... 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". This conception of the meaning of law in Article 9(1) has been affirmed by the Court of Appeal
Court of Appeal of Singapore
The Court of Appeal of the Republic of Singapore is the nation's highest court and its court of final appeal. It is the upper division of the Supreme Court of Singapore, the lower being the High Court. The Court of Appeal consists of the Chief Justice of Singapore, who is the President of the...
in Nguyen Tuong Van v. Public Prosecutor (2005) and Yong Vui Kong v. Public Prosecutor (2010).
It has been highlighted that this elevation of principles of natural justice to constitutional status, with the implication that they may override local statutes due to the supremacy of the Constitution over them, creates some tension with Article 38 which vests the law-making power of Singapore in the legislature.
Extent of natural justice
In Ong Ah Chuan and the subsequent decision Haw Tua Tau v. Public Prosecutor (1981), the Privy Council declined to set out a comprehensive list of fundamental rules of natural justice
Natural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
and merely stated some principles to deal with the issues at hand. At a 2000 conference, the Attorney-General
Attorney-General of Singapore
The Attorney-General of Singapore is the legal adviser to the government of the Republic of Singapore and its public prosecutor.The office was founded in 1867 as the chief legal officer of the British crown colony of the Straits Settlements. The current requirements for appointment as...
Chan Sek Keong
Chan Sek Keong
Chan Sek Keong is the current Chief Justice of Singapore, having taken over from the former Chief Justice Yong Pung How on 11 April 2006. Chan was formerly the Attorney-General of Singapore, before being succeeded by Chao Hick Tin on 11 April 2006....
, who became Chief Justice
Chief Justice of Singapore
The Chief Justice of Singapore is the highest post in the judicial system of Singapore. The Chief Justice is appointed by the President, chosen from candidates recommended by the Prime Minister. The present Chief Justice is Chan Sek Keong....
in 2006, remarked that this gives the Court of Appeal a free hand to determine the scope of the fundamental rules of natural justice unencumbered by precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
.
Guidance as to the scope of fundamental rules of natural justice was provided in Haw Tua Tau. First, the Privy Council said that rules of natural justice are not stagnant and may change with the times. Secondly, they should be considered in the local context, in light of the entire system as a whole and from the perspective of the people operating the system. Further, in order to satisfy the rules of natural justice, the law in question should not be "obviously unfair". In its view, under a system of justice in which the court is invested with partly inquisitorial
Inquisitorial system
An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense...
functions, compelling an accused to answer questions put to him by a judge cannot be regarded as contrary to natural justice. The Court of Appeal later ruled in Public Prosecutor v. Mazlan bin Maidun (1992) that the privilege
Privilege (evidence)
An evidentiary privilege is a rule of evidence that allows the holder of the privilege to refuse to provide evidence about a certain subject or to bar such evidence from being disclosed or used in a judicial or other proceeding....
against self-incrimination
Self-incrimination
Self-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a...
was not a fundamental rule of natural justice, and thus not a constitutional right.
In Yong Vui Kong v. Attorney-General (2011), the Court of Appeal stated that fundamental rules of natural justice embodied in the concept of law in constitutional provisions such as Articles 9(1) and 12(1) are the same in nature and function as common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
rules of natural justice in administrative law, except that they operate at different levels of the legal order. The former invalidate legislation on the ground of unconstitutionality and can only be altered by amending the Constitution, while the latter invalidate administrative decisions on the ground of administrative law principles and can be abrogated or disapplied by ordinary legislation.
A procedural or substantive concept?
Traditionally, at common law natural justice is taken to be a procedural concept that embodies the twin pillars of audi alteram partem
Audi alteram partem
Audi alteram partem is a Latin phrase that literally means "hear the other side" or "hear the alternative party"...
