The courts, parliament and a question of balance
While committed to ensuring that political branches act within constitutionally
prescribed limits,^97 the courts adopt a dialogical rather than confrontational atti-
tude in refusing to lead social reform, while suggesting legal reform to parlia-
ment.
98
Singapore courts have demonstrated a consciousness about the red line
between ‘legitimate interpretation’ and ‘illegitimate legislation’,
99
and refrain from
creating new or novel rights from expansive readings of constitutional liberties.
This reticence extends towards a reluctance to find auxiliary rights which
would aid the enjoyment of the full measure of an expressly recognised consti-
tutional right. Yong CJ inSun Hongyuv.PP
100
refused to read the Article 9 ( 3 )
guarantee of right to counsel generously to include a right to contact third parties
to discover and enquire into an accused’s right to counsel or the legal conse-
quences of his arrest. Whether the courts will develop an unenumerated rights
jurisprudence by finding implied constitutional rights remains open. A 2009
ministerial statement declared that the right to vote is an implied constitutional
right ‘arising from the various provisions in the Constitution, including Articles 65
and 66 which provide for a general election within 3 months after every dissol-
ution of Parliament’.^101 It was implied from the general structure of the Consti-
tution and the system of representative democracy it established. In other words, it
was functionally necessary to ensure a working system of democratic
accountability.^102
In terms of interpretive method, there are cases which appear to transcend the
rhetoric of ‘balancing’ as accompanied by the two-step mantra: that rights are not
absolute and that parliament is constitutionally authorised to enact restrictive laws
on stipulated grounds.
103
Loh J inShadrakeobserved that in balancing rights and
competing interests, ‘neither can be defined in such a way that renders the other
(^97) E.g., rather than a hands-off approach, the High Court inLee Hsien Loongv.Review
Publishing Co. Ltd[ 2007 ] 2 SLR 453 at 490 – 1 emphasised the importance of a contextual-
ised non-categorical approach in deciding issues of justiciability.
(^98) E.g. in relation to media privileges under the Defamation Act (Lee Hsien Loongv.Review
Publishing Co Ltd[ 2009 ] 1 SLR 177 ), and the extra-territorial effect of criminal offences
(Taw Cheng Kongv.PP[ 1998 ] 2 SLR 410 at 437 [ 88 ]).
(^99) Chong J,Yong Vui Kongv.AGl[ 2011 ] 1 SLR 1 at 30 [ 63 ];Yong Vui Kongv.PP[ 2010 ]
SGCA 20 at [ 59 ], noting that it would not be appropriate ‘to legislate new rights into the
Singapore Constitution under the guise of interpreting existing constitutional provisions’,
per Chan CJ.
(^100) Sun Hongyuv.PP[ 2005 ] 2 SLR 750. This was an extension of Yong CJ’s earlier holdings
that there is no right for an accused to be informed of his Art. 9 ( 3 ) right to counsel:PPv.
Mazlan[ 1993 ] 1 SLR 512 ;Rajeevan Edakalavanv.PP[ 1998 ] 1 SLR 815.
(^101) Law Minister K. Shanmugam 85 SPR 13 February 2009 (Budget Head R – Ministry of Law) in
response to the question I raised in my capacity as a Nominated Member of Parliament.
(^102) See Thio Li-ann, ‘Westminster constitutions and implied fundamental rights: excavating
an implicit constitutional right to vote’ ( 2009 )SJLS 406.
(^103) E.g. the Public Entertainment and Meeting Act (PEMA) under Art. 14 ( 2 ), as discussed in
Chee Soon Juanv.Public Prosecutor[ 2003 ] 2 SLR 445 at 450 ,[ 20 ].