Paper as a set of principles, indicating a preference for flexibility. If constructive
dialogue fails, this mechanism would avail as a ‘last recourse’. Pragmatic in
conception, it is designed to avoid government paralysis. In this event, the
historical real rate of return over the past twenty years will be used, as a ‘neutral
and pragmatic basis’. This mechanism reflects the presidency’s reactive role in
offering a second opinion, not a counterproposal, on whether a proposal is
reasonable.
iii. judicial review: interpretative approaches and a survey
of major constitutional casesGeneral approach: significant trends
Judicial review in Singapore is not grounded on a presumption of deep combative
distrust against the political branches.
76
Nor is it fair to assert that the courts in
public-law cases of the past decade merely ‘defer’ (a complex idea requiring
unpacking) to the political branches. What is apparent is a shift in style of
judgments, from terse to expository, forgiving of procedural flaws, patient with
immature constitutional argument, with a greater willingness to engage with or
refer to academic writings and foreign law (whether as a model or anti-model
77
),
with more sophistication in handling international-law arguments.
78
A subtle
attempt to ‘correct’ interpretations of past decisions is also apparent in judicial
asides.
(^79) Whether this will translate into substantive rather than semantic
changes,^80 and whether conceptual distinctions will be judicially developed,^81
remain to be seen.
(^76) See Chief Justice Chan Sek Keong’s extrajudicial lecture published as ‘Judicial review:
from angst to empathy’ ( 2010 ) 22 SAcLJ 474 ,at 480 , 486.
(^77) E.g. inYong Vui Kongv.AG[ 2011 ] SGCA 9 , the court distinguished Indian cases (Indian
officials gave pardons as personal favours too readily) and Jamaica cases (Singapore was not
party to specific human rights treaties Jamaica had acceded to).
(^78) Michael Wood, ‘What is public international law? The need for clarity about sources’ ( 2011 )
Asian JIL 205 ; Thio Li-ann, ‘“It is a little known legal fact”: originalism, customary human
rights law and constitutional interpretation –Yong Vui Kongv.Public Prosecutor’( 2010 )
SJLS 558.
(^79) See the Court of Appeal’s comment onJabar[ 1995 ] 1 SLR(R) 326 inYong Vui Kongv.PP
[ 2010 ] 3 SLR 489 at 501 ,[ 19 ].
(^80) E.g. in discussing the offence of ‘scandalising of contempt’, Loh J, while preferring the
more stringently framed ‘real-risk’ over the ‘inherent-tendency’ test of speech harming
public confidence in the administration of justice, nonetheless opined that the tests did not
really differ, as each required contextualised balancing. InAGv.Shadrake Alan[ 2011 ] 2
SLR 445.
(^81) The constitutional concept of natural justice: CJ Chan,Yong Vui Kongv.PP[ 2011 ] SGCA
9 [ 103 ]–[ 104 ].