(hear the other party) and nemo iudex in causa sua (no one should be a judge in his or her own cause). In the United States, due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
has both procedural and substantive components. Substantive due process
Substantive due process
Substantive due process is one of the theories of law through which courts enforce limits on legislative and executive powers and authority...
involves the courts assessing the reasonableness of executive actions and legislation using rational basis review
Rational basis review
Rational basis review, in U.S. constitutional law, refers to a level of scrutiny applied by courts when deciding cases presenting constitutional due process or equal protection issues related to the Fifth Amendment or Fourteenth Amendment. Rational basis is the lowest level of scrutiny that a...
if a fundamental right is not implicated and strict scrutiny
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
if it is. The question thus arises whether substantive fundamental rules of natural justice may be developed by local courts. However, a line of Malaysian cases has expressed the view that the concept of substantive due process is not applicable to Article 5(1) of the Malaysian Constitution, which is identical to Singapore's Article 9(1). There is also academic commentary that rejects the notion of "substantive natural justice", arguing that it is too vague and leads to problems in application. Another argument against substantive natural justice is the fear that it may become an avenue for judges to invalidate laws on the basis of their own subjective opinions, leading to unbounded judicial activism
Judicial activism
Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
.
On the other hand, it has also been suggested that substantive natural justice would merely be a full exercise of the judiciary's proper role as conferred by the Constitution. In addition, one scholar has asserted that there is no doubt that a judicial inquiry covers both substantive and procedural aspects. It is said that Article 9(1) connotes a judicial inquiry into the "fairness" of the law tested against certain principles regarded as fundamental to the legal system. Distinguishing between substantive and procedural fairness is a meaningless exercise, as it merely clouds the process of judicial inquiry. Judicial review is judicial review under whatever name, and as far as Article 9(1) is concerned, there is no room for making this distinction.
However, in Yong Vui Kong v. Public Prosecutor (2010) the Court of Appeal appeared to reject such an approach by declining to require that procedural laws must be "fair, just and reasonable" before they can be regarded as law for the purpose of Article 9(1). It noted that the provision neither contains such a qualification, nor can such a qualification be implied from its context or wording. The Court considered it "too vague a test of constitutionality" and said: "Such a test hinges on the court’s view of the reasonableness of the law in question, and requires the court to intrude into the legislative sphere of Parliament as well as engage in policy making." On the other hand, the Court acknowledged that Article 9(1) does not justify all legislation whatever its nature. It held, obiter
Obiter dictum
Obiter dictum is Latin for a statement "said in passing". An obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision...
, that law might not encompass colourable legislation (that is, bills of attainder
Bill of attainder
A bill of attainder is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a judicial trial.-English law:...
– legislation purporting to be of general application but in fact directed at securing the conviction of particular individuals), or legislation "of so absurd or arbitrary a nature that it could not possibly have been contemplated by our constitutional framers as being 'law' when they crafted the constitutional provisions protecting fundamental liberties".
Customary international law
Customary international law
Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...
. In that case, the appellant argued that effecting a death sentence for drug trafficking by hanging
Hanging
Hanging is the lethal suspension of a person by a ligature. The Oxford English Dictionary states that hanging in this sense is "specifically to put to death by suspension by the neck", though it formerly also referred to crucifixion and death by impalement in which the body would remain...
is unconstitutional as a form of cruel and inhuman punishment
Cruel and unusual punishment
Cruel and unusual punishment is a phrase describing criminal punishment which is considered unacceptable due to the suffering or humiliation it inflicts on the condemned person...
not "in accordance with law". The Court agreed that there was a prohibition against torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
and cruel and inhumane treatment in Article 5 of the Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
and that this is considered customary international law. However, a customary international law rule had to be "clearly and firmly established" before it was adopted by the courts, and there was insufficient practice among states to hold that death by hanging was within the ambit of this prohibition. Also, even if there was a customary international law rule against death by hanging, domestic statutes would prevail in the event of conflict.
The Court of Appeal clarified in Yong Vui Kong v. Public Prosecutor (2010), that customary international law cannot be read into Constitution for two reasons. First, in order for a customary international law rule to have legal effect in Singapore, it has to be incorporated into domestic law
Municipal law
Municipal law is the national, domestic, or internal law of a sovereign state defined in opposition to international law. Municipal law includes not only law at the national level, but law at the state, provincial, territorial, regional or local levels...
