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Judicial review refers to the courts’ powers to invalidate executive decisions or impugn legislation on the ground that they are inconsistent with the Constitution. It is one of the fundamental aspects of the separation of powers doctrine, as it represents the primary mechanism with which the courts may seek to rein in the powers of the executive and legislature to the extent of their constitutionally demarcated boundaries. The power of judicial review is also a crucial element of the Diceyan conception of constitutional supremacy.

In Singapore, Articles 4 and 162 assert the supremacy of the Singapore Constitution over ordinary laws.

Article 4 states:

“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.”^[1]

Article 162 states:

“Subject to this Article, all existing laws shall continue in force on and after the commencement of this Constitution and all laws which have not been brought into force by the date of the commencement of this Constitution may, subject as aforesaid, be brought into force on or after its commencement, but all such laws shall, subject to this Article, be construed as from the commencement of this Constitution with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Constitution.”^[2]

While Article 93 of the Constitution vests in the Judiciary the judicial powers, it does not expressly grants powers of constitutional judicial review in the courts.^[3] However, this role has been implicitly assumed by Singapore courts.

The High Court in Taw Cheng Kong v. Public Prosecutor^[4] espoused on the role of the judiciary to ensure that the provisions of the Constitution are observed. Karthigesu JA stated that the courts have the duty to declare invalid any exercise of power, legislative and executive, which exceeds the limits, conferred by the Constitution, or contravenes the prohibition which the Constitution provides.^[5]

In Yong Vui Kong v. Attorney General,^[6] the Court of Appeal held that Article 93 vested in the Supreme Court the jurisdiction to adjudicate in any constitutional dispute between the State and the individual.^[7] The Court further added that the court’s power to review disputes between the State and the people is rarely, if ever, excluded, especially so in Singapore where the Constitution reigns supreme.^[8]

This approach would allow the courts to be the proper institution to enforce the limits demarcated by the constitution. As Chief Justice Marshall observed in Marbury v. Madison, where rules conflict, it is “emphatically the province and duty of the judicial department to say what the law is.” Neither the Legislature nor the Executive has any incentive to invalidate their own decisions. This approach would allow the courts, as the proper branch of government to adjudicate disputes, to be the body that ensures adherence to the Constitution.

In exercising their power of judicial review, the courts have to interpret the offending legislation, as well as the provisions of the Constitution that the impugned legislation or executive action purports to offend, before determining whether the legislation or executive action is indeed inconsistent with the Constitution. This represents a slightly different approach to that of the courts when they exercise their review powers under administrative law, where the courts are more concerned with whether an administrative body has exercised its discretion under the law in a wrongful or illegitimate manner. In order to determine whether a piece of legislation or executive action is unconstitutional, the courts have enunciated several principles of constitutional interpretation.

The presumption of constitutionality refers to the starting presumption of the courts that the Legislature does not intend to pass invalid laws, and that legislation or constitutionally demarcated powers are exercised in accordance with the Constitution. The court “must always be mindful of the presumption of constitutionality”,^[9] meaning in cases where the constitutionality of a legislation is being questioned, the court must always presume that the legislation is valid.

The basis for this principle finds its roots from the wide power of classification the legislature must have in making laws – for legislation to properly give effect to its policies, it must have a broad enough scope to make laws that operate differently with regards to different groups of persons.^[10]

Another rationale for this doctrine rests on the presumption that the Legislature understands and correctly appreciates the needs of Singaporeans and that its laws are directed to real problems and its discriminations are based on adequate grounds.^[11]

The court is required to first lean in favour of constitutionality and support the legislation in question, if it is reasonable to do so.^[12] Unless the law is plainly arbitrary on its face, putting forward examples of arbitrariness would not be helpful in rebutting the presumption.^[13]

It is then up to the party who is attacking the validity of the legislation to place all materials before the court to show whether the enactment or the exercise of the power under it is arbitrary and unsupportable.^[14] What level and kind of evidence required will then depend on the facts and circumstances of each case.^[15]

