Public Prosecutor v. Taw Cheng Kong
Encyclopedia
Public Prosecutor v. Taw Cheng Kong is a landmark case decided in 1998 by the Court of Appeal of Singapore
which shaped the landscape of Singapore's constitutional law
. The earlier High Court
decision, Taw Cheng Kong v. Public Prosecutor, was the first instance in Singapore's history that a statutory provision was struck down as unconstitutional. The matter subsequently reached the Court of Appeal when the Public Prosecutor
applied for a criminal reference for two questions to be considered. The questions were:
In answering both questions in the negative, the Court of Appeal overturned the High Court's finding that the statute was unconstitutional. The Court of Appeal further clarified Singapore's stance on legislative plenary power
and expounded upon Article 12(1) of the Constitution, explaining that the promise of equality does not mean that all persons are to be treated equally, but simply that all persons in like situations will be treated alike. Drawing on foreign case law, the Court of Appeal further outlined the test to determine if a differentiating law falls foul of Article 12.
("GIC"). Based in Hong Kong, he had charge of equity portfolios in Hong Kong and the Philippines, and had authority to decide which companies to invest in on behalf of GIC.
Taw was charged with corruption in deals involving GIC and Rockefeller & Co. Inc. It was alleged that Taw, at the instigation of Kevin Lee, Managing Director of Rockefeller's Far East operations, had orchestrated the purchase by GIC of the Pioneer Hong Kong Fund, which was managed by Rockefeller. For each transaction, Lee was alleged to have paid Taw a sum of money. Taw was tried and convicted in the District Court
of eight charges of corruption under section 6(a) read with section 37(1) of the Prevention of Corruption Act ("PCA"). Section 6(a) of the PCA provides as follows:
Section 37(1) of the PCA states:
Taw appealed to the High Court
against his conviction on two main grounds. The first involved the admissibility of evidence
for his corruption, and, additionally, inconsistencies of such evidence. The second concerned constitutional issues. With regard to the evidential issue, the Court held that the trial judge made an error in accepting GIC's statements as admissible, and thus ordered Taw's convictions to be set aside.
.
laws of Malaysia and India, but differentiated them from the Singapore position since there were express provisions in the constitutions of these jurisdictions providing for the extraterritorial reach of their legislatures, namely, Article 73(a) of the Constitution of Malaysia
and Article 245(2) of the Constitution of India
. Article 73(a) of the Malaysian Constitution states:
Article 245(2) of the Indian Constitution likewise provides that:
In contrast, the Singapore Constitution contains no similar provision. The appellant hence argued that "Parliament [was] bound by an inherent limitation on its powers so any legislation purporting to have extraterritorial effect must have been ultra vires the Constitution".
The appellant further highlighted that section 6 of the Republic of Singapore Independence Act ("RSIA"), which was enacted shortly after Singapore's independence from Malaysia, provides that Part IV of the Constitution of Malaysia ceased to have effect in Singapore. Since Part IV contains Article 73(a) – the extraterritoriality clause – the appellant argued that its exclusion meant that Singapore's Parliament was not empowered to make any law which had extraterritorial effect.
The appellant's argument rested on the alleged arbitrariness of the ambit of section 37(1), in that it employed citizenship as a criteria. He alleged this was most apparent "if an offence under the Act was committed by a non-citizen or permanent resident jointly with a Singapore citizen outside Singapore", as "only the Singapore citizen could be dealt with in respect of that offence, and not the non-citizen or permanent resident". Hence, the appellant argued that since section 37(1) "unfairly discriminates against him on the basis of citizenship", it must contravene Article 12 which provides that all persons, citizens and non-citizens alike, are equal. This rendered section 37(1) void according to Article 4 of the Constitution which provides:
when it was still Singapore's final court of appeal. In the case, the Privy Council held that "equality before the law and equal protection of the law require that like should be treated with like". The court further clarified that laws that differentiate between classes are valid if "the factor which the legislature adopts as constituting the dissimilarity in circumstances is not purely arbitrary but bears a reasonable relation to the social object of the law".
Following the approach in Ong Ah Chuan, Judge of Appeal M. Karthigesu, sitting as a judge of the High Court in Taw Cheng Kong, sought to succinctly express the reasonable classification test as a means to combat three forms of arbitrariness. This can be expressed as follows:
According to the parliamentary debates relating to the Prevention of Corruption Ordinance 1960, the PCA was originally enacted to eradicate corruption from Singapore's civil service
and fiduciaries in Singapore, and not corruption globally "irrespective of national boundaries". Section 37(1), however, was not part of the original PCA. It was added in an amendment to the Act in 1966. In this regard, the Court found it incorrect, as a matter of statutory interpretation
, to "rely on earlier material to interpret subsequent legislation". Rather, it asserted the importance of looking at the amending legislation afresh.
Referring to the parliamentary material relating to the original Act and the subsequent addition of section 37(1), the Court found that section 37(1) was added to "address acts of corruption taking place outside Singapore but affecting events within it". To this end, it held that classification along the lines of citizenship was an unreasonable means of attaining the objective of section 37(1) of PCA, for it was both over-inclusive and under-inclusive. Legislation is over-inclusive if it catches a class of persons not originally contemplated as falling within the objective of the Act, and under-inclusive if it catches a class of persons who clearly do not fall within the mischief sought to be addressed by the Act. On the facts, section 37(1) was over-inclusive as a Singapore citizen who was now a permanent resident of a foreign country and employed there who received a bribe in a foreign currency from a foreign payor would be guilty of an offence under the Act. Conversely, it was simultaneously under-inclusive since a Singapore permanent resident or a foreigner working for the Government of Singapore
who takes a trip outside Singapore to receive a bribe in Singapore dollars in relation to an act he will do in Singapore is not caught under the Act.
The Singapore permanent resident poses a greater threat to the integrity of the Civil Service than the Singapore citizen employed abroad. Yet, it is the latter who is captured and not the former. Therefore, the High Court felt that classification according to citizenship was not a reasonable means of attaining the objectives of the PCA, for the latter class of persons who posed a larger threat would not be caught. Accordingly, section 37(1) was unconstitutional. The "strength of the nexus" between the objective of the PCA and the classification, along the lines of citizenship, was "insufficient" to justify the derogation from the constitutional promise of equality.
, in his capacity as the Public Prosecutor, applied pursuant to section 60 of the Supreme Court of Judicature Act for a criminal reference for two questions of law to be considered by the Court of Appeal
. The questions were:
or colony
had extraterritorial legislative powers. A fortiori
, a sovereign state's extraterritorial legislative powers should be undisputed. Therefore, the Court was of the opinion that when Singapore gained independence on 9 August 1965, it acquired the attributes of sovereignty, and Parliament was bestowed with full plenary power
s to enact legislation. These powers include the power to enact extraterritorial laws and enforce them in local courts.