. The incorporation can occur either by enactment in a statute or by a court declaration that the rule forms part of the common law. The Court felt it would be incorrect to incorporate customary international law rules into the meaning of law in Article 9(1) as this would cloak the common law with the constitutional status to nullify a statute, thus reversing the usual hierarchy of legal rules. Secondly, the term law is defined in Article 2(1) to include the common law only "in so far as it is in operation in Singapore". However, a court cannot treat rules of customary international law as having been incorporated into Singapore common law if they are inconsistent with existing statutes. Furthermore, if there is a conflict between such a rule and a domestic statute, the latter prevails.
The Constitution is silent as to the reception of international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
in domestic law. In Yong Vui Kong the Court of Appeal accepted that domestic law, including the Constitution, should "as far as possible" be consistently interpreted with Singapore's international obligations. Nonetheless, while international human rights law can increase the normative pool judges may resort to in interpreting the Constitution, there are "inherent limits" such as the express wording of the constitutional text and constitutional history that "[militates] against the incorporation of those international norms".
It has also been argued that although where possible local statutes should be interpreted in light of international treaties, it is not the role of the judiciary to import international law standards into the Constitution that are inconsistent with legislation instead of deferring
Judicial deference
Judicial deference is a doctrine by which judges seek to avoid frustrating the will of the legislature when deciding cases . It is most commonly found in countries, such as the United Kingdom, which lack an entrenched constitution, as the essential purpose of such documents is to limit the power of...
to the views of the executive
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
. According to this view, which hinges on a strict adherence to the separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
doctrine, the judiciary should guard against unwarranted incursions into the executive sphere, as it is for the executive to determine Singapore's attitude and position in relation to foreign affairs. The judiciary must not undertake its task of interpreting the Constitution arbitrarily, but should accord with legal reasoning and sound principles. This necessarily raises the question of what the applicable legal principle during the interpretation process should be. It has been suggested that the executive and the judiciary should show solidarity by speaking with "one voice", and that the courts should exercise deference in favour of what the executive deems to be the nation's attitude towards the particular international law norm that is sought to be applied.
It may be submitted that such judicial deference to the executive results in a clear neglect of the enshrined fundamental liberties in the Constitution. The flip side to this criticism is that fundamental liberties may still be given due accord though other avenues, for example, the application of rules of natural justice. As the meaning accorded to a particular fundamental liberty may be a potential ground for overturning Parliamentary legislation, it is crucial that the court should not merely rely on international law to determine the meaning of the liberty, unless there is evidence that the executive considers there is indeed an adoption of the particular international law norm.
Abortion
One of the most difficult questions involving the right to life is when exactly life begins and ends. If an unborn child is treated as a living person, then it should be accorded the right to life under the Constitution. Laws permitting abortionAbortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
would thus be unconstitutional. This issue has yet to come before the Singapore courts.
In Singapore, the Penal Code
Penal Code (Singapore)
The Penal Code of Singapore sets out general principles of the criminal law of Singapore, as well as the elements and penalties of common criminal offences such as homicide, theft and cheating...
lays out sanctions for non-compliance with the Termination of Pregnancy Act, which limits abortion to patients who have not been pregnant for more than 24 weeks. By not conferring the right to life upon fetuses younger than the stipulated period, the legislation has accorded greater weight to the safety and security of expectant mothers who are threatened by their unborn children. This is in contrast with the approach taken in the Philippines, where the Constitution
Constitution of the Philippines
The Constitution of the Philippines is the supreme law of the Philippines.The Constitution currently in effect was enacted in 1987, during the administration of President Corazon Aquino, and is popularly known as the "1987 Constitution"...
provides that the state shall equally protect the life of the mother and the life of the unborn from conception. Similarly, the Charter of Fundamental Rights and Basic Freedoms
Charter of Fundamental Rights and Basic Freedoms
The Charter of Fundamental Rights and Basic Freedoms is a document enacted in 1991 by the Czechoslovak Federal Republic, and continued as part of the great constitutional systems of both the Czech Republic and Slovak Republic...
of the Czech Republic states that human life deserves to be protected before birth. It is notable that these jurisdictions have a predominantly Catholic majority
Catholicism and abortion
The Roman Catholic Church opposes all forms of abortion procedures whose direct purpose is to destroy an embryo, blastocyst, zygote or fetus, since it holds that "human life must be respected and protected absolutely from the moment of conception...