It is assumed that good faith and knowledge of the existing conditions on the part of a legislature are present. So if there is nothing on the face of the law or the surrounding circumstances brought to the court’s notice to prove that the classification maybe unreasonable, the presumption of constitutionality is not rebutted.^[16] The standard to be applied has to be a high one or certain individuals or corporations will be subjected to hostile or discriminating legislation based on undisclosed and unknown reasons.^[17]

More recently, the High Court in Lee Meng Suang v. Attorney General, once again exhibited a high degree of reluctance to undertake a more robust attitude towards constitutional review. Quentin Loh J reaffirmed the approach laid down by the Court of Appeal in Public Prosecutor v. Taw Cheng Kong when reviewing the constitutionality of legislation.^[18] The starting point of review is a strong presumption that the legislation is constitutionally valid. The basis for such a presumption is that the Legislature understands and correctly appreciates the needs of its people.^[19]The learned judge added that the presumption of constitutionality is intimately tied to the idea of separation of powers. Where issues of social morality are concerned, the judiciary should be slow to exercise their powers of constitutional review. These are questions in which “there can be no expectation that an unelected judiciary will play any role”.^[20] Instead, deference should be accorded to persons who are elected and entrusted with the task of representing the people’s interests and will.^[21]

In displacing this presumption, a challenger must adduce cogent and factual evidence that the law was enacted arbitrarily or had operated arbitrarily,^[22] placing a further burden on any applicant and strengthening such a presumption of constitutionality where factual evidence may be hard to gather.

The presumption of generous interpretation, is that where Constitution has used an expression that can be interpreted in a wide or narrow sense, the court should always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose. ^[23]

The generous interpretation would be used especially where the fundamental liberties of the Constitution are considered, so as to give individuals the full measure of the liberties referred to. ^[24] This would avoid the “austerity of tabulated legalism”.^[25] Where there are exceptions to the fundamental liberties, the courts would then give a narrow interpretation to the exceptions.^[26]

However, it should be noted that in giving a generous interpretation to provisions, caution should be exercised to ensure that the interpretation is not extrapolated too far. In Edwards v R, the court stated that the constitution is a “living tree capable of growth and expansion within its natural limits”.^[27]

Strict textualism is another technique employed by the courts in interpreting a written constitution. Under the doctrine of strict textualism, a court should confine itself to a literal or "straightforward" reading of the relevant canonical text, unless the text is ambiguous on its face or such a reading would lead to an "absurd" or "bizarre" result.

The strictest form of textualism is literalism – a narrow and literal construction of words and phrases.^[28] Literalism only applies where the text of the Constitution is free from ambiguity. When the scope of a phrase is broad and imprecise – examples from our own Constitution include “personal liberty”, “equal protection” and “in accordance with law” – literalism is of little help in determining if a particular issue before the court warrants constitutional protection.^[29]

The case of Rajeevan Edakalavan v. Public Prosecutor^[30] arguably employed strict textualism in interpreting Article 9(3) of the Constitution^[31] The issue in that case was whether or not Article 9(3) of the Constitution imposed on the relevant authority an obligation to inform a person under custody of his right to counsel. The High Court held that the words “shall be allowed” in Article 9(3) were couched in negative terms, and therefore did not impose any positive obligation on the relevant authority. This meant that while one’s right to counsel is afforded constitutional protection, nowhere in Art 9(3) does it provide that there is a right to be informed of one’s right to counsel. Any proposition to broaden the scope of the rights accorded to the accused should be addressed in the political and legislative arena. The Judiciary, whose duty is to ensure that the intention of Parliament as reflected in the Constitution and other legislation is adhered to, is an inappropriate forum. Members of Parliament, on the other hand, represent interests of people who entrust them to act fairly, justly and reasonably. The right lies ultimately in the people to determine if any law passed by Parliament goes against principles of justice, and this right is exercised by the people through the ballot box.

In Rajeevan Edakalavan v. Public Prosecutor^[32], this was espoused by Yong Pung How CJ (as he was then) when he held that

“the judiciary is in no position to determine if a particular piece of legislation is fair or reasonable as what is fair or reasonable is very subjective. If anybody has the right to decide, it is the people of Singapore. The 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. This is especially so with regards to matters which concern our well-being in society, of which fundamental liberties are a part.”^[33]

Hence, the duty of the judge is to adjudicate and interpret the laws passed by Parliament with the aim of ensuring that justice is upheld. He is in no position to expand the scope of or imply into the Constitution and other legislation his own interpretation of the provisions which is clearly contrary to Parliament’s intention.