Parliament had subsequently used these plenary powers to enact the Constitution (Amendment) Act 1965 and the RSIA on 22 December 1965. This served to eliminate any doubt as to the legislative powers of the Singapore Parliament because section 5 of the RSIA transferred all the plenary legislative powers previously possessed by the Parliament of Malaysia
to the Singapore Parliament. This would necessarily have included the power to legislate extraterritorially. This was not negated by section 6 of the RSIA for two reasons. First, with the plenary powers of the Malaysian legislature vested in it under section 5, Parliament "did not have to depend on any express conferment of extraterritorial powers". Secondly, section 6 was concerned with provisions in the Malaysian Constitution which were either "preserved or excluded because Parliament in 1965 did not have time to enact a new Constitution". It could not have any effect on section 5 of the RSIA which was not a provision of the Malaysian Constitution.
basis that had it been necessary to do so, it would have accepted the Attorney-General's alternate submission that Article 73(a) of the Malaysian Constitution was never intended to be an empowering provision.
If Article 73(a) was intended to be an empowering provision, its exclusion would have disempowered the Parliament from legislating within Singapore, an absurd result which could not have been intended. Instead, the Court held that the provision was a provision regulating the "relations between the Federation and the States", as the title of Part VI of the Malaysian Constitution states. This was supported by the text found in the marginal note ("extent of federal and state laws") and the relevant chapter ("distribution of legislative powers"). Additionally, the opening words to Article 73(a) – "In exercising the legislative powers conferred on it by this Constitution ..." – already indicated that it was presupposed
that extraterritorial powers had been conferred. As Article 73(a) was not an empowering provision, it had been excluded merely because it was irrelevant to the RSIA and it did not disempower the Parliament of its extraterritorial legislative powers.
Yong Pung How
arrived at this conclusion by considering the history that underpinned the notion of equality. The Court traced the origin of Article 12 back to the 40th article of the Magna Carta
which reads, "To none will we sell, to none will we deny, to none will we delay right or justice."
Subsequently, the Court cited with approval the Malaysian case Public Prosecutor v. Su Liang Yu (1976), that equality referred to the administration of equal justice. Also, the Privy Council case Ong Ah Chuan was quoted again, as it was in the High Court, as Yong C.J. referenced Lord Diplock
's observation that "... Art 12(1) of the Constitution assures ... the individual ... the right to equal treatment with other individuals in similar circumstances ...".
Judge Mohamed Azmi Mohamed
in Malaysian Bar v. Government of Malaysia (1986). Whilst similar to the test expressed by Karthigesu J.A. in the court below, this approach seemed to streamline his first two forms of arbitrariness into the first limb of its test. Thus, according to the Court of Appeal, the test for validity under Article 12 of the Constitution is as follows:
On a semantic
point, Yong C.J. cautioned against an indiscriminate use of the word discrimination, proffering instead that the term differentiation be used unless the law fails the three-stage test.
Also, before applying this test in considering if a piece of legislation contravenes Article 12, there needs to be a presumption that an impugned law is constitutional. This presumption of constitutionality
stems from the wide power of classification which the legislature has to make laws which operate differently as regards different groups of persons, so as to give effect to its policies. An academic, Tan Yock Lin, has acknowledged the benefit of this presumption as it "tells the challenger what he must do". The person challenging the constitutionality of a legislative or executive classification must expect to "furnish cogent and compelling evidence of unequal treatment". Postulating examples will not be sufficient for the purposes of rebuttal. However, Tan has pointed out that this results in additional indeterminacy for it is not clear what level of cogency will satisfy the court of the viability of the challenge.
Having established this expansive objective as the starting point, Yong C.J. dismissed the notion that the over- and under-inclusiveness of section 37(1) meant it was unconstitutional. In considering over-inclusiveness, he considered the argument that the "net cast by the legislature" would include a person whom the provision was not intended to catch, such as a Singapore citizen who is a foreign permanent resident, employed in the foreign country by the foreign government, receiving a bribe paid in foreign currency by a foreign payor. He held, however, that such alleged over-inclusiveness was irrelevant to the constitutional issue of equality, as it would apply to all citizens as a class. In addressing under-inclusiveness, he cited the need to respect international comity
, thereby rendering impractical the extension of section 37(1) to govern non-citizens living abroad. The differences in the High Court and the Court of Appeal's approaches are summed up in the following table:
Tan Yock Lin has opined that the Court of Appeal was incorrect in dismissing over-inclusiveness on the ground that section 37(1) applies to all Singapore citizens as a class. Such reasoning amounts to the argument that class fairness is a tautology
, where so long as there is equality within the same class, it is considered fair. If this were the case, no classification would ever be over- or under-inclusive. Instead, Tan argues that the doctrine of reasonable classification is premised on the propriety of distinctions based on classes, and whether it is proper to treat those within the class differently from those outside. Tan also criticized the justification of under-inclusiveness purely on the basis of international comity. Whilst he accepts that the considerations of international comity "explain why the nationality criterion is sound", he questions the under-inclusion of the permanent resident
, an unexplained omission.
While equality jurisprudence primarily centres around a pledge of the protection of equal laws, laws frequently classify individuals out of necessity. Needless to say, the very idea of classification is premised on, and engenders, inequality. Therein lies the paradox of equality jurisprudence. The necessity of differentiation is even more paramount in modern society with its increasingly complicated problems. Joseph Tussman
and Jacobus tenBroek have proposed the doctrine of reasonable classification as the solution, whereby the legislation defines the class that includes all who are similarly situated for the purpose of the law and none who are not.
Two varieties of inequality violate the doctrine of reasonable classification: over-inclusiveness and under-inclusiveness. If a classification is over-inclusive, the net cast by the legislature catches a class of persons not contemplated as falling within the objectives of the Act. Conversely, an under-inclusive classification arises if the net cast does not catch a class of persons who clearly do fall within the mischief sought to be addressed. Tussman and tenBroek represent the two inequalities in a Venn diagram
, an adaptation of which is reproduced on the right. Between the two inequalities, over-inclusiveness is a more egregious violation of the equal protection provision in the Constitution, for it affects the "innocent bystander, the hapless victim of circumstance or association". In comparison, under-inclusiveness should not be fatal. The Court of Appeal in Taw Cheng Kong held that, keeping in mind practical considerations, "the enactment of a provision need not be seamless and perfect to cover every contingency". The legislature is reasonably entitled to address the mischief "in a piecemeal fashion", as the equal protection clause is not "a pedagogic requirement of the impracticable".
case amounted to discrimination against the persons eventually charged with drug trafficking. The Court found that there was a "perfectly rational nexus between entrapment operations and the socially desirable and laudable objective of containing the drug trade" as convicting state agents who carried out covert operations would result in illicit drug suppliers prospering and flourishing while enforcement agencies would "wither and perish". Further, the exercise of the Attorney-General's prosecutorial discretion
was an executive act which satisfied the rational nexus test and was therefore not in contravention of Article 12 of the Constitution.
