Constitutional Review: Singapore and Hong Kong Compared

2010

Chapter 1 Introduction Chapter 2 Preludes to Constitutional Review Chapter 3 Counter-majoritarian difficulty, Passive Virtues and New Judicial

Minimalism Chapter 4 Legal Foundation of Judicial Review Chapter 5 Purposive Interpretation Chapter 6 Use of Foreign Jurisprudence Chapter 7 Principles on Restriction of Entrenched Rights Chapter 8 Implications of Constitutional Review for Substantive Rights Chapter 9 Passive Virtues and Minimalism in Singapore and Hong Kong? Chapter 10 Constitutional Review Justified in Singapore and Hong Kong? Chapter 11 Rights Culture and Legitimacy Chapter 12 Conclusion

2

CHAPTER 1 –

INTRODUCTION

1.1 WHY COMPARE CONSTITUTIONAL REVIEW

IN SINGAPORE AND HONG KONG

In the Bangkok Declaration,1

the Asian countries have accepted,

though grudgingly, that the rights provided for in the Universal Declaration of

Human Rights are universal. On the other hand, it is well established law in

the western countries that the recognised rights, except for those which are

non-derogable,2 may be restricted to the extent necessary to achieve legitimate

objectives. The principle of margin of appreciation adopted by the European

Court of Human Rights clearly recognises the need for different human rights

standards to be adopted in the light of the social conditions prevailing in

individual jurisdictions. On the face of it, the question of whether human

rights are universal or relative to culture is settled: human rights, as values, are

universal but the actual standards may vary according to social conditions.

Not so. The standards may vary so widely between two jurisdictions as to cast

doubt on whether they share the same values at all. As Joseph Chan observes:

“The governments of the countries that signed the [Bangkok]

Declaration argue that Asian states, because of uniquely Asian values

and special historical circumstances, are justified in adopting an

understanding of human rights and democracy that is fundamentally

1 Report of the Regional Meeting for Asia of the World Conference on Human Rights, UN

document A/CONF.157/PC/59, 7 April 1993.

2 For example, the right not to be tortured, not to be held in slavery or servitude and right to

freedom of thought, conscience and religion: see article 4.2 of International Covenant on Civil

and Political Rights.

3

different from that prevailing in the West. According to these states,

Western diplomacy centering on the issue of human rights is simply

part of an attempt by Western countries to assert political and

economic hegemony over Asia.”3

The argument based on Asian values seems to be misplaced when

comparing Singapore with Hong Kong. The two Asian jurisdictions have a lot

in common: both, being formerly British colonies, have common law systems

of British heritage; both populations are predominantly Chinese; both have no

natural resources and rely on international trade and investments for their

economies; both have grown from rags to riches in the last fifty years and are

among the affluent societies in the world. Yet, they differ widely in the human

rights standards – notably the freedom of expression – enjoyed by the people.

Just what account for the divergence?

An entrenched bill of rights, a democratic political structure, the rule

of law and an independent judiciary are regarded as pillars in the national

protection of human rights. Fundamental rights are entrenched in Part IV of

the Constitution of Singapore and in the case of Hong Kong, in the Letters

Patent amended on 8 June 1991 and then, in the Basic Law from 1 July 1997

onwards. A survey conducted by the Political and Economic Risk Consultancy

in 2008 has put the judicial systems in the two places as the best ones in Asia.4

On the other hand, Singapore has a Westminster type of government elected

by universal suffrage while in Hong Kong, the prospect of a government

elected by universal suffrage is still uncertain. Hence, all four pillars exist in

Singapore but democracy, which is supposed to be conducive to the protection

of human rights, is lacking in Hong Kong. One would expect, therefore, that

3 Joseph Chan, “An Alternative View” (1997) 8.2 Journal of Democracy 35, p 35.

4 “Hong Kong has best judicial system in Asian: business survey”, Singapore (AFP), 14

September 2008, last accessed vide http://afp.google.com/article/ALeqM5gIkKvk-

YnNQ1HVb2n_HUUMhncDLA on 17 May 2009.

4

higher human rights standards should prevail in Singapore. Yet, the reverse is

true in practice.

