Many cases cited also dealt with murder rather than drug trafficking, which
was motivated by cold, calculated greed. The nub of counsel’s argument was that
Article 9 ( 1 ) should be generously read in a prohibition on laws prescribing TCIP,
because human values had changed, warranting a departure from precedent.^128
Many of these decisions were from Caribbean countries whose constitutions were
directly influenced by the European Convention on Human Rights (ECHR).^129
While stating that Singapore courts should ensure that domestic law should as far
as possible ‘be interpreted consistently with Singapore’s international legal obliga-
tions’,^130 the Court of Appeal inYongsaid there were ‘inherent limits’ affecting the
extent to which the courts could refer to international human rights law norms. These
limits were derived from the constitutional text or history and the courts would not
overextend their boundaries by enacting new rights through judicial interpretation.
A constitutional amendment was needed to bring a new right into being.
The Court of Appeal held that the argument that the MDP for serious drug-
trafficking offences was inhuman punishment and unconstitutional was ‘fore-
closed’ for two main reasons.
131
First, the Singapore constitution contained no
express prohibition against TCIP. It was deliberately omitted from the Malayan
constitution ( 1957 ); this was ‘not due to ignorance or oversight’
132
on the part of
the Reid Commission as such a clause already existed in the ECHR, and it is ‘a
little known legal fact’ that between 1953 and 1957 the ECHR was applicable to
Singapore and the Malayan Federation by virtue of the UK’s declaration under
Article 63 ECHR. The ECHR ceased to apply to the British colonies upon
independence, or, in Singapore’s case, in 1963 , when it joined the Malayan
Federation.^133 Second, the 1966 constitutional commission had recommended
including a prohibition on inhuman punishment which the government ultimately
rejected, although no clear reasons were given. This appeal to original intent (or
lack of intent) or constitutional history to show that such a clause was considered
and ‘decisively rejected by the Government in 1969 ’^134 was thought to shut down
any attempt to read into Article 9 ( 1 ) the content that such a clause would have
contained.^135 From the recommendation to include the TCIP clause, it was
inferred that the content of the proposed clause was distinct from and did not
overlap with Article 9 ( 1 ) and, as such, it was not legitimate to ‘expand via an
interpretative exercise’^136 the scope of Article 9 ( 1 ) to include a prohibition against
(^128) Ibid., at [ 52 ].
(^129) A list of these cases may be found atYong Vui Kongv.Public Prosecutor[ 2010 ] SGCA
20 at [ 24 ].
(^130) Ibid., at [ 50 ]. (^131) Ibid., [ 49 ]. (^132) Ibid., [ 62 ]. (^133) Ibid., [ 61 ].
(^134) Ibid., [ 72 ]. Original intent is difficult to discern here insofar as there is no historical record
indicating why the government decided to reject the proposed clause.
(^135) One could argue that the framers may have thought that Art. 9 ( 1 ) already included a
prohibition against torture and inhuman punishment.
(^136) [ 2010 ] 3 SLR 489 at 524 [ 72 ].