In Yong Vui Kong v. Public Prosecutor
(2010), the Court of Appeal had to determine the validity of a differentiating factor prescribed by the legislature for distinguishing between different classes of offenders for sentencing
purposes. In that case, the differentiating factor was found in the Misuse of Drugs Act
("MDA"), which stipulated that an accused trafficking in more than 15 gram (0.529109431576679 oz) of diamorphine (heroin) would result in him or her facing a mandatory death penalty upon conviction. Following its previous decision in Nguyen Tuong Van
v. Public Prosecutor (2005), which had applied Ong Ah Chuan, the Court applied the rational nexus test and found that the 15-gram differentia bore a reasonable relation to the social object of the MDA. The Court also noted that the "quantity of addictive drugs trafficked is not only broadly proportionate to the quantity of addictive drugs brought onto the illicit market, but also broadly proportionate to the scale of operations of the drug dealer and, hence, broadly proportionate to the harm likely to be posed to society by the offender's crime." Although Taw Cheng Kong was not cited in this case, the test applied was substantially similar to that which it enunciated in Taw Cheng Kong.
(2009), the issue was whether the specific choice by the Collector of Land Revenue to compulsorily acquire
the land on which a Buddhist temple stood while leaving a nearby Hindu mission and a church untouched, was in violation of Article 12. As such, unlike in Public Prosecutor v. Taw Cheng Kong, it was not the law that was in question but improper enforcement of the law. Since there was no discriminatory classification in the legislation, but the issue was whether neutral legislation had been applied in a discriminatory manner, if the rational nexus test set out in Taw Cheng Kong was applied it would immediately be satisfied as the legislation would not treat different classes of persons differently.
Thus, in Eng Foong Ho the Court devised a modified rational nexus test to be applied where there has been a "normatively defective process of treatment". The question is whether there is a reasonable nexus between the state action and the objective of the law, on the assumption that the law itself does not violate Article 12, which the appellants in Eng Foong Ho conceded. On the facts, the answer lay in the reasons why the state had chosen to acquire the temple property and not those of the mission and the church, and whether the reasons showed that there was any discrimination against the appellants as members of the temple. The Court held that there had not been any discrimination, as the Collector of Land Revenue had valid reasons to make his decision. The Court further clarified that what is needed to be shown to violate the equal protection clause is "intentional and arbitrary discrimination", or "the existence of inequalities due to inadvertence or inefficiency" which are "on a very substantial scale". An example of the latter situation is that a one-off incident of undervaluation of property would not violate the equal protection clause, but an "intentional systematic undervaluation of property" would. Hence, this case provides a mechanism for dealing with instances where constitutional laws are unconstitutional in their application.
the rules and principles of public international law that have previously been received into the common law
. The Court of Appeal recognized a rule of customary international law
that had been received into the common law, that is, the presumption against extraterritoriality, and ascribed to Parliament the intent to uphold that rule for the purposes of construing a statutory provision.
Considering the statements made in the case by Yong C.J., Lim observed that "[a]n Act of Parliament would ordinarily apply within the territorial limits of the state, and thus would not normally be construed to apply to foreigners in respect of acts done by them outside the territorial limits of the state" and that "when it came to determining the rationality of the classification, the objective of the Act must be balanced against Parliament's intention to observe international comity".
The author went on to consider how the phrase international comity should be defined, observing that "it is often used by the United Kingdom courts to mean a rule or principle of (customary) international law, as opposed to a rule pertaining only to the common courtesy of nations". Finally, he argued that if this was the interpretation to be adopted, then Taw Cheng Kong "suggests that what the Singapore courts recognize as a customary rule of international law that has been received into the common-law could determine or condition the proper interpretation to be given to a statutory provision, or could at least be relied upon to determine the true intent of Parliament".
Lim noted that although the view held in Singapore appears to be that a country's laws are not presumed to apply extraterritorially, it might be desirable to include a general extraterritoriality clause. He derived support for this statement from Taw Cheng Kong, where the Court of Appeal expressed the following view:
towards statutory interpretation by providing that when a court is interpreting written law, an interpretation that promotes the purpose or object underlying the law is to be preferred to one that does not. Section 9A(3) goes on to state as follows:
Despite having observed that some cases had adopted a broad reading of section 9A(3), Goh noticed a concurrent line of cases which had sought to limit the type of extrinsic materials that might be referred to. One of these was the High Court decision in Taw Cheng Kong, in which Karthigesu J.A. laid down the following reasons for not relying on extrinsic material to interpret subsequent legislation:
However, Thio Li-ann
has expressed the view that the High Court judgment Rajeevan Edakalavan v. Public Prosecutor (1998) seems to indicate "a judicial cession of its [the court's] role to protect fundamental liberties". Noting that in Rajeevan it was said that "[t]he sensitive issues surrounding the scope of fundamental liberties should be raised through our representatives in Parliament who are the ones chosen by us to address our concerns", she opined that the statement was more appropriate to a jurisdiction premised on parliamentary supremacy
. On the other hand, since the Constitution is the supreme law of Singapore, the judiciary is empowered to strike down unconstitutional legislation, as the High Court's decision in Taw Cheng Kong indicates.
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...
which shaped the landscape of Singapore's constitutional law
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
. The earlier 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...
decision, Taw Cheng Kong v. Public Prosecutor, was the first instance in Singapore's history that a statutory provision was struck down as unconstitutional. The matter subsequently reached the Court of Appeal when the Public Prosecutor
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...
applied for a criminal reference for two questions to be considered. The questions were:
- whether section 37(1) of the ("PCA") was ultra viresUltra viresUltra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
the powers of the legislature on the ground that the legislature had, under section 6(3) of the , been divested of the power to legislate extraterritoriallyExtraterritorial jurisdictionExtraterritorial jurisdiction is the legal ability of a government to exercise authority beyond its normal boundaries.Any authority can, of course, claim ETJ over any external territory they wish...
; and - whether section 37(1) of the PCA was discriminatory against Singapore citizensSingaporean nationality lawSingaporean nationality law is derived from the Constitution of Singapore and is based on jus sanguinis and a modified form of jus soli...
and hence inconsistent with Article 12(1)Article 12 of the Constitution of SingaporeArticle 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...
of the (now the ).
In answering both questions in the negative, the Court of Appeal overturned the High Court's finding that the statute was unconstitutional. The Court of Appeal further clarified Singapore's stance on legislative plenary power
Plenary power
A plenary power or plenary authority is the separate identification, definition, and complete vesting of a power or powers or authority in a governing body or individual, to choose to act on a particular subject matter or area...
and expounded upon Article 12(1) of the Constitution, explaining that the promise of equality does not mean that all persons are to be treated equally, but simply that all persons in like situations will be treated alike. Drawing on foreign case law, the Court of Appeal further outlined the test to determine if a differentiating law falls foul of Article 12.
Facts
Eddie Taw Cheng Kong ("Taw") is a Singapore citizen, and was the Regional Manager (Asia Pacific) of the Government of Singapore Investment Corporation Pte. Ltd.Government of Singapore Investment Corporation
The Government of Singapore Investment Corporation Private Limited is a sovereign wealth fund established by the Government of Singapore in 1981 to manage Singapore's foreign reserves...