Under the doctrine of purposive interpretation, when interpreting a provision of written law, the court should prefer an interpretation that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) to an interpretation that would not promote that purpose or object.

Section 9A of the Interpretation Act ^[34] establishes that in Singapore, a purposive approach is to be used to interpret statutes, and that courts may refer to extrinsic materials to resolve ambiguities. Section 9A is relevant to constitutional interpretation because “written law” is defined by s 2(1) of the Interpretation Act to include the Constitution.^[35] Section 9A is relevant to constitutional interpretation because “written law” is defined by s 2(1) of the Interpretation Act to include the Constitution.^[36]

Shortly before s 9A came into force, this rule was affirmed in the common law by Pepper (Inspector of Taxes) v. Hart^[37] , applied in Singapore by Tan Boon Yong v. Comptroller of Income Tax. ^[38]

In the Constitutional Reference No 1 of 1995,^[39] which is the first application of s 9A to the Constitution, the Constitutional Tribunal considered as well-established the principle that a purposive interpretation should be adopted in interpreting the Constitution to give effect to the intent and will of Parliament. The words of the Act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.

The intention is to be found at the time the law was enacted or in some circumstances when it subsequently reaffirms the particular statutory provision. Legislative material such as speeches in Parliament and other contemporaneous documents can be resorted to. Therefore, courts must employ an interpretation that promotes the purpose or object underlying the Constitution or particular Articles of the Constitution.

Resort to contemporaneous speeches and documents is sanctioned only as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases, references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words.

The Constitutional Tribunal also held that it is wrong to adopt a literal approach even if there is no ambiguity or inconsistency, if the literal approach does not give effect to the will and intent of Parliament. Section 9A(2)(a) rejects literalism since extrinsic materials revealing a provision’s purpose or object are to be interpreted according to their ordinary meaning. Therefore the approach that accords best with s 9A is moderate textualism.

It should also be noted that reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done.

In Chee Siok Chin v. Minister for Home Affairs,^[40] V K Rajah J (as he was then) affirmed Sastri CJ in the leading Indian case of State of Madras v V G Row:^[41]

“It is important … to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable. [emphasis added]”

This constitutes a clear acknowledgement of the need for judicial self-restraint and extreme caution when seeking to determine whether a particular piece of legislation is invalid on the ground that it is an unreasonable restriction of a constitutional right – even under the altogether different constitutional scheme in India, where the court is vested with wider powers of review. ^[42]

Although the Judiciary has taken upon themselves the responsibility to ensure fidelity towards the Constitution, they have in practice demonstrated a reluctance to exercise such powers.

In Chee Siok Chin v Minster for Home Affairs, the constitutionality of s. 13A and 13B of the Miscellaneous Offences Offences (Public Order and Nuisance) Act^[43] was being brought into question. It was alleged that the provisions violated the right to freedom of speech and peaceful assembly granted by Article 14(1)^[44] of the Constitution. The High Court held that the impugned legislation fell squarely within the exception of in Article 14(2)^[45] as they were considered by the Parliament to be “necessary or expedient” for public interests. More importantly, V K Rajah J (as he then was) emphasised on the need for judicial self-restraint and extreme caution when seeking to determine whether a particular piece of legislation is invalid on the ground that it is an unreasonable restriction of a constitutional right.^[46] He also added that the presumption of legislative constitutionality will not be lightly displaced.

At this juncture, an interesting comparison may be made with the UK courts’ approach in the interpretation and application of the Human Rights Act 1998.

