Symposium: The Coming of Age of Constitutional Judicial Review in Singapore: The Advent of “Proportionality”?

Swati Jhaveri

University of Oxford

In the opening post for this Symposium, Yaniv Roznai describes three kinds of landmark judgments, all of which involve the courts displacing the exercise of constituent authority and power.  These judgments trigger an existential debate about the courts and their legitimacy and claim to authority when acting in this way.

The existential questions that arise in Singapore are vastly different.  As Melissa Crouch’s post for this Symposium highlights, discussions on ‘landmark’ judgments typically presume the existence of a certain kind of polity and a particular dominant (or at least prominent) placement of the courts within the overall separation of powers framework in that polity.  The courts in Singapore – relative to their common law counterparts and apex constitutional courts outside of common law systems – have yet to strike down legislation for being unconstitutional. 

This statistic is not the result of some monolithically deferential set of constitutional law principles.  There have been significant shifts in the jurisprudence of the courts in the area of judicial review – in a way that increases the role of the judiciary in the public law space.  The statistic should also not automatically lead to the conclusion that the courts are not an important or frequently used fora for the deliberation of weighty constitutional issues. In the last ten years, the courts have had to consider a challenge by a homosexual couple of the constitutionality of a provision of the Penal Code restricting homosexual conduct; a challenge by a member of an opposition political party of the constitutional vires of a loan made by the executive to an international funding body; a challenge by members of the Hindu religion of a ban on the use of musical instruments during an annual religious procession; a challenge of the absence of a by-election on the vacation of a seat in the group representation constituency; challenges to the constitutionality of constitutional amendments relating to the elected presidency, adjudication of the question of when courts can adopt a rectifying construction of legislation, a challenge of the constitutionality of holding general elections in 2020 during the coronavirus pandemic implicating once more the ‘right to vote’ in the courts, the constitutionality of the mode of carrying out the death penalty and challenges of correction directions issued pursuant to the new Protection from Online Falsehoods and Manipulation Act 2019.. 

Landmark cases in Singapore are those that have involved the adjudication of constitutional issues of significance and which have advanced important constitutional law principles, in a way that adds to the constitutional architecture of Singapore beyond the text of the Constitution.  And, in advancing constitutional law, the courts have imposed obligations and duties on the Executive and Parliament.  For example, while an applicant was unsuccessful in challenging the constitutionality of the executive’s decision not to call a by-election on the vacation of a parliamentary seat for that constituency (because of the technical rules on standing), the Court of Appeal did establish that the executive was obliged to call a by-election as a matter of constitutional interpretation. 

It is against this backdrop that the case discussed in this post needs to be analysed.  It will demonstrate that judicial power in Singapore is exercised in the context of a much more finely tuned balance in the separation of powers.  In addition, the courts are constantly re-balancing that power in their favour.  This is not with a view to being dominant on the constitutional landscape.  The separation of powers is premised not on the supremacy of any branch but, instead, on the idea of co-equality and balance between the two branches.  The case concerns the advent of a form of proportionality analysis in Singapore.

In the case of Wham Kwok Ham Jolovan v Public Prosecutor [2020] SGCA 111 decided on 6 November 2020, the Court of Appeal had to consider whether Section 16(1)(a) of the Public Order Act was a constitutionally valid derogation from Article 14 of the Constitution.  Article 14 confers on Singapore citizens the right to, inter alia, “assemble peaceably and without arms”.   Article 14(2)(b) allows such restrictions as Parliament considers “necessary or expedient” in the interests of the security of Singapore or for public order.  Section 16(1)(a) of the Public Order Act restricts a public assembly or procession in respect of which no permit has been granted by the Commissioner of Police.  The Court concluded that the provisions of the Act were constitutional.  However, its reasoning is of vital importance for anyone considering the future of constitutional judicial review in Singapore.  The Court of Appeal proposed the introduction of a structured test for assessing the constitutionality of legislation that is far more advanced than the bare rationality review utilised by the courts thus far. 

The applicant in the case held a public assembly in contravention of Section 16(1)(a) of the Public Order Act and was charged under the relevant provision of the Act.  During the course of the criminal proceedings, the applicant challenged the constitutionality of the Public Order Act with three arguments.  First, a person who holds a public assembly without a permit commits a criminal offence even if the decision to refuse the permit was made unconstitutionally.  In this way, a person’s constitutional rights are subject to the Commissioner’s decision on whether or not to grant a permit and a person has no remedy against any alleged abuse of power by the Commissioner of Police in refusing a permit.  Second, in failing to provide a remedy, the Act gives the Commissioner unfettered discretion to constrain a citizen’s rights under Article 14 of the Constitution.  Finally, the applicant argued that a citizen’s constitutional right under Article 14 was only exercisable once they were permitted to do so by the Commissioner of Police and this went beyond a ‘restriction’.  This case is ‘landmark’ for three significant reasons.

