2012: Constitutionally speaking

2011 was a watershed year in the politics of Singapore.  With the General Elections and Presidential Elections sending strong signals to the ruling PAP and with the empowering effect of social media, the scene was set for an interesting 2012.

Much has happened in the political arena.  The PAP would probably place emphasis on the National Conversation as a major political highlight.  Most citizens would probably remember this year as the year of sex in politics and the civil service.  I am sure there must be plenty of other mainstream and social media perspectives on the year that has just whizzed past us.  I don't plan to cover the same ground.  Perhaps a survey of Constitutional developments might be of some interest.

From a Constitutional standpoint, this has been an interesting year.  There have been some developments in the law and not all of them are positive from the perspective of citizens' rights. 

THE HOUGANG BY-ELECTION CASE

This was a case that was waiting to happen.  There have been several instances in the past when the ruling PAP has avoided by-elections.  Ever since the dramatic loss of the Anson seat to the Workers' Party in 1981, the default mode of the PAP has been to resist any calls for a by-election when a seat became vacant. 

Prior to the Hougang by-election case, there was one attempted Constitutional challenge when the Bukit Batok seat fell vacant in 2008 due to the death of Dr Ong Chit Chung.  A claim was filed in Court and eventually withdrawn when the claimant (a Bukit Batok resident) decided not to proceed with the case after his lawyer J.B Jeyaretnam passed away.  Bukit Batok was part of a GRC and so the legal issues there were slightly different.

http://article14.blogspot.sg/2008/07/is-constitution-redundant.html

When Mdm Vellamma instituted judicial review proceedings in relation to the PM's discretion in calling for by-elections, it is probably true to say that tremendous political pressure fell on the PM's shoulders.  In a GRC it was possible for the PM to claim that the other MPs would 'cover' the responsibilities of Dr Ong.  But, Hougang is a single member constituency and clearly the PM could not go on a default mode of givng a template response.  http://article14.blogspot.sg/2012/02/bye-yaw-and-now-for-by-election.html

With the application for leave being granted by the High Court and the attempt by the government to have the case thrown out being unsuccessful, there must have been a significant fear in the PM's office that the Constitutional interpretation would work to constrain the PM's discretion.  A by-election was called and I honestly expected that Mdm Vellamma would drop the case.  But, the case proceeded nevertheless.  http://article14.blogspot.sg/2012/04/houngang-by-election-case-decision-to.html
http://article14.blogspot.sg/2012/05/hougang-by-election-26-may-2012.html
http://article14.blogspot.sg/2012/05/hougang-by-election-case-may-be.html


The final judgment by the High Court is most unfortunate for the citizens of Singapore and for the status of our country as a democracy.  In a highly technical approach to the reading of our Constitution, the High Court ruled that the PM has unfettered discretion in deciding on whether to hold a by-election.  I disagree with the Court's reasoning and I have set that out my views here: http://article14.blogspot.sg/2012/12/the-hougang-by-election-case-belated.html

As a direct consequence of the decision, the legal position today is that a vacant Parliamentary seat need not be filled and it can remain vacant till the next general election. 

Since Mdm Vellamma lost her case, the AG requested for an order of costs against her.  The default mode in the Court is that 'costs follow the event'.  That is just lawyers' language for 'legal costs to be paid by the losing party to the winning party.'  Incindentally, judges do have discretion to deviate from this norm and this has been done in the United Kingdom.  (Our Rules of Court are modelled on the English Rules.) 

In a landmark ruling the same High Court judge that dismissed Mdm Vellamma's case found in favour of Mdm Vellamma on the costs issue.  As her case involved a matter of public interest, the Court saw it fit to rule that no costs would be payable even though she lost the case. 

As a consequence of this ruling, Singaporeans have been given the hope that they can safely proceed with judicial review on matters of general public interest and will not be penalised in costs if they lose the case eventually. 

THE IMF LOAN CASE

There is something seriously wrong about the politico-legal order in our country when we have an official rationale for the existence of an Elected President (as an additional check against potential Executive abuse of the reserves) and at the same time a rather cavelier attitude on the government's part when it comes to giving out loans to foreign institutions. 

Most observers reading our Constitution would walk away with the impression that any loan given by our government to a foreign entity is required to be subject to Presidential scrutiny.  But, what appears logical to an ordinary individual can often be seen very differently by lawyers.  This was one such instance.  Though personally I am in favour of subjecting loans by the Singapore government to Parliamentary scrutiny (at the very least), the truth is that the High Court judgment in this case is one that is, at least, consistent with the background to Art 144 of the Constitution.  I would have preferred a different approach by the Court by relying on the need for restrictive interpretation of the Constitution when it comes to Executive powers so that the Rule of Law can be preserved. 

Today, as a result of the IMF loan case, our government needs to seek Presidential approval for the giving of a guarantee and the raising of a loan.  But, there is no need for such approaval for the giving of a loan and the raising of a guarantee.

Another issue arising out of the High Court's decision in this case concerns 'locus standi'.  The Court has ruled that the applicant Kenneth Jeyaretnam had no locus standi to bring this claim because the claim was in relation to a public right and the claimant had to show that he suffered some special damage.  This is effectively a bar on any future claim by a citizen alleging any breach of Article 144. 
http://article14.blogspot.sg/2012/10/the-day-constitution-died-again.html

The effect of this case is that in future, the Executive might breach Article 144 by raising a loan or giving a guarantee without Presidential or Parliamentary scrutiny and citizens would be left without legal recourse.

THE GAY RIGHTS CASE

Tan Eng Hong v AG as decided by the Court of Appeal represents a significant postive step in the interpretation of our Constitution.  At the present stage of the proceedings, there hasn't been any final determination on the Constitutionality of s.377A of the Penal Code.  But, the Court of Appeal has made two rulings of significance. 