In the United States, the Supreme Court’s decision in Marbury v

Madison 5 has established the judicial power to strike down legislative and

executive acts on ground of unconstitutionality. Judiciaries in several other

common law jurisdictions, including Singapore and Hong Kong, also claim

such power, which may be exercised to protect against undue interference

with the individuals’ rights. The law is a repository of social values and at the

same time, influences such values. A comparison of the approaches and

reasoning adopted by the two judiciaries in constitutional review may put the

“Asian values” in the right perspective and enable a glimpse into the social,

political or economic factors which make up the “culture” in cultural

relativism.

1.2 THEORETICAL FRAMEWORK

Though “strong” judicial review – as distinct from the “weak” version

in which the courts, such as those in the United Kingdom under the Human

Rights Act 1998, may advise on unconstitutionality but are not entitled to

invalidate a legislative act – 6 has been firmly established in several common

law jurisdictions with entrenched bills of rights, its political morality remains

a contested issue, especially in the United States. In his classical work on the

subject, The Least Dangerous Branch,7 Alexander Bickel regards judicial

5 (1803) 5 U.S. (1 Cranch) 137.

6 See C. Neal Tate, “Comparative Judicial Review and Public Policy”, Ch 1 in Donald W.

Jackson and C. Neal Tate, Comparative Judicial Review and Public Policy (Westport,

Connecticut; London: Greenwood Press, 1992) for different types of judicial reviews.

7 Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of

Politics (New Haven; London: Yale University Press, 2nd

edn, 1986).

5

review as a deviant institution in a democratic society on account of the

counter-majoritarian difficulty but argues for its being a necessary evil for the

sake of good governance. To ameliorate the difficulty, he advocates that the

courts should adopt the “passive virtues”, ie avoid a decision on

constitutionality or otherwise of legislation until the principles involved are

“ripe for adjudication”. Bickel inspires the New Minimalists, including Cass R.

Sunstein, who holds that on account of the counter-majoritarian difficulty and

their limited resources compared with the legislature’s, judges should adopt

analogical reasoning and make “narrow and shallow” decisions in

constitutional review.8

Jeremy Waldron elaborates on the counter-majoritarian difficulty.

Contradicting Ronald Dworkin’s outcome-based argument for judicial review,

9 Waldron advances his process-based argument and regards judicial review as

an illegitimate institution because it breaches the principle of fairness. In a

society where a democratic political structure, rule of law administered by an

independent judiciary, rights commitment among officials and the people and

reasonable disagreements about the conceptions of rights exist, such

reasonable disagreements should be resolved by the democratic process and

not by appointed judges.10

Moral legitimacy, argues Richard F. Fallon, Jr, is not determined

solely by fairness. Justice, or the consequence of the fair decision-making

8 Cass R. Sunstein, One Case at A Time (Cambridge, Massachusetts; London: Harvard

University Press, 1999).

9 For example, Ronald Dworkin, “Equality, Democracy and Constitution”, (1989) 28 Alberta

Law Review 324 and Ronald Dworkin, “Constitutionalism and Democracy” (1995) 3

European Journal of Philosophy 2.

10 Jeremy Waldron, “The Core of the Case Against Judicial Review” (2006) 115 Yale Law

Journal 1346.

6

process, matters too. Borrowing Frank B. Cross’s multiple-veto theory,11

Fallon argues that in a society which meets Waldron’s conditions, judicial

review contributes to justice because it errs on the side of over-protection

rather than under-protection of rights.12

1.3 METHODOLOGY

Since Singapore has a democratic political structure which does not

exist in Hong Kong, the counter-majoritarian difficulty suggests that the

Singapore judiciary should and would exercise much greater self-restraint,

than does the Hong Kong judiciary, in conducting judicial review. “Judicial

restraint” and “judicial activism” represent two ends of a continuum. Their

meanings vary according to the context.13

In this thesis, the terms are used to

describe the two judiciaries’ relative tendency to uphold the constitutionality

of a legislative act (“restraint”) or to declare it unconstitutional (“activism”).

To test the hypothesis, the leading and other prominent constitutional

cases in Singapore and Hong Kong since 1991, ie after the enactment of the

Hong Kong Bill of Rights Ordinance, will be analysed. The legal foundations

for judiciary review will be identified. Using judicial practices and influential

academic opinions in the major common law jurisdictions as the benchmarks,

the legal reasoning and approaches adopted by the two judiciaries will be

compared.