In discussing the doctrine of deference, Laws LJ, in International Transport Roth GmbH v. Home Secretary,^[47] enunciated three principles which would guide the courts in determining the level of deference to be accorded to the “democratic powers” – firstly, that more deference will be paid to an Act of Parliament than to a decision of the executive or subordinate measure;^[48] secondly, that there is more scope of deference “where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified;^[49] thirdly, that greater deference will be due to the democratic powers where the subject-matter in hand is peculiarly within their constitutional responsibility, and less when it lies more particularly within the constitutional responsibility of the courts;^[50] and fourthly, the degree of deference due depended on "whether the subject-matter lies more readily within the actual or potential expertise of the democratic powers or the courts”.^[51]

While the first principle is largely inapplicable in Singapore as it arose out of the “intermediate constitution” of the UK, where parliamentary sovereignty means that Parliament bears the “ultimate mantle of democracy in the state”, the other two principles enunciated by Laws LJ could be plausible reasons for a judicial philosophy of deference in Singapore. For instance, in Chee Siok Chin v. Minister of Home Affairs, the right of free assembly was, as V K Rajah J noted, clearly a qualified one,^[52] and the judge interpreted the exceptions in the provision itself to give Parliament a wide legislative remit to restrict free speech. In the context of justiciability, Sundaresh Menon JC (as he then was) also observed in Lee Hsien Loong v. Review Publishing that there are matters of government policy which judges are ill-equipped to adjudicate (having limited training, experience, and access to materials), and also that the democratically elected Executive and Legislature are entrusted to take charge of, and hence should not interfere with.^[53] These considerations reflect the third and fourth principles enunciated by Laws LJ.

However, such a judicial philosophy has not escaped criticism; critics have argued a doctrine of judicial deference is “empty or pernicious”: empty, due to its uselessness in implementing a separation of powers as this is secured by the proper application of legal principles defining the scope of individual rights or the limits of public powers; and pernicious, because such a doctrine may lead to the court’s abdications of its responsibilities as an independent adjudicator between the citizen and the state, leaving the citizen with no redress.^[54]

Nevertheless, a philosophy of due deference, especially in matters of policy, remain largely part of the courts’ approach towards judicial review today.

In Singapore, the status of the right to vote is still very much lost within shades of grey. Part IV of the Constitution,^[55] which encompasses the fundamental liberties afforded to everyone subjected to the supremacy of the Constitution, does not contain the right to vote or any explicit reference to “democracy”. The Parliamentary Elections Act^[56] also appears to regulate rather than create the right to vote.^[57]

Taw Cheng Kong v. Public Prosecutor suggested that voting was a privilege granted by the State at its discretion, rather than a fundamental liberty afforded to all. In the case, it was held that “[c]onstitutional rights are enjoyed because they are constitutional in nature. They are enjoyed as fundamental liberties¬ not stick and carrot privileges. To the extent that the constitution is supreme, those rights are inalienable. Other privileges such as subsidies or the right to vote are enjoyed because the legislature chooses to confer them-these are expressions of policy and political will. But the rights are not enjoyed in exchange for 'a certain code of conduct from ... citizens whether they be within or without the country'. So insofar as the prosecution's theory suggests that constitutional rights are bargained rights, conferred not by supreme law but by common exchange with the State, I think it is legally inaccurate.”^[58]

However, in 2009, Law Minister K. Shanmugam clarified this position by unequivocally stating that the right to vote is an implied constitutional right, “arising from the various provisions in the Constitution, including Article 65^[59] and 66^[60] which provide for a general election within three months after every dissolution of Parliament”.^[61] Under the doctrine of separation of powers, the Minister’s statements is not conclusive of the legal position; there has, however, been no judicial pronouncement on the matter.

The presence of implied rights in the Constitution presents a problematic position in terms of judicial review. While doctrines and quasi-constitutional objectives of legislation have been recognized in case law, it is unclear how and whether the courts may view such rights, and, indeed, whether executive action or legislation may be impugned for being inconsistent with such rights.

It is also pertinent to note that the recognition of an implied right to vote might open the possibility of the recognition of other implied rights in the Constitution. In Australia, for example, an implied right of freedom of political communication has been recognized, and the possibility of recognizing the right of judicial review itself as an implied right in the Constitution has been raised in Parliament.