Recognition of a Role for the courts

First, the applicant was granted leave on the basis that the court had never considered the scope of Articles 14(1)(b) and 14(2)(b) of the Constitution before nor ruled on the constitutionality of Section 16(1)(a) of the Public Order Act.  This is important because of the wording of Article 14(2) of the Constitution.  Some have previously argued that this wording – restrictions may be imposed as Parliament considers necessary  and expedient – mean that courts cannot reassess the assessment made by Parliament.  Earlier cases – most notable Chee Siok Chin & Others v Minister for Home Affairs & Anor [2006 ] 1 SLR(R) 582 - had confirmed this reading of the wording.

The Court of Appeal’s decision to adjudicate on the matter indicates that it was not going to readily accept this reading of Article 14(2) and the implications it had for any judicial assessment of the constitutionality of legislation.  The Court of Appeal concluded that to satisfy the requirements of Article 14(2) it is not enough to just ask whether the restriction was contained in an Act of Parliament.  Such an approach would vacate the right under Article 14(1)(b) of any content since there would be nothing to restrict Parliament’s powers.  Parliament might have the primary power in deciding whether a derogation from a right is necessary or expedient, but the courts have a secondary role in reviewing any derogation.  While this may seem routine business in other jurisdictions, it is a marked departure from the earlier approach of the courts in Singapore, where the court concluded that its sole task was to ascertain whether the legislation in question came within the purview of the range of permissible restrictions under Article 14(2).  In Jolovan Wham, the Court of Appeal went further in holding that the court’s role was to consider whether the legislative derogation was objectively something that Parliament thought was necessary and expedient and whether Parliament could objectively have arrived at this conclusion.

Departing from the Presumption of Constitutionality

In the earlier case of Chee Siok Chin the Court held that there is a presumption of constitutionality that should not be ‘lightly displaced’ by the courts when considering the constitutionality of such legislation.  The Court of Appeal in Jolovan Wham notably registered their ‘disagreement’ with this, holding that the presumption of constitutionality does not ‘determine or answer whether [a] legislative derogation falls within the scope of Article 14(2)’.  To rely on this presumption would involve presuming exactly what needs to be considered in a constitutional challenge.  The court confirmed that ‘while it is undeniably Parliament that acts to derogate from the constitutional right for one of the purposes under Article 14(2)(b), it is unequivocally for the judiciary to determine whether that derogation falls within the relevant purpose”.  This is a seismic shift in the court’s approach to the presumption of constitutionality, which has thus far been relied on in a number of cases.  The departure from it in this case, signals the possibility of a more general departure from it in the context of cases of judicial review.  How far the courts will depart from it will need to be clarified and confirmed in future cases.  What can be noted at this stage, however, is that the presumption vacates judicial review of any impact.   

The Advent of Proportionality

Proportionality review has been a mainstay in constitutional courts for decades.  There is no longer an existential question in those jurisdictions on its utility.  However, common law systems have struggled with the deployment of proportionality review.  This is true in common law systems like Australia and England.  The courts in Singapore have traditionally rejected proportionality as the basis for constitutional review on multiple occasions, largely on the basis that it is not suitable for the jurisdiction, being a construct of European jurisprudence. When pushed, the courts have sometimes held that any proportionality review could, at most, consist of a broad rationality-type review. However, even this idea of subsuming any such analysis within irrationality has met with some judicial pushback. 

In Jolovan Wham the Court of Appeal set out a three-step framework to assist the courts in deciding on the question of constitutionality.  First, the courts must assess whether the legislation does in fact restrict the right in question.  Second, if there is a restriction, the courts must consider whether that restriction is ‘necessary or expedient’ in the interests of the purposes set out in Article 14(2).  Finally, the court must analyse whether the restriction falls within the relevant purpose set out in Article 14(2), by checking if there is a nexus between the purpose of the legislation and one of the permitted purposes.  For this, there must be a balance between the right and the reasons for derogating from that right.  Interestingly, the Court of Appeal did not refer to ‘proportionality’ when setting out this framework.  This might be because it does differ from typical proportionality analysis in a number of important ways.  The three-stage framework set out by the courts contains some elements of the more typical version of the proportionality test but some components are absent.  While some may be underwhelmed by the three-stage framework it is important to understand that it is a significant development from a basic rationality review, especially where such review is backed by a presumption of constitutionality.  It is the composite of the three components of the case discussed here that proves the importance of this case.

Judicial power in Singapore involves the use of a much more subtle exercise of that authority.  The courts are increasingly robust in utilising judgments to set out the meta constitutional principles that inform judicial review, set out and establish frameworks and constitutional principles to structure judicial review and establish constitutional benchmarks for Parliament and the Executive to follow. The development and evolution of constitutional law principles is likely to be a recurrent theme in cases going forward, especially as more individuals are turning to the courts, demonstrating “an increase in the public consciousness vis-à-vis the reviewability of decisions made by public authorities and the checking function played by the courts against executive excess”.

Swati Jhaveri is a DPhil Candidate at the Faculty  of Law at the University of Oxford.

Suggested citation: Swati Jhaveri, ‘The Coming of Age of Constitutional Judicial Review in Singapore: The Advent of “Proportionality”?’ IACL-AIDC Blog (17 December 2020) https://blog-iacl-aidc.org/constitutional-landmark-judgments-in-asia/2020/12/17/the-coming-of-age-of-constitutional-judicial-review-in-singapore-the-advent-of-proportionality