11

Frank B. Cross, “Institutions and Enforcement of the Bill of Rights” (2000) 85 Cornell

Law Review 1529.

12 Fallon, Richard H, Jr, “The Core of an Uneasy Case for Judicial Review” (2008) 121

Harview Law Review 1693.

13 See Abaron Barak, The Judge in a Democracy (Princeton and Oxford: Princeton University

Press, 2006), Ch 15: “Activism and Self-restraint”.

7

The results of the comparison provide the empirical data for an

assessment as to whether the Singapore judiciary does exercise greater self-

restraint and if so, whether or not the judicial restraint / activism in the two

places is justified. A brief attempt will then be made to identify the economic,

social and political factors leading to the judicial attitudes and human rights

standards in the two places, with a view to floating ideas on what changes

should or could take place in the interests of the moral legitimacy of the two

governments.

1.4 OUTLINE OF CHAPTERS AND RELEVANCE

OF THEORIES TO SINGAPORE AND HONG

KONG

As a prelude to the theories of judicial review mentioned above,

Chapter 2 begins with a brief discussion of constitutionalism as developed by

Thomas Hobbes and John Locke in their social contract theories. It is followed

by a brief account of Marbury v Madison. Chapter 3 elaborates on and

critiques the theories mentioned in section 1.2 above. It will also discuss the

concept of legitimacy and whether judicial review is, as alleged by Waldron,

an illegitimate institution.

Part II of the thesis compares the constitutional review cases decided

in Singapore and Hong Kong in the last twenty years or so. Nearly all of them

relate to fundamental rights. They therefore portray the human rights

standards in the two places.

Like the United States, both Singapore and Hong Kong are governed

by written constitutions. Chapter 4 examines (a) whether the respective

constitutions authorise the courts in the two Asian jurisdictions to conduct

constitutional review; (b) whether the courts have assumed the power to strike

8

down unconstitutional legislation based on reasoning similar to Chief Justice

Marshall’s in Marbury; and (c) what are the limits to the courts’ power.

When comparing the constitutional review in Singapore and Hong

Kong, the most significant difference coming to notice is the number of

instances in which the courts strike down statutory provisions. In Singapore,

as Li-ann Thio observes, the courts have done so on only one occasion.14

The

decision was reversed on appeal. The courts are less deferential to the

executive. Even so, there are only three cases in which citizens succeeded in

challenging the constitutionality of the executive’s acts.15

In two of them, the

14

Li-ann Thio, “Protecting Rights”, Ch 6 in Li-ann Thio and Kevin Y. L. Tan (eds), Evolution

of A Revolution: Forty Years of the Singapore Constitution (Milton Park, Abingdon and New

York, N.Y.: Routledge-Cavendish, 2009), at p 195, note 15. See also Jaclyn Ling-Chien Neo

and Yvonne C. C. Lee, “Constitutional Supremacy: Still a Little Dicey”, Ch 5 in the same

book, at pp 155-6 and 174. In Taw Cheng Kong v Public Prosecutor [1998] 1 SLR 943, the

High Court ruled section 37(1) of the Prevention of Corruption Act (which provides for extra-

territoriality of corruption offences) to be outside the Singapore Parliament’s legislative

power in view of section 6 of the Republic of Singapore Independence Act. The decision was

reversed by the Court of Appeal on the ground that “(a) Parliament did not have to depend on

any express conferment of extraterritorial powers to begin with, since plenary powers of the

Malaysian Legislature had already been transferred to it under s 5 [of the RSIA]; and (b) s 6

was not concerned with the transfer and vesting of legislative powers like in s 5” - Public

Prosecutor v Taw Cheng Kong [1998] 2 SLR 410, para 42.