("GIC"). Based in Hong Kong, he had charge of equity portfolios in Hong Kong and the Philippines, and had authority to decide which companies to invest in on behalf of GIC.
Taw was charged with corruption in deals involving GIC and Rockefeller & Co. Inc. It was alleged that Taw, at the instigation of Kevin Lee, Managing Director of Rockefeller's Far East operations, had orchestrated the purchase by GIC of the Pioneer Hong Kong Fund, which was managed by Rockefeller. For each transaction, Lee was alleged to have paid Taw a sum of money. Taw was tried and convicted in the District Court
Subordinate Courts of Singapore
The Subordinate Courts of Singapore is one of the two tiers of the court system in Singapore, the other tier being the Supreme Court. The Subordinate Courts comprise the District and Magistrate Courts—both of which oversee civil and criminal matters—as well as specialised family, juvenile,...
of eight charges of corruption under section 6(a) read with section 37(1) of the Prevention of Corruption Act ("PCA"). Section 6(a) of the PCA provides as follows:
Section 37(1) of the PCA states:
Taw appealed to 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...
against his conviction on two main grounds. The first involved the admissibility of evidence
Admissible evidence
Admissible evidence, in a court of law, is any testimonial, documentary, or tangible evidence that may be introduced to a factfinder—usually a judge or jury—in order to establish or to bolster a point put forth by a party to the proceeding...
for his corruption, and, additionally, inconsistencies of such evidence. The second concerned constitutional issues. With regard to the evidential issue, the Court held that the trial judge made an error in accepting GIC's statements as admissible, and thus ordered Taw's convictions to be set aside.
Constitutional arguments before the High Court
In addition, Taw (the appellant) argued, first, that section 37(1) of the PCA was unconstitutional, and, secondly, that its enactment was ultra vires the legislative power of ParliamentParliament 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...
.
Section 37(1) of the PCA is ultra vires Parliament's legislative power
The appellant contended that "any law in Singapore which seeks to have extraterritorial effect is, by that virtue of that alone, unconstitutional". He raised instances of extraterritorialExtraterritorial jurisdiction
Extraterritorial jurisdiction is the legal ability of a government to exercise authority beyond its normal boundaries.Any authority can, of course, claim ETJ over any external territory they wish...
laws of Malaysia and India, but differentiated them from the Singapore position since there were express provisions in the constitutions of these jurisdictions providing for the extraterritorial reach of their legislatures, namely, Article 73(a) 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 Article 245(2) 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...
. Article 73(a) of the Malaysian Constitution states:
Article 245(2) of the Indian Constitution likewise provides that:
In contrast, the Singapore Constitution contains no similar provision. The appellant hence argued that "Parliament [was] bound by an inherent limitation on its powers so any legislation purporting to have extraterritorial effect must have been ultra vires the Constitution".
The appellant further highlighted that section 6 of the Republic of Singapore Independence Act ("RSIA"), which was enacted shortly after Singapore's independence from Malaysia, provides that Part IV of the Constitution of Malaysia ceased to have effect in Singapore. Since Part IV contains Article 73(a) – the extraterritoriality clause – the appellant argued that its exclusion meant that Singapore's Parliament was not empowered to make any law which had extraterritorial effect.
Section 37(1) of the PCA is discriminatory
The appellant also contended that he had been convicted under section 37(1) of the PCA which discriminated against him "as a Singapore citizen in derogation of his rights under Art 12 of the Constitution". Article 12(1) of the Constitution states: "All persons are equal before the law and entitled to the equal protection of the law."The appellant's argument rested on the alleged arbitrariness of the ambit of section 37(1), in that it employed citizenship as a criteria. He alleged this was most apparent "if an offence under the Act was committed by a non-citizen or permanent resident jointly with a Singapore citizen outside Singapore", as "only the Singapore citizen could be dealt with in respect of that offence, and not the non-citizen or permanent resident". Hence, the appellant argued that since section 37(1) "unfairly discriminates against him on the basis of citizenship", it must contravene Article 12 which provides that all persons, citizens and non-citizens alike, are equal. This rendered section 37(1) void according to Article 4 of the Constitution which provides:
Parliament had no legislative power to enact section 37(1) of the PCA
The High Court rendered its judgment on 9 January 1998. It accepted the appellant's assertion that Article 73(a) was an empowering provision. Hence since section 6(3) of the RSIA had clearly and unambiguously excluded Article 73(a) of the Malaysian Constitution from applying in Singapore following its independence from Malaysia, Parliament had disempowered itself from legislating extraterritorially. Applying this to the case, the Court held that Parliament had no legislative power to enact section 37(1) of the PCA.Section 37(1) violates the rights to equality and equal protection
In interpreting Article 12 of the Constitution the High Court paid homage to, and endorsed, the approach taken in the landmark case Ong Ah Chuan v. Public Prosecutor (1980), an appeal to the Privy CouncilJudicial 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...
when it was still Singapore's final court of appeal. In the case, the Privy Council held that "equality before the law and equal protection of the law require that like should be treated with like". The court further clarified that laws that differentiate between classes are valid if "the factor which the legislature adopts as constituting the dissimilarity in circumstances is not purely arbitrary but bears a reasonable relation to the social object of the law".
Following the approach in Ong Ah Chuan, Judge of Appeal M. Karthigesu, sitting as a judge of the High Court in Taw Cheng Kong, sought to succinctly express the reasonable classification test as a means to combat three forms of arbitrariness. This can be expressed as follows:
| Form of arbitrariness | Explanation of arbitrariness | Action to guard against form of arbitrariness |
|---|---|---|
| First form of arbitrariness | Arbitrary classification: there is no discernible basis of classification. | To guard against this form of arbitrariness, all persons being discriminated must share a common identifying mark which is not borne by those persons not discriminated against. |
| Second form of arbitrariness | Arbitrary treatment between persons in the same class. | To guard against this form of arbitrariness, all persons falling into a particular class must be treated the same way. |
| Third form of arbitrariness | Basis or rationale of classification is arbitrary. | To guard against this form of arbitrariness, the basis of classification must bear a reasonable relationship to the object of the executive action. |
High Court's test
Upon reviewing the lines of Indian and Malaysian cases before him, Karthigesu J.A. reformulated a three-stage test to determine whether a statute or section will contravene Article 12 of the Constitution. The judge's articulation of the test, premised on "elegance and simplicity", sought to address the three forms of arbitrariness as mentioned above. This test is described as follows, and is fully depicted by the diagram on the right:- Stage 1. Is the law discriminatory, in the sense that it prescribes different treatment amongst individuals?
- Stage 2. Is the discrimination founded on intelligible differentia? ("Intelligible differentia" is defined under the first form of arbitrariness.)
- Stage 3. Two further questions must be posed to ensure that the law is not arbitrary:
-
- (a) Are persons falling into the same class treated equally? If all the persons in the class are equally discriminated against, and all persons not discriminated against are equally not discriminated against, then the law does not offend this second order of arbitrariness.
