Constitutionalism in Asia in the Early Twenty-First Century

(Greg DeLong) #1

Communitarianism: the right and the good


The public philosophy judicially espoused is broadly communitarian^82 (statist in


some cases^83 ), and does not prioritise the individual in the way liberal individualist


philosophies do, in treating rights as ‘trumps’ which override social utility; rights are


not considered oppositional but integral to the common good,
84
in a structural


rather than an autonomist way. In this conception, rights are not the focal point in


judicial balancing; an individual-centric rights-oriented political culture is rejected


in favour of a more holistic responsibilities- and public goods-oriented discourse,
85


where the good is more confidently articulated,
86
developed along consciously


autochthonous lines.
87
Here, law, or rather its social and symbolic value, is taken


seriously ‘as a potential source of correct or preferable norms of human conduct’,
88


and rights apparently apprehended as defeasible interests, not determinative


trumps.


This view is evident in case law, which has rejected the vision of a liberal state


supposedly ‘agnostic’ on the common good, and which propounds a rights-based


interpretive method. InMohamed Emranv.PP,^89 the High Court found that the


decision to prosecute only a drug trafficker who was entrapped and not the


undercover police agent did not violate the equal-protection clause, as a reasonable


distinction could be made between these two categories of person, one promoting


and one curbing the drug trade, an objective under the Misuse of Drugs Act


(MDA). The communitarian assumptions underlying various aspects of the deci-


sion are instructive. First, the importance of anti-drug-trafficking laws as a public


good was affirmed and applied to the doctrine of reasonable classification; the court


noted that police officers were not expected to be passive observers in combating


the drug trade, otherwise, ‘detection and prosecution of consensual crimes com-


mitted in private would be extremely difficult’ as there is ‘usually no victim to


report the matter to the police’ in drug-trafficking crimes. A public good is served in


punishing apparently ‘victimless’ crimes (harm may be tangible or intangible)


(^82) SeePPv.Law Aik Meng[ 2007 ] 2 SLR(R) 814 at [ 24 ]–[ 29 ].
(^83) E.g.Chan Hiang Leng Colinv.PP( 1994 ) 3 SLR 662 at 684 (‘The sovereignty, integrity and
unity of Singapore are undoubtedly the paramount mandate of the Constitution and
anything, including religious beliefs and practices, which tend to run counter to these
objectives must be restrained’).
(^84) Rajeevan Edakalavanv.PP[ 1998 ] 1 SLR 815 (considering fundamental liberties a part of
‘our well-being in society’).
(^85) SeeChee Siok Chinv.PP[ 2006 ] 1 SLR 582 at [ 135 ].
(^86) The High Court noted inKalpanath Singhv.Law Society,[ 2009 ] 4 SLR(R) 1018 [ 23 ] that
the secular nature of Singapore society did not preclude having ‘shared values’, identifying
one ‘common value’ as ‘forgiving those who have trespassed against us’.
(^87) Phang JC,Tang Kin Hwav.Traditional Chinese Medicine Practitioners Board[ 2005 ] 4
SLR(R) 604.
(^88) Peter Cane, ‘Taking law seriously: starting points of the Hart/Devlin debate’ ( 2006 ) 10
Journal of Ethics 21 at 26.
(^89) [ 2008 ] 4 SLR 411.


The continuing Singapore experiment 283

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