15 In Public Prosecutor v Manogaran S/O Ramu [1997] 1 SLR 22, the Court of Appeal held

that its new ruling on the interpretation of “cannabis mixture” in section 2 of the Misuse of

Drugs Act (which had the effect of criminalising acts not caught by the Court’s old, presently

reversed ruling) did not have retrospective effect in the light of Art 11(1) (which protects

against retrospective criminal laws and according to the Court, “embodies the basic principle

of criminal jurisprudence of nullum crimen nulla poena sine lege: ‘conduct cannot be

punished as criminal and punishable as such” (p 40) and the definition of “law” in Art 2 of the

Constitution. Based on the same basic principle, the Court of Appeal held in Abdul Nasir bin

Amer Hamasah v Public Prosecutor [1997] 3 SLR 643, that the court’s pronouncement that

“life imprisonment” meant imprisonment of a person’s natural life, instead of 20 years’

imprisonment as has been the practice since 1954, should not have retrospective effect. In the

9

courts could have reached the same decisions, even without a written

constitution, through fundamental common law principles. The three cases are

rare exceptions given a commentator’s observation that “the judiciary

exercises significant self-restraint and has demonstrated great reluctance to

interfere with executive decisions”.16

The Hong Kong judiciary rules against

legislative and administrative acts much more frequently.17

The difference suggests that the two judiciaries, though their legal

systems are both developed from the English common law, probably adopt

different approaches in interpreting the rights provisions in the respective

constitutional documents. Chapters 5 to 7 examine whether such differences

do exist. The conclusions in all three chapters are in the affirmative. The

differences result in significantly lower standards of human rights in

Singapore than in Hong Kong. The different standards are set out in Chapter 8.

third case – Public Prosecutor v Knight Glenn Jeyasingnam [1999] 2 SLR 499 – the court

exercised its constitutional power in the administration of justice to extend the policy of

consensual settlement in civil cases to cover criminal cases. The High Court held that the plea

bargaining statement made by a defendant in criminal proceedings was not admissible

evidence. In response to the Public Prosecutor’s argument that the Parliament had not seen fit

to exercise its legislative power under Art 58 of the Constitution to prescribe the conditions

applicable to plea bargaining, the Court held that “the judiciary has the decision making

power to affect whatever concerns the administration of justice” (para 70).

16 Jolene Lin, “The Judicialization of Governance: The Case of Singapore”, Ch 13 in Tom

Ginsburg and Albert H. Y. Chen (eds), Administrative Law and Governance in Asia (London

and New York: Routledge, 2009), at p 288.

17 For example, Ng Ka Ling & Others v Director of Immigration [1999] 1 HKLRD 315, Chan

Kam Nga & Others v Director of Immigration [1999] 1 HKLRD 304, Secretary for Justice &

Others v Chan Wah & Others [2000] 3 HKLRD 641, Ng Siu Tung & Others v Director of

Immigration [2002] 1 HKLRD 561 and Gurung Kesh Bahadur v Director of Immigration

[2002] 2 HKLRD 775, to mention just some of those which reached the Court of Final Appeal.

For administrative law cases, see Johannes Chan, “Administrative Law, Politics and

Governance: The Hong Kong Experience” Ch 8 in Tom Ginsburg and Albert H.Y. Chen (eds),

Administrative Law and Governance in Asia (London and New York: Routledge, 2009).

10

Part III seeks to apply the theories discussed in Chapter 3 to explain

the findings in Part II. Given the more democratic political structure in

Singapore, a possible explanation for the difference is the counter-majoritarian

difficulty, with the courts there exercising the passive virtues and other

avoidance canons much more frequently than do the Hong Kong courts.

Chapter 9 will compare the incidence of any avoidance canons being used by

the two judiciaries in order to ascertain whether the use has anything to do

with the counter-majoritarian difficulty.

Even though a globalisation of human rights standards has been taking

place,18

it will be seen, in Part II, that Singapore differs significantly from –

but Hong Kong follows – the major common law jurisdictions in terms of the

approaches to constitutional interpretation as well as the substantive standards

of constitutional rights. It would not be an exaggeration to say that the

constitutional review of legislation, in fact, does not exist in Singapore. As a

matter of political morality, is the judicial restraint in Singapore justified on

ground of the counter-majoritarian difficulty? Or, more generally, is the

judicial review of legislation justified in the two places having regard to

Waldron’s process-based objection on the one hand and on the other hand,

Cross’s and Fallon’s Cross’s multiple-veto argument? Those questions are the

subject of Chapter 10.