, which is staunchly pro-life. Chances of a universal consensus on this issue are slim due to the difficulty in defining the beginning of life.
Right to die
In Singapore, attempted suicideFailed suicide attempt
Failed suicide attempts comprise a large portion of suicide attempts. Some are regarded as not true attempts at all, but rather parasuicide. The usual attempt may be a wish to affect another person by the behaviour. Consequently, it occurs in a social context and may represent a request for help....
, and abetment of suicide and attempted suicide are criminal acts. This applies to physicians who aid patients in ending their lives. Such physicians are unable to claim a defence under section 88 of the Penal Code since they intended to cause the patients' deaths. However, physicians are absolved of liability if patients refuse treatment for terminal illness
Terminal illness
Terminal illness is a medical term popularized in the 20th century to describe a disease that cannot be cured or adequately treated and that is reasonably expected to result in the death of the patient within a short period of time. This term is more commonly used for progressive diseases such as...
es by issuing advance medical directives.
Whether the right to life guaranteed by Article 9(1) encompasses a right to die
Right to die
The right to die is the ethical or institutional entitlement of the individual to commit suicide or to undergo voluntary euthanasia. Possession of this right is often understood to mean that a person with a terminal illness should be allowed to commit suicide or assisted suicide or to decline...
– that is, a right to commit suicide or a right to assisted suicide
Assisted suicide
Assisted suicide is the common term for actions by which an individual helps another person voluntarily bring about his or her own death. "Assistance" may mean providing one with the means to end one's own life, but may extend to other actions. It differs to euthanasia where another person ends...
, usually in the face of a terminal illness – has not been the subject of any Singapore court case. In other jurisdictions, the right to life
Right to life
Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...
has generally not been interpreted in this way. In Gian Kaur v. State of Punjab (1996) the Indian Supreme Court held that the right to life is a natural right embodied in Article 21 of the Indian Constitution, and since suicide is an unnatural termination or extinction of life it is incompatible and inconsistent with the concept of the right to life. The US Supreme Court has also declined to recognize that choosing death is a right protected by the Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
. In Washington v. Glucksberg
Washington v. Glucksberg
Washington v. Glucksberg, 521 U.S. 702 , was a case in which the Supreme Court of the United States unanimously held that a right to assistance in committing suicide was not protected by the Due Process Clause.-Facts:Dr...
(1997), a group of Washington residents asserted that a state law banning assisted suicide was unconstitutional on its face. The majority held that as assisted suicide is not a fundamental liberty interest, it was not protected under the due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
clause of the Fourteenth Amendment. Several of the justices seemed persuaded that the availability of palliative care
Palliative care
Palliative care is a specialized area of healthcare that focuses on relieving and preventing the suffering of patients...
to "alleviate suffering, even to the point of causing unconsciousness and hastening death" outweighed recognizing a new unenumerated
Unenumerated rights
Unenumerated rights are sometimes defined as legal rights inferred from other legal rights that are officiated in a retrievable form codified by law institutions, such as in written constitutions, but are not themselves expressly coded or "enumerated" among the explicit writ of the law. ...
"right to commit suicide which itself includes a right to assistance in doing so".
Rights of arrested persons
Article 9(2) of the Constitution enshrines the right of persons who have been detained to apply to the High Court challenging the legality of their detention. The application is for an order for review of detention, which was formerly called a writWrit
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
. The Court is required to inquire into the complaint, and order the detainee to be produced before the Court and released unless it is satisfied that the detention is lawful.
Article 9(3) requires that an arrested person be informed "as soon as may be" of the grounds of his arrest. Article 9(4) goes on to provide that if the arrested person is not released he must, without unreasonable delay, and in any case within 48 hours (excluding the time of any necessary journey) be produced before a magistrate and cannot be further detained in custody without the authority of the magistrate. The person's attendance before the magistrate may be in person or by way of video-conferencing
Videoconferencing
Videoconferencing is the conduct of a videoconference by a set of telecommunication technologies which allow two or more locations to interact via two-way video and audio transmissions simultaneously...
or other similar technology in accordance with law.