- (b) Does the basis of discrimination bear a reasonable relation to the object of the statute? To answer this question, the following inquiries have to be undertaken:
- (i) What is the object of the statute?
- (ii) Is the basis of the discrimination a reasonable means of achieving the object?
Application of the High Court's test
The crux of the High Court's holding rested on stage 3(b), as illustrated in the table below. In analysing the constitutionality of the provision with regards to this portion of the reasonable classification test, the Court first ascertained the object of section 37(1) of the PCA. It subsequently considered if differentiation on the basis of citizenship was a reasonable means of attaining the objective.| Stage | Application |
|---|---|
| Stage 1 | section 37(1) of PCA is discriminatory. A person who has committed an offence under the Act will be criminally prosecuted, as compared to a person who has not. Hence the Court proceeded to the second stage. |
| Stage 2 | Singapore citizenship was considered by the Court to be an intelligible differentia, and hence the law is not arbitrary as there is a discernible classification between Singapore citizens and non-citizens or permanent residents Permanent residency Permanent residency refers to a person's visa status: the person is allowed to reside indefinitely within a country of which he or she is not a citizen. A person with such status is known as a permanent resident.... . Hence the Court proceeded to the third stage. |
| Stages 3(a) and (b) |
Section 37(1) passed stage 3(a). All Singapore citizens who have committed an offence under the Act will be prosecuted, while all non-citizens or permanent residents who have similarly committed an offence of corruption will be immune. The difficulty lay in stage 3(b), namely, whether the decision of the legislature to discriminate against Singapore citizens in the matters of corruption bore a reasonable relationship or rational nexus to the object of the Act. |
According to the parliamentary debates relating to the Prevention of Corruption Ordinance 1960, the PCA was originally enacted to eradicate corruption from Singapore's civil service
Singapore Civil Service
The Singapore Civil Service is the set of civil servants working for the Government of Singapore. Many of its principles were inherited from the administrative system left by the British Civil Service, as Singapore was once a British colony....
and fiduciaries in Singapore, and not corruption globally "irrespective of national boundaries". Section 37(1), however, was not part of the original PCA. It was added in an amendment to the Act in 1966. In this regard, the Court found it incorrect, as a matter of statutory interpretation
Statutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or...
, to "rely on earlier material to interpret subsequent legislation". Rather, it asserted the importance of looking at the amending legislation afresh.
Referring to the parliamentary material relating to the original Act and the subsequent addition of section 37(1), the Court found that section 37(1) was added to "address acts of corruption taking place outside Singapore but affecting events within it". To this end, it held that classification along the lines of citizenship was an unreasonable means of attaining the objective of section 37(1) of PCA, for it was both over-inclusive and under-inclusive. Legislation is over-inclusive if it catches a class of persons not originally contemplated as falling within the objective of the Act, and under-inclusive if it catches a class of persons who clearly do not fall within the mischief sought to be addressed by the Act. On the facts, section 37(1) was over-inclusive as a Singapore citizen who was now a permanent resident of a foreign country and employed there who received a bribe in a foreign currency from a foreign payor would be guilty of an offence under the Act. Conversely, it was simultaneously under-inclusive since a Singapore permanent resident or a foreigner working for the Government of Singapore
Government of Singapore
The Government of Singapore is defined by the Constitution of the Republic of Singapore to mean the Executive branch of government, which is made up of the President and the Cabinet of Singapore. Although the President acts in his personal discretion in the exercise of certain functions as a check...
who takes a trip outside Singapore to receive a bribe in Singapore dollars in relation to an act he will do in Singapore is not caught under the Act.
The Singapore permanent resident poses a greater threat to the integrity of the Civil Service than the Singapore citizen employed abroad. Yet, it is the latter who is captured and not the former. Therefore, the High Court felt that classification according to citizenship was not a reasonable means of attaining the objectives of the PCA, for the latter class of persons who posed a larger threat would not be caught. Accordingly, section 37(1) was unconstitutional. The "strength of the nexus" between the objective of the PCA and the classification, along the lines of citizenship, was "insufficient" to justify the derogation from the constitutional promise of equality.
Issues before the Court of Appeal
Following the High Court's decision, the Attorney-GeneralAttorney-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...
, in his capacity as the Public Prosecutor, applied pursuant to section 60 of the Supreme Court of Judicature Act for a criminal reference for two questions of law to be considered 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...
. The questions were:
- whether section 37(1) of the PCA was ultra vires the powers of the legislature on the ground that the legislature had, under section 6(3) of the RSIA, been divested of the power to legislate extraterritorially; and
- whether section 37(1) of the PCA was discriminatory against Singapore citizens and hence inconsistent with Article 12(1) of the Constitution.
Parliament has power to legislate extraterritorially
The Court of Appeal held that section 6(3) of the RSIA had not divested the legislature of its power to legislate extraterritorially on two grounds.Possession of plenary powers by sovereign states
First, the Court clarified that extraterritorial provisions were "inserted to dispel any doubts over the legislative capacity of the respective legislatures". However, such insertions were actually unnecessary since it was trite law that a dominionDominion
A dominion, often Dominion, refers to one of a group of autonomous polities that were nominally under British sovereignty, constituting the British Empire and British Commonwealth, beginning in the latter part of the 19th century. They have included Canada, Australia, New Zealand, Newfoundland,...
or colony
Crown colony
A Crown colony, also known in the 17th century as royal colony, was a type of colonial administration of the English and later British Empire....
had extraterritorial legislative powers. A fortiori
A fortiori argument
The Latin phrase ' denotes "argument 'from [the] stronger [reason]'." For example, if it has been established that a person is deceased, then one can, with equal or greater certainty, argue that the person is not breathing.-Usage:...
, a sovereign state's extraterritorial legislative powers should be undisputed. Therefore, the Court was of the opinion that when Singapore gained independence on 9 August 1965, it acquired the attributes of sovereignty, and Parliament was bestowed with full plenary power
Plenary power
A plenary power or plenary authority is the separate identification, definition, and complete vesting of a power or powers or authority in a governing body or individual, to choose to act on a particular subject matter or area...
s to enact legislation. These powers include the power to enact extraterritorial laws and enforce them in local courts.
Parliament had subsequently used these plenary powers to enact the Constitution (Amendment) Act 1965 and the RSIA on 22 December 1965. This served to eliminate any doubt as to the legislative powers of the Singapore Parliament because section 5 of the RSIA transferred all the plenary legislative powers previously possessed by the Parliament of Malaysia
Parliament of Malaysia
The Parliament of Malaysia is the national legislature of Malaysia, based on the Westminster system. The bicameral parliament consists of the House of Representatives and the Senate. The King as the Head of State is the third component of Parliament....
to the Singapore Parliament. This would necessarily have included the power to legislate extraterritorially. This was not negated by section 6 of the RSIA for two reasons. First, with the plenary powers of the Malaysian legislature vested in it under section 5, Parliament "did not have to depend on any express conferment of extraterritorial powers". Secondly, section 6 was concerned with provisions in the Malaysian Constitution which were either "preserved or excluded because Parliament in 1965 did not have time to enact a new Constitution". It could not have any effect on section 5 of the RSIA which was not a provision of the Malaysian Constitution.