It will be concluded in Chapter 10 that for different reasons,

constitutional review is justified in both Singapore and Hong Kong. That it is

practised in Hong Kong but not actually in Singapore can be explained by the

rights culture – the strong rights commitment in Hong Kong as compared with

the political apathy among the people of Singapore. Chapter 11 contains a

brief survey of the historical, political, economic and social conditions leading

to the two cultures. Bickel sees judicial review as contributing to the

18

Anthony Mason, “The Place of Comparative Law in Developing the Jurisprudence on the

Rule of Law and Human Rights in Hong Kong” (2007) 37 HKLJ 299, pp 301 – 302.

11

legitimacy of the government. Chapter 11 will also discuss what, if anything,

the two judiciaries have been contributing or can contribute further to the

legitimacy of their respective governments, given the level of rights

commitment in the two societies.

In the light of the discussions from Chapters 9 to 11, the existence or

otherwise of a rights-committed culture appears to explain the divergence in

approaches to and standard of constitutional review between Singapore and

Hong Kong. Chapter 12 concludes the thesis by suggesting how the culture

impacts on the counter-majoritarian difficulty, passive virtues and judicial

independence.

12

CHAPTER 2 –

PRELUDES

TO CONSTITUTIONAL REVIEW

2.1 THOMAS HOBBES AND JOHN LOCKE ON

CONSTITUTIONALISM

Thomas Hobbes and John Locke, both social contract theorists,

postulate that men gave up their right to self-defence in the state of nature and

formed themselves into a political society for the sake of self-preservation,19

namely to avoid the state of war or what is characterised by Hobbes as a “war

of every man against every man”.20

The two thinkers differ sharply on the

citizens’ rights and the government’s powers in the society. To Hobbes, the

citizens have no right other than those conferred on them by laws enacted by

the sovereign (initially elected but may be hereditary after formation of the

state), who has absolute sovereignty and unlimited powers. In contrast,

Locke – “the man usually seen as the founder and perhaps greatest

representative of the liberal tradition altogether”21

– sees men to be born free

and equal. They retain such rights after joining the society. The powers of the

elected government are limited to those which are necessary to protect the

citizens’ natural rights to liberty and equality. While espousing the

legislature’s supervision of the executive’s powers to implement legislation,

19

Thomas Hobbes, Leviathan, edited with an Introduction by J.C.A. Gaskin (Oxford: Oxford

University Press, 1996) and John Locke, “The Second Treatise of Government: An Essay

Concerning the True Original, Extent and End of Civil Government” in Two Treatises of

Government, edited with an introduction and notes by Peter Leslett (Cambridge: Cambridge

University Press, Student Edition, 1988).

20 Hobbes (n 19 above), Ch XIII, para 8.

21 Michael P. Zuckett, Launching Liberalism: On Lockean Political Philosophy (Lawrence:

University Press of Kansas, 2002), p 311.

13

Locke leaves the policing of the legislature’s exercise of powers to “the

people”, who may apply sanctions through elections held at regular intervals

or, in the desperate and extreme cases, through revolution. The “Second

Treatise” is silent on whether and if so, how, “the people” are to play such a

policing role in the intervening period between elections.

2.2 POLICING THE LIMITS OF THE

SOVEREIGN’S POWERS

The French political writer Montesquieu is often credited as the

exponent of the modern formula of checks and balance through the separation

of powers – legislature, executive and judiciary. In his ambitious work De

L’esprit Des Lois, he regards England as a nation which protects the

individuals’ liberty by putting the three powers in different hands.22

The

English judiciary interprets legislation and invalidates the executive’s acts

when they exceed the statutory limit. Yet, England does not have a written

constitution and pursuant to the doctrine of parliamentary sovereignty or

legislative supremacy, the judiciary does not have the power to strike down

any statute enacted by the Parliament,23

even though occasionally, apparently

22

Baron de Montesquieu, The Spirit of the Laws, translated by Thomas Nugent with an

introduction by Franz Neumann (New York: Hafner Publishing Company, reprinted 1962),

Book XI: “Of the Laws Which Establish Political Liberty with Regard to the Constitution”.