Right to counsel
Article 9(3) also states that an arrested person must be allowed to consult and be defended by a legal practitioner
Lawyers in Singapore
Lawyers in Singapore are part of a fused profession, meaning that they may act as both a solicitor and as an advocate, although lawyers usually specialize in one of litigation, conveyancing or corporate law....
of his choice.
Restrictions on the rights to life and personal liberty
As mentioned above, Parliament is entitled to restrict the rights to life and personal liberty as long as it acts "in accordance with law". More specific restrictions on Article 9 include Article 9(5), which provides that Articles 9(3) and (4) of the Constitution do not apply to enemy alienEnemy alien
In law, an enemy alien is a citizen of a country which is in a state of conflict with the land in which he or she is located. Usually, but not always, the countries are in a state of declared war.-United Kingdom:...
s or to persons arrested for contempt of Parliament pursuant to a warrant
Warrant (law)
Most often, the term warrant refers to a specific type of authorization; a writ issued by a competent officer, usually a judge or magistrate, which permits an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is...
issued by the Speaker
Speaker of the Parliament of Singapore
The speaker of the Parliament of Singapore is the head officer in the Parliament of Singapore.The role of the Speaker in Singapore is similar to that in most Commonwealth legislatures. The Speaker presides over the Parliament and enforces the rules in the Standing Orders of Parliament to allow for...
.
Detention under the Criminal Law (Temporary Provisions) Act and the Misuse of Drugs Act
Article 9(6) saves any law in force before the commencement of the Constitution authorizing the arrest and detention of any person in the interests of public safety, peace and good order; or relating to the misuse of drugs or intoxicating substances which authorizes the arrest and detention of any person for treatment and rehabilitationDrug rehabilitation
Drug rehabilitation is a term for the processes of medical or psychotherapeutic treatment, for dependency on psychoactive substances such as alcohol, prescription drugs, and so-called street drugs such as cocaine, heroin or amphetamines...
,
from being invalid because of inconsistency with Articles 9(3) and (4). This provision took effect on 10 March 1978 but was expressed to apply to laws in force prior to that date. Introduced by the Constitution (Amendment) Act 1978, the provision immunizes the Criminal Law (Temporary Provisions) Act and Part IV of the Misuse of Drugs Act from unconstitutionality.
Preventive detention
Preventive detention
Preventive detention is an imprisonment that is not imposed as the punishment for a crime, but in order to prevent a person from committing a crime, if that person is deemed likely to commit a crime....
is the use of executive power to detain individuals on the basis that they are predicted to commit future crimes that will threaten national interest. Among other things, the Criminal Law (Temporary Provisions) Act empowers the Minister for Home Affairs
Ministry of Home Affairs (Singapore)
The Ministry of Home Affairs is a ministry of the Government of Singapore responsible for public safety, civil defence and immigration. It is also known as the Home Team. It is headed by the Minister for Home Affairs....
, if satisfied that a person has been associated with activities of a criminal nature, to order that he or she be detained for a period not exceeding 12 months if the Minister is of the view that the detention is necessary in the interests of public safety, peace and good order.
Under the Misuse of Drugs Act, the Director of the Central Narcotics Bureau
Central Narcotics Bureau
The Central Narcotics Bureau of Singapore was established in 1971 as the primary drug enforcement agency entrusted with the responsibilities of coordinating all matters pertaining to drug eradication...
may order drug addicts to undergo drug treatment or rehabilitation at an approved institution for renewable six-month periods up to a maximum of three years.
Detention under the Internal Security Act
Section 8(1) of Singapore's Internal Security ActInternal Security Act (Singapore)
The Internal Security Act of Singapore is a law that allows the Singapore government to investigate security threats like international terrorism, foreign subversion, espionage and acts of violence or hatred using race or religion...