The conflicting approaches of strict textualism and a purposive interpretation or generous interpretation is nicely brought to the fore here – courts taking a textualist approach may decline review on the basis of such implied rights while courts adopting a more “purposive” interpretation of the Constitution may seek to ensure that executive action or legislation inconsistent with such implied rights are struck down or quashed. In the absence of case law, whether the power of judicial review extends to implied rights is still an open question in Singapore.

In Singapore, it appears that the power to judicially review laws does not extend to examining the constitutionality of constitutional amendments passed by the legislature. This may be explained on the basis that in enacting constitutional amendments, the legislature is exercising its “constituent power” and the courts have no jurisdiction to review over such power.

The Malaysian Federal Court in Phang Chin Hock v. Public Prosecutor^[62] made a distinction between the exercise of “constituent power” and “legislative power” by the Parliament. This was done to resolve the conundrum created by Article 4(1) and Article 159 (Malaysia’s equivalent to Article 4 and 5 of the Singapore Constitution). Article 4 of the Constitution voids any law enacted by the Legislature if it was inconsistent with the Constitution. On the other hand, Article 159 allows the Legislature to amend the Constitution provided the required majority was obtained. Interpreted literally, Article 4 would render Article 149 otiose as any law enacted to amend the Constitution will necessarily be inconsistent with the terms of the extant Constitution. To deal with this inconsistency, the Federal Court relied on the rule of harmonious construction to give effect to both provisions.^[63] In doing so, the court distinguished between Acts amending the Constitution and ordinary legislation enacted in the ordinary way. Only legislative acts of the latter would fall within the meaning of “law” in Article 4.

Singapore courts have not had the occasion to consider whether a constitutional amendment is “law” within the terms of Article 4. However, Professor Thio Li-ann has suggested that the Malaysian approach would be appropriate in the Singapore context, given the near-identity of the relevant constitutional provisions.^[64] Thus, where the Parliament exercises its legislative powers and enacts ordinary legislation inconsistent with the Constitution, Article 4 allows the courts to declare the legislation void. However, where the Parliament exercises its constituent power under Article 5 to amend the Constitution, the courts will be precluded from reviewing such amendments as they do not fall within the meaning of “law” in Article 4. As long as all conditions precedent and subsequent prescribed by the Constitution are satisfied, the constitutional amendment will be valid notwithstanding the fact that it is inconsistent with the Constitution.

As seen above, if the Malaysian position is accepted in Singapore, the Judiciary is precluded from reviewing constitutional amendments even if they are inconsistent with the Constitution.

However, a different conclusion may be reached if the basic features doctrine is adopted. This doctrine was first recognised by the Indian Supreme Court in Kesavananda Bharati v. The State of Kerala.^[65] It posits that there are certain implied basic features of the Constitution that are not amenable to changes and amendment by Parliament. The doctrine serves as a safeguard against the potential abuse of the legislature’s constituent power. Chief Justice Sarv Mittra Sikri held that the basic structure of the Indian Constitution included the supremacy of the Constitution; the secular character of the Constitution; the republican and democratic form of government; the separation of powers between the legislature, the executive and the judiciary and the federal character of the Constitution.^[66]

The basic feature doctrine has been expressly rejected by the Singapore High Court in Teo Soh Lung v. Minister for Home Affairs.^[67] Fredick Arthur Chua J held that Article 5 did not place any express limitations on the Parliament’s power to amend the Constitution.^[68] The learned judge added that if courts have the power to impose limitation on the legislature’s power of constitutional amendments, they would be usurping Parliament’s legislative function contrary to Article 58 of the Constitution.^[69] Chua J also considered the differences in the making of the Indian and the Singapore Constitution. He concluded that the Singapore Parliament’s power to amend the Constitution cannot be said to be limited in the same way as the Indian Parliament’s power to amend the Indian Constitution.^[70]

It bears to note that on appeal, the Court of Appeal^[71] held that it was unnecessary to consider whether the amendments to the Constitution are invalid as violating the basic structure of the Constitution. Thus, the Court of Appeal had left the door open for the acceptance of the doctrine as part of Singapore law in future cases. If so, the Judiciary’s role in constitutional review would extend beyond ordinary legislation. Constitutional amendments which violated the basic features of the Constitution would also be amenable to judicial review.