Article 73(a) not an empowering provision
As the plenary legislative powers of the Parliament were sufficient to grant extraterritorial legislative powers to the Parliament, the Court declined to pronounce whether Article 73(a) was an empowering provision. However, it indicated on an obiterObiter 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...
basis that had it been necessary to do so, it would have accepted the Attorney-General's alternate submission that Article 73(a) of the Malaysian Constitution was never intended to be an empowering provision.
If Article 73(a) was intended to be an empowering provision, its exclusion would have disempowered the Parliament from legislating within Singapore, an absurd result which could not have been intended. Instead, the Court held that the provision was a provision regulating the "relations between the Federation and the States", as the title of Part VI of the Malaysian Constitution states. This was supported by the text found in the marginal note ("extent of federal and state laws") and the relevant chapter ("distribution of legislative powers"). Additionally, the opening words to Article 73(a) – "In exercising the legislative powers conferred on it by this Constitution ..." – already indicated that it was presupposed
Presupposition
In the branch of linguistics known as pragmatics, a presupposition is an implicit assumption about the world or background belief relating to an utterance whose truth is taken for granted in discourse...
that extraterritorial powers had been conferred. As Article 73(a) was not an empowering provision, it had been excluded merely because it was irrelevant to the RSIA and it did not disempower the Parliament of its extraterritorial legislative powers.
Section 37(1) of the PCA consistent with rights to equality and equal protection
In answering the second question, the Court of Appeal considered two main issues, namely, the concept of equality and the test to determine if a statute or executive act violates Article 12.Concept of equality
In construing the concept of equality in Article 12, the Court held that equality does not mean that all persons are to be treated equally, but simply that all persons in like situations will be treated alike. Chief JusticeChief Justice
The Chief Justice in many countries is the name for the presiding member of a Supreme Court in Commonwealth or other countries with an Anglo-Saxon justice system based on English common law, such as the Supreme Court of Canada, the Constitutional Court of South Africa, the Court of Final Appeal of...
Yong Pung How
Yong Pung How
Yong Pung How, DUT . He was the former Chief Justice of Singapore, serving from 1990 to 2006. Prior to his judicial career, he was a lawyer, banker and senior government official...
arrived at this conclusion by considering the history that underpinned the notion of equality. The Court traced the origin of Article 12 back to the 40th 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...
which reads, "To none will we sell, to none will we deny, to none will we delay right or justice."
Subsequently, the Court cited with approval the Malaysian case Public Prosecutor v. Su Liang Yu (1976), that equality referred to the administration of equal justice. Also, the Privy Council case Ong Ah Chuan was quoted again, as it was in the High Court, as Yong C.J. referenced Lord Diplock
Kenneth Diplock, Baron Diplock
William John Kenneth Diplock, Baron Diplock, KC was an English judge and Law Lord.-Early life:Born the son of a Croydon solicitor, he attended Whitgift School and University College, Oxford, where he read chemistry and was later to become an Honorary Fellow.-Career:Diplock was called to the bar by...
's observation that "... Art 12(1) of the Constitution assures ... the individual ... the right to equal treatment with other individuals in similar circumstances ...".
Court of Appeal's test
Clarifying the law on equality and equal protection, the Court adopted the approach proposed by Supreme CourtFederal 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...
Judge Mohamed Azmi Mohamed
Mohamed Azmi Mohamed
- References :...
in Malaysian Bar v. Government of Malaysia (1986). Whilst similar to the test expressed by Karthigesu J.A. in the court below, this approach seemed to streamline his first two forms of arbitrariness into the first limb of its test. Thus, according to the Court of Appeal, the test for validity under Article 12 of the Constitution is as follows:
- Stage 1. Does the law differentiate in that it prescribes different treatment amongst individuals?
- Stage 2. If the law differentiates, is it based on a reasonable classification? To answer this, the following have to be considered:
-
- (a) Is the classification founded on an intelligible differentia which distinguishes persons that are grouped together from others that are left out of the group?
- (b) Does the differentia bear a rational relation to the object sought to be achieved by the law in question?
On a semantic
Semantics
Semantics is the study of meaning. It focuses on the relation between signifiers, such as words, phrases, signs and symbols, and what they stand for, their denotata....
point, Yong C.J. cautioned against an indiscriminate use of the word discrimination, proffering instead that the term differentiation be used unless the law fails the three-stage test.
Also, before applying this test in considering if a piece of legislation contravenes Article 12, there needs to be a presumption that an impugned law is constitutional. This presumption of constitutionality
Presumption of constitutionality
A presumption of constitutionality shifts the burden of proof from the government to the citizen, requiring them to prove that a statute is unconstitutional....
stems from the wide power of classification which the legislature has to make laws which operate differently as regards different groups of persons, so as to give effect to its policies. An academic, Tan Yock Lin, has acknowledged the benefit of this presumption as it "tells the challenger what he must do". The person challenging the constitutionality of a legislative or executive classification must expect to "furnish cogent and compelling evidence of unequal treatment". Postulating examples will not be sufficient for the purposes of rebuttal. However, Tan has pointed out that this results in additional indeterminacy for it is not clear what level of cogency will satisfy the court of the viability of the challenge.
Application of the Court of Appeal's test
The Court of Appeal ultimately found that section 37(1) of the PCA did not offend Article 12(1). Whilst the decision was similarly made at the "rational nexus" limb of stage 3 of its test, the Court fundamentally differed from the High Court in construing the objective of section 37(1). It viewed the section as "capable of capturing all corrupt acts by Singapore citizens outside Singapore", whereas the High Court constrained its ambit to Singapore.Having established this expansive objective as the starting point, Yong C.J. dismissed the notion that the over- and under-inclusiveness of section 37(1) meant it was unconstitutional. In considering over-inclusiveness, he considered the argument that the "net cast by the legislature" would include a person whom the provision was not intended to catch, such as a Singapore citizen who is a foreign permanent resident, employed in the foreign country by the foreign government, receiving a bribe paid in foreign currency by a foreign payor. He held, however, that such alleged over-inclusiveness was irrelevant to the constitutional issue of equality, as it would apply to all citizens as a class. In addressing under-inclusiveness, he cited the need to respect international comity
Comity
In law, comity specifically refers to legal reciprocity—the principle that one jurisdiction will extend certain courtesies to other nations , particularly by recognizing the validity and effect of their executive, legislative, and judicial acts...