("ISA") gives the Minister for Home Affairs the power to detain a person without trial for any period not exceeding two years on the precondition that the President
President of Singapore
The President of the Republic of Singapore is Singapore's head of state. In a Westminster parliamentary system, as which Singapore governs itself, the prime minister is the head of the government while the position of president is largely ceremonial. Before 1993, the President of Singapore was...
is: "satisfied ... that ... it is necessary to do so ... with a view to preventing that person from acting in any manner prejudicial to the security of Singapore ... or to the maintenance of public order or essential services therein". The period of detention may be renewed by the President indefinitely for periods not exceeding two years at a time as long as the grounds for detention continue to exist.
The ISA has its constitutional basis in Article 149 of the Constitution, which sanctions preventive detention and allows for laws passed by the legislature against subversion
Subversion
Apache Subversion is a software versioning and a revision control system distributed under a free license. Developers use Subversion to maintain current and historical versions of files such as source code, web pages, and documentation...
to override the Articles protecting the personal liberties of the individual. Specifically, Article 149(1) declares such legislation to be valid notwithstanding any inconsistency with five of the fundamental liberty provisions in the Constitution, including Article 9. Thus, detentions under the ISA cannot be challenged on the basis of deprivation of these rights.
Cases
- Ong Ah Chuan v. Public Prosecutor [1980] UKPC 32, [1981] A.C. 648, [1979–1980] S.L.R.(R.) [Singapore Law Reports (Reissue)] 710, Privy CouncilJudicial Committee of the Privy CouncilThe Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
(on appeal from Singapore). - Haw Tua Tau v. Public Prosecutor [1981] UKPC 23, [1982] A.C. 136, [1981–1982] S.L.R.(R.) 133, P.C. (on appeal from Singapore).
- Tan Tek Seng v. Suruhanjaya Perkhidmatan PendidikanTan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & AnotherTan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Another [1996] 1 MLJ 261 was a case heard in the Court of Appeal of Malaysia. The case concerned the allegedly wrongful dismissal of Tan Tek Seng, a schoolteacher...
[1996] 1 M.L.J. [Malaya Law Journal] 261, Court of AppealCourt of Appeal of MalaysiaThe Court of Appeal is an appellate court of the judiciary system in Malaysia. It is the second highest court in the hierarchy below the Federal Court. This court was created in 1994 as part of reforms made to the judiciary to create a second tier appellate court after the Privy Council appeals...
(Malaysia). - Washington v. GlucksbergWashington v. GlucksbergWashington v. Glucksberg, 521 U.S. 702 , was a case in which the Supreme Court of the United States unanimously held that a right to assistance in committing suicide was not protected by the Due Process Clause.-Facts:Dr...
, Supreme CourtSupreme Court of the United StatesThe Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
(United States). - Sugumar Balakrishnan v. Pengarah Imigresen Negeri Sabah [1998] 3 M.L.J. 289, C.A. (Malaysia).
- Nguyen Tuong Van v. Public Prosecutor [2005] 1 S.L.R.(R.) 103, Court of AppealCourt of Appeal of SingaporeThe Court of Appeal of the Republic of Singapore is the nation's highest court and its court of final appeal. It is the upper division of the Supreme Court of Singapore, the lower being the High Court. The Court of Appeal consists of the Chief Justice of Singapore, who is the President of the...
(Singapore). - Lee Kwan Woh v. Public ProsecutorLee Kwan Woh v. Public ProsecutorLee Kwan Woh v. Public Prosecutor [2009] 5 CLJ 631 was a case heard in the Federal Court of Malaysia. The Federal Court unanimously allowed Lee's appeal against the death sentence because of irregularities in his original trial for drug trafficking in the High Court, and held that the trial judge's...
[2009] 5 M.L.J. 301, Federal CourtFederal Court of MalaysiaThe Federal Court of Malaysia is the highest court and the final appellate court in Malaysia. It is housed in the Palace of Justice in Putrajaya...
(Malaysia). - Yong Vui Kong v. Public ProsecutorYong Vui Kong v. Public ProsecutorYong Vui Kong v. Public Prosecutor was a seminal case decided in 2010 by the Court of Appeal of Singapore which held that the mandatory death penalty imposed by the for certain drug trafficking offences does not infringe Articles 9 and 12 of the Constitution of Singapore.Article 9 states: "No...
[2010] 3 S.L.R. [Singapore Law Reports] 489, C.A. (Singapore).