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.