otiose’.
104
This fact has not translated into a wholesale adoption of intensive review.
The High Court expressly rejected proportionality-based review inChee Siok Chin
v.MHA^105 for being a European rather than common-law principle.^106 In this,
Singapore courts are increasingly diverging from Malaysian courts, who have read
in qualifiers that restrictions on rights satisfy tests of reasonableness or
proportionality.^107
Some judicial deference is apparent insofar as courts accept that the legislative
balance in framing a law which affects fundamental liberties is a constitutional
balance. Nonetheless, the Court of Appeal inNguyen Tuong Vanv.PP^108 held that
the meaning of the phrase ‘in accordance with law’ in Article 9 ( 1 ), which deals with
the deprivation of life and liberty, goes beyond duly enacted legislation to reference
a system of law incorporating fundamental rules of natural justice forming ‘part and
parcel of the common law of England’ at the Constitution’s commencement.^109
Chan CJ inYong Vui Kongv.AG
110
conceptually distinguished natural justice
(fair hearing and the rule against bias) as a common-law principle and as an
elevated constitutional norm, as accomplished inOng Ah Chuanv.PP,
111
where
natural-justice rules were incorporated into substantive legislation in the criminal-
justice context. The former could be amended by statute, and the latter only by
constitutional amendment.
112
Chan CJ clarified that these rules were ‘the same in
nature and function’, but operate at ‘different levels of our legal order’. Fairness lies
at the core of natural justice, being a term capable of having procedural and
substantive dimensions. As far as the constitutional concept has developed, this
relates largely to the conduct of a fair trial. Whether this will evolve to assert
substantive constraints on government power remains to be seen.
The courts, human rights law and comparative law
Arguments based on customary international law (CIL) and foreign cases have
become commonplace in constitutional litigation. These centre on the Universal
Declaration of Human Rights (UDHR) and have related to the mandatory death
penalty (MDP)^113 imposed for drug-trafficking offences under the MDA, as in
(^104) AGv.Shadrake Alan[ 2011 ] 2 SLR 445 ,[ 57 ]. (^105) [ 2006 ] 1 SLR 582 at 616.
(^106) Justice Bokhary PJ inLeung Kwok Hungv.HKSARFACC Nos 1 & 2 of 2005 considered
that proportionality was ‘not really new’ but was a facet of the rule of law and contained
in the Magna Carta [ 178 ].
(^107) The Malaysian courts have held that housed within the equal-protection clause (Art. 8 )is
the proportionality doctrine:Sivarasa Rasiahv.Badan Peguam Malaysia and Another
[ 2010 ] 2 MLJ 333 at 350 [ 31 ]; cfChee Siok Chinv.MHA[ 2006 ] 1 SLR 582 ,[ 46 ]–[ 51 ].
(^108) [ 2004 ] SGCA 47.
(^109) Lord Diplock,Ong Ah Chuanv.PP[ 1980 – 1 ] SLR 48 at 62 ,[ 26 ].
(^110) [ 2011 ] SGCA 9. (^111) [ 1980 – 1 ] SLR 48. (^112) [ 2011 ] SGCA 9 ,[ 103 ]–[ 104 ].
(^113) Singapore is currently reviewing the scope of application of the MDP: ‘Singapore Com-
pletes Review of Mandatory Death Penalty’, channelnewsasia.com, 9 July 2012.