, thereby rendering impractical the extension of section 37(1) to govern non-citizens living abroad. The differences in the High Court and the Court of Appeal's approaches are summed up in the following table:
| Issue | High Court | Court of Appeal |
|---|---|---|
| Objective of section 37(1) | To address acts of corruption taking place outside Singapore but affecting events within it, particularly within the civil service. | To capture all corrupt acts by Singaporeans, including those outside Singapore. |
| Over-inclusiveness | Yes, as section 37(1) captures acts that would arguably not affect events within Singapore, such as acts committed by Singapore citizens residing in foreign countries. | No, as it applies equally to all citizens as a class. |
| Under-inclusiveness | Yes, as section 37(1) does not capture acts affecting events within Singapore by non-citizens living in Singapore. | Not applicable, given the necessity to respect international comity. |
Tan Yock Lin has opined that the Court of Appeal was incorrect in dismissing over-inclusiveness on the ground that section 37(1) applies to all Singapore citizens as a class. Such reasoning amounts to the argument that class fairness is a tautology
Tautology (rhetoric)
Tautology is an unnecessary or unessential repetition of meaning, using different and dissimilar words that effectively say the same thing...
, where so long as there is equality within the same class, it is considered fair. If this were the case, no classification would ever be over- or under-inclusive. Instead, Tan argues that the doctrine of reasonable classification is premised on the propriety of distinctions based on classes, and whether it is proper to treat those within the class differently from those outside. Tan also criticized the justification of under-inclusiveness purely on the basis of international comity. Whilst he accepts that the considerations of international comity "explain why the nationality criterion is sound", he questions the under-inclusion of the permanent resident
Permanent residency
Permanent residency refers to a person's visa status: the person is allowed to reside indefinitely within a country of which he or she is not a citizen. A person with such status is known as a permanent resident....
, an unexplained omission.
While equality jurisprudence primarily centres around a pledge of the protection of equal laws, laws frequently classify individuals out of necessity. Needless to say, the very idea of classification is premised on, and engenders, inequality. Therein lies the paradox of equality jurisprudence. The necessity of differentiation is even more paramount in modern society with its increasingly complicated problems. Joseph Tussman
Joseph Tussman
Joseph Tussman 4 December 1914—21 October 2005) was an American educator. He was chair of the philosophy department at University of California, Berkeley, a prominent educational reformer, and a key figure in the campus controversy over the 1950s loyalty oath....
and Jacobus tenBroek have proposed the doctrine of reasonable classification as the solution, whereby the legislation defines the class that includes all who are similarly situated for the purpose of the law and none who are not.
Two varieties of inequality violate the doctrine of reasonable classification: over-inclusiveness and under-inclusiveness. If a classification is over-inclusive, the net cast by the legislature catches a class of persons not contemplated as falling within the objectives of the Act. Conversely, an under-inclusive classification arises if the net cast does not catch a class of persons who clearly do fall within the mischief sought to be addressed. Tussman and tenBroek represent the two inequalities in a Venn diagram
Venn diagram
Venn diagrams or set diagrams are diagrams that show all possible logical relations between a finite collection of sets . Venn diagrams were conceived around 1880 by John Venn...
, an adaptation of which is reproduced on the right. Between the two inequalities, over-inclusiveness is a more egregious violation of the equal protection provision in the Constitution, for it affects the "innocent bystander, the hapless victim of circumstance or association". In comparison, under-inclusiveness should not be fatal. The Court of Appeal in Taw Cheng Kong held that, keeping in mind practical considerations, "the enactment of a provision need not be seamless and perfect to cover every contingency". The legislature is reasonably entitled to address the mischief "in a piecemeal fashion", as the equal protection clause is not "a pedagogic requirement of the impracticable".
Applications of the rational nexus test
The rational nexus test was applied in Mohamed Emran bin Mohamed Ali v. Public Prosecutor (2008), in which the High Court was faced with the issue of whether the failure to prosecute drug enforcement authorities in an entrapmentEntrapment
In criminal law, entrapment is conduct by a law enforcement agent inducing a person to commit an offense that the person would otherwise have been unlikely to commit. In many jurisdictions, entrapment is a possible defense against criminal liability...
case amounted to discrimination against the persons eventually charged with drug trafficking. The Court found that there was a "perfectly rational nexus between entrapment operations and the socially desirable and laudable objective of containing the drug trade" as convicting state agents who carried out covert operations would result in illicit drug suppliers prospering and flourishing while enforcement agencies would "wither and perish". Further, the exercise of the Attorney-General's prosecutorial discretion
Enforcement discretion
Selective enforcement is the ability that executors of the law have to select those against whom they want to enforce the law...
was an executive act which satisfied the rational nexus test and was therefore not in contravention of Article 12 of the Constitution.
In 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), the Court of Appeal had to determine the validity of a differentiating factor prescribed by the legislature for distinguishing between different classes of offenders for sentencing
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
purposes. In that case, the differentiating factor was found in 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...
("MDA"), which stipulated that an accused trafficking in more than 15 gram (0.529109431576679 oz) of diamorphine (heroin) would result in him or her facing a mandatory death penalty upon conviction. Following its previous decision in Nguyen Tuong Van
Van Tuong Nguyen
Van Tuong Nguyen baptised Caleb, was an Australian from Melbourne, Victoria convicted of drug trafficking in Singapore...
v. Public Prosecutor (2005), which had applied Ong Ah Chuan, the Court applied the rational nexus test and found that the 15-gram differentia bore a reasonable relation to the social object of the MDA. The Court also noted that the "quantity of addictive drugs trafficked is not only broadly proportionate to the quantity of addictive drugs brought onto the illicit market, but also broadly proportionate to the scale of operations of the drug dealer and, hence, broadly proportionate to the harm likely to be posed to society by the offender's crime." Although Taw Cheng Kong was not cited in this case, the test applied was substantially similar to that which it enunciated in Taw Cheng Kong.
Modified test in improper enforcement cases
In Eng Foong Ho v. Attorney-GeneralEng Foong Ho v. Attorney-General
Eng Foong Ho v. Attorney-General is the name of two cases of the Singapore courts, a High Court decision delivered in 2008 and the 2009 judgment by the Court of Appeal...
(2009), the issue was whether the specific choice by the Collector of Land Revenue to compulsorily acquire
Eminent domain
Eminent domain , compulsory purchase , resumption/compulsory acquisition , or expropriation is an action of the state to seize a citizen's private property, expropriate property, or seize a citizen's rights in property with due monetary compensation, but without the owner's consent...
the land on which a Buddhist temple stood while leaving a nearby Hindu mission and a church untouched, was in violation of Article 12. As such, unlike in Public Prosecutor v. Taw Cheng Kong, it was not the law that was in question but improper enforcement of the law. Since there was no discriminatory classification in the legislation, but the issue was whether neutral legislation had been applied in a discriminatory manner, if the rational nexus test set out in Taw Cheng Kong was applied it would immediately be satisfied as the legislation would not treat different classes of persons differently.