S.377A is a pre-independance provision and it pre-dates our Constitution. The AG attempted to argue that s.377A cannot be declared to be void because it is a pre-1965 law.  The Court of Appeal has rejected this. http://article14.blogspot.sg/2012/08/from-gay-rights-to-rights-of-all.html


It is now clear that all statutes that violate the Constitution can be declared to be void and it does not matter whether the statute existed prior to the Constitution.  

The second significance of this case is that the very existence of an unconstitutional statute can sometimes give rise to the violation of the rights of an individual.  So, even if a person has not been prosecuted under s.377A, that person can still bring an action to challenge the Constitutionality of the law. 

The case has general significance in all cases involving the validity of statutes (where there has been a contravention of the Constitution).  A citizen does not have to wait to have his rights violated before bringing a challenge against the statute. 
http://article14.blogspot.sg/2012/08/rights-come-alive-tan-eng-hong-v-ag.html


All of these three cases are still alive.  The decisions in the Hougang by-election case and the IMF case have been appealed against.  Tan Eng Hong will go before the High Court for a determination on the constitutionality of s.377A. 

There is much to watch out for in 2013. 

Happy new year. 

Rights come alive - Tan Eng Hong v AG

A couple of days ago I wrote a post on the legal significance of the Court of Appeal decision in Tan Eng Hong v AG (2012).  The point that I highlighted was on the interpretation of Article 4 of our Constitution.  This is a follow-up post.

There is another significant ruling made by the Court of Appeal in this case and it would have far reaching consequences for other Constitutional cases. 

The Court of Appeal has effectively stated that in some instances, the very existence of an unconstitutional law is sufficient to give rise to the violation of constitutional rights.  The AG was contending that there must be a present prosecution under the particular law before it can be asserted that there was a violation of constitutional rights.  The Court of Appeal has flatly rejected this:


 "At the same time, and for the avoidance of doubt, we state conclusively that we also reject the proposition that a subsisting prosecution under an allegedly unconstitutional law must be demonstrated in every case before a violation of constitutional rights can be shown. A law is either constitutional or it is not. The effects of a law can be felt without a prosecution, and to insist that an applicant needs to face a prosecution under the law in question before he can challenge its constitutionality could have the perverse effect of encouraging criminal behaviour to test constitutional issues. Even though a violation of constitutional rights may be most clearly shown where there is a subsisting prosecution under an allegedly unconstitutional law, we find that a violation may also be established in the absence of a subsisting prosecution. In certain cases, the very existence of an allegedly unconstitutional law in the statute books may suffice to show a violation of an applicant’s constitutional rights."

Thus, if Parliament enacts a discriminatory criminal offence, a person can challenge the law even though he/she may not have been prosecuted for the offence.  This applies generally to all offences and not merely s.377A.  VK Rajah JA goes on to explain:

"We add that while there is no right not to be prosecuted, there is a right not to be prosecuted under an unconstitutional law. Persons who act in ways that may cause them to be liable under an allegedly unconstitutional law are in the unenviable position of waiting to see whether a prosecution will be brought against them despite the alleged unconstitutionality of the law. The waiting and the uncertainty in itself can be said to be a form of suffering, "

From gay rights to the rights of all Singaporeans

Tan Eng Hong v AG (2012) SGCA 45 is a case of immense significance and students of Constitutional Law will no doubt be referred to this case on the interpretation of Article 4 of our Constitution. 

As much as there has been much talk about the 'victory' for the gay community in getting past the first hurdle in this attempt to have s.377A of the Penal Code declared void,  the fact is that this Court of Appeal decision has already become a landmark in relation to Article 4.  Whether the proceedings eventually lead to a declaration that s.377A is void or not, is something that we will have to wait and see. 

The Article 4 issue

Interestingly, the specific issue of whether Art 4 can be relied on was not raised at the High Court and the AG raised this argument only on appeal at the Court of Appeal.  So, thanks to the AG's Chambers we now have an authoritative pronouncement on the application of Article 4. 

What does Article 4 say?

Article 4
This Constitution is the supreme law of the Republic of Singapore and 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. 


The gist of the AG's argument was that if a legislation enacted after 1965 were to be inconsistent with the Constitution, then that unconstitutional legislation can be declared to be void.  But, where the offending legislation was already in existence before 1965, then Article 4 cannot be used to render the legislation void.   Section 377A of the Penal Code is a colonial invention and if the AG's argument was accepted, then all pre-independance laws will be immune from Constitutional challenge. 

The Court of Appeal rejected this argument and upheld the principle of the Supremacy of the Constitution:

"The supremacy of the Constitution is necessary for the purposes of the Constitution to be protected as it ensures that the institutions created by the Constitution are governed by the rule of law, and that the fundamental liberties under the Constitution are guaranteed. Therefore, we find that the supremacy of the Constitution cannot be dependent on when a law was enacted: constitutional supremacy must apply equally both to laws which pre-date and laws which post-date the enactment of the Constitution "

A very literal reading of Article 4 of the Constitution would have led the Court of Appeal to a very different decision and the AG might have succeeded it immunising much of our laws from Cosntitutional control.  Given that there has been no previous case in Singapore on this issue, the Court of Appeal surveyed several Malaysian cases (not entirely consistent decisions) and arrived at the conclusion that Art 4 applied to both pre-independance and post-independance laws.  In the words of the Court:

"We thus find that the mere accident of vintage should not place an unconstitutional law which pre-dates the Constitution beyond the potency of Art 4"

Let us not underestimate the significance of what has happened.  Gay men may not have gained a victory yet.  Singaporeans, in general, definitely have. 

(I have simplified the analysis of the Court in an attempt to highlight the significance of the case.)