Thus, in Eng Foong Ho the Court devised a modified rational nexus test to be applied where there has been a "normatively defective process of treatment". The question is whether there is a reasonable nexus between the state action and the objective of the law, on the assumption that the law itself does not violate Article 12, which the appellants in Eng Foong Ho conceded. On the facts, the answer lay in the reasons why the state had chosen to acquire the temple property and not those of the mission and the church, and whether the reasons showed that there was any discrimination against the appellants as members of the temple. The Court held that there had not been any discrimination, as the Collector of Land Revenue had valid reasons to make his decision. The Court further clarified that what is needed to be shown to violate the equal protection clause is "intentional and arbitrary discrimination", or "the existence of inequalities due to inadvertence or inefficiency" which are "on a very substantial scale". An example of the latter situation is that a one-off incident of undervaluation of property would not violate the equal protection clause, but an "intentional systematic undervaluation of property" would. Hence, this case provides a mechanism for dealing with instances where constitutional laws are unconstitutional in their application.
Customary international law rules
C.L. Lim has opined that Taw Cheng Kong stands as authority for the proposition that the Singapore courts will apply in domestic lawMunicipal 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 rules and principles of public international law that have previously been received into the 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...
. The Court of Appeal recognized a rule 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...
that had been received into the common law, that is, the presumption against extraterritoriality, and ascribed to Parliament the intent to uphold that rule for the purposes of construing a statutory provision.
Considering the statements made in the case by Yong C.J., Lim observed that "[a]n Act of Parliament would ordinarily apply within the territorial limits of the state, and thus would not normally be construed to apply to foreigners in respect of acts done by them outside the territorial limits of the state" and that "when it came to determining the rationality of the classification, the objective of the Act must be balanced against Parliament's intention to observe international comity".
The author went on to consider how the phrase international comity should be defined, observing that "it is often used by the United Kingdom courts to mean a rule or principle of (customary) international law, as opposed to a rule pertaining only to the common courtesy of nations". Finally, he argued that if this was the interpretation to be adopted, then Taw Cheng Kong "suggests that what the Singapore courts recognize as a customary rule of international law that has been received into the common-law could determine or condition the proper interpretation to be given to a statutory provision, or could at least be relied upon to determine the true intent of Parliament".
Lim noted that although the view held in Singapore appears to be that a country's laws are not presumed to apply extraterritorially, it might be desirable to include a general extraterritoriality clause. He derived support for this statement from Taw Cheng Kong, where the Court of Appeal expressed the following view:
Statutory interpretation
Goh Yihan has considered the High Court's decision in Taw Cheng Kong in relation to the issue of the type of extrinsic materials that may be referred to by courts when interpreting legislation, according to the section 9A of the Interpretation Act. Section 9A(1) requires courts to adopt a purposive approachPurposive theory
Purposive theory is a theory of statutory interpretation that holds that common law courts should interpret legislation in light of the purpose behind the legislation. Purposive theory stands in contrast to textualism or statutory derogation, two other prominent common law interpretation...
towards statutory interpretation by providing that when a court is interpreting written law, an interpretation that promotes the purpose or object underlying the law is to be preferred to one that does not. Section 9A(3) goes on to state as follows:
Despite having observed that some cases had adopted a broad reading of section 9A(3), Goh noticed a concurrent line of cases which had sought to limit the type of extrinsic materials that might be referred to. One of these was the High Court decision in Taw Cheng Kong, in which Karthigesu J.A. laid down the following reasons for not relying on extrinsic material to interpret subsequent legislation:
- Sections 9A(3)(b) and 9A(3)(c) of the Interpretation Act contemplate the use of explanatory statementsPreambleA preamble is an introductory and expressionary statement in a document that explains the document's purpose and underlying philosophy. When applied to the opening paragraphs of a statute, it may recite historical facts pertinent to the subject of the statute...
to a tabled billBill (proposed law)A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
or a speech made by a minister on the occasion of the motionMotion (legal)In law, a motion is a procedural device to bring a limited, contested issue before a court for decision. A motion may be thought of as a request to the judge to make a decision about the case. Motions may be made at any point in administrative, criminal or civil proceedings, although that right is...
for the second reading of the bill as interpretive aids. However, they do not permit reference to other explanatory statements or speeches. The statements the court may refer to under these provisions are strictly the statements concerning the bill in question. - Section 9A(3)(d) allows the court to consider "any relevant material in any official record of debates in Parliament". Under this provision, material relating to the original Act may be looked at in interpreting an amendment. However, it would not be wise to set a precedent for the unregulated use of original material in construing a subsequent amendment. After all, it is not a rule that Parliament must legislate consistently with past legislation. On the contrary, subsequent legislation must, where inconsistent with its predecessor, prevail over it. The objective of the court is not to construe all legislation as if Parliament was in some way bound by its intentions when it first passed the Act. It is to construe why Parliament has seen fit to amend that Act in the light of the inadequacies that the passage of time has revealed or new needs carried by the tide of progress.
- The first duty of the court is to determine whether the amendment was intended to be consistent with the intentions of Parliament in passing the original Act. Only if the court is satisfied if that is the case may it read them as one.
Judicial role in constitutional interpretation
As of 2009, the High Court's decision in Taw Cheng Kong was the only case in Singapore where a statutory provision had been struck down as unconstitutional. Although overturned on appeal, the case illustrates the power that the judiciary wields and its role in safeguarding the Constitution.However, Thio Li-ann
Thio Li-ann
Thio Li-ann is a Singaporean law professor at the National University of Singapore. She was educated at the University of Oxford, Harvard Law School and the University of Cambridge. In January 2007, she was appointed a Nominated Member of Parliament in Singapore's 11th Parliament.-Early life and...
has expressed the view that the High Court judgment Rajeevan Edakalavan v. Public Prosecutor (1998) seems to indicate "a judicial cession of its [the court's] role to protect fundamental liberties". Noting that in Rajeevan it was said that "[t]he sensitive issues surrounding the scope of fundamental liberties should be raised through our representatives in Parliament who are the ones chosen by us to address our concerns", she opined that the statement was more appropriate to a jurisdiction premised on parliamentary supremacy
Parliamentary sovereignty
Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...
. On the other hand, since the Constitution is the supreme law of Singapore, the judiciary is empowered to strike down unconstitutional legislation, as the High Court's decision in Taw Cheng Kong indicates.
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). - Taw Cheng Kong v. Public Prosecutor [1998] 1 S.L.R.(R.) 78, High CourtHigh Court of SingaporeThe 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...
(Singapore) ("Taw Cheng Kong (H.C.)"). - Public Prosecutor v. Taw Cheng Kong [1998] 2 S.L.R.(R.) 489, 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) ("Taw Cheng Kong (C.A.)"). - Nguyen Tuong VanVan Tuong NguyenVan Tuong Nguyen baptised Caleb, was an Australian from Melbourne, Victoria convicted of drug trafficking in Singapore...
v. Public Prosecutor [2005] 1 S.L.R.(R.) 103, C.A. (Singapore). - Mohamed Emran bin Mohamed Ali v. Public Prosecutor [2008] 4 S.L.R.(R.) 411, H.C. (Singapore)..
- 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. 489, C.A. (Singapore).