23 In the English legal concept of “parliamentary sovereignty”, the word “Parliament” refers to

the Monarch, the House of Lords and the House of Commons acting jointly and can more

appropriately be described as “the Queen in Parliament” or “the King in Parliament”. “The

principle of Parliamentary sovereignty means neither more nor less than this, namely, that

Parliament thus defined has, under the English constitution, the right to make or unmake any

law whatever; and, further, that no person or body is recognised by the law of England as

having a right to override or set aside the legislation of Parliament.”: A.V. Dicey, Introduction

to the Study of the Law of the Constitution (London: Macmillan, 10 edn, 1959), pp 39 – 40.

The concept took root “(i)n the second half of the [18th

] century, [when] almost all politicians,

lawyers, and political theorists agreed that Parliament possessed a legally unlimited legislative

14

to protect its independent judicial power in the interests of the separation of

powers, judges have employed interpretative techniques to give statutory

provisions, in the name of identifying the “legislative intention”, meanings

different from those signified literally by the words and actually intended by

the Parliament. 24

From both the legal and political morality’s points of view,

the extent to which English judges can use their interpretative powers to

restrain the Parliament are limited. The English judiciary does not, therefore,

authority within Britain”: Jeffrey Goldsworthy, The Sovereignty of Parliament: History and

Philosophy (Oxford: Clarendon Press; New York: Oxford University Press, 1999), p 233.

24 The courts may adopt what McWhinney refers to as “indirect judicial review” or “judicial

braking”, ie a court “says, in effect, in the process of interpretation of a statute, that the

legislature may or may not have the claimed legislative power, but it has not, in the language

it has used in the enactment now in question, employed that power”: see Edward McWhinney,

Judicial Review (Canada: University of Toronto Press, 4th edn, 1969), p 13. Tate adds that

“(w)hen courts are exercising indirect judicial review they conclude typically that ‘Parliament

could not have intended’ the result being rejected because that result would be inconsistent

with some other clear intention of Parliament, common law principles, or the provisions of

well-accepted legal principles”: see C. Neale Tate, “Comparative Judicial Review and Public

Policy: Concepts and Overview”, Ch 1 in Donald W. Jackson and C. Neale Tate (eds),

Comparative Judicial Review and Public Policy (Westport, Connecticut; London: Greenwood

Press, 1992), p 5. Such principles would include the rules of presumption in statutory

interpretation, such as presumption against ouster of the court’s jurisdiction, presumption

against interference with vested rights and presumption in favour of the protection of

individual liberty – see John Bell and George Engle, Cross: Statutory Interpretation (London;

Dublin; Edinburg: Butterworths, 1995), pp 170-183. See, for example, Liversidge v Anderson

[1942] AC 206, HL, Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147,

HL and R v Inland Revenue Commissioners, Ex parte Rossminster [1980] AC 952, at 967 –

990 CA. The three cases are discussed in Ian Loveland, Constitutional Law, Administrative

Law, and Human Rights: A Critical Introduction (Oxford; New York: Oxford University

Press, 4th

edn, 2006), Ch 3: “The Rule of Law and the Separation of Powers” and Ch 4: “The

Royal Prerogative”. For a defence of the interpretative concept of “legislative intention”, see

section 164 “Is legislative intention fictitious?” in Bennion on Statutory Interpretation: A

Code (London: LexisNexis, 5th

edn, 2008).

15

fill the gap left by Locke about policing the boundary of the legislature’s

powers.

Allan seems to suggest that the broad concept of “the rule of law”

itself, even in the absence of a written constitution, would justify the courts’

taking a more robust stand in placing limits on the legislature. In a book which

“draws heavily on the constitutional law of several common law jurisdictions”

and seeks to “identify and illustrate the basic principles of liberal

constitutionalism”,25

he writes:

“When the courts are confronted by the starkest violations of equality

and due process, an interpretative approach may be too weak (or

implausible) to provide adequate protection against arbitrary power. It

may therefore be necessary (and most straightforward) to repudiate the

offending legislative provision altogether.”26

Allan is stating what, in his view, could or should happen. The actual situation

is different. Courts in the United Kingdom do not have the power to repudiate

any rights-violating legislation even after the Human Rights Act 1998.27

25

T.R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford; New

York: Oxford University Press, 2001), “Preface”.

26 Ibid, p 233.

27 Under section 4 of the Human Rights Act 1998, a court may declare that a statutory

provision is incompatible with the European Convention on Human Rights but the declaration

“(a) does not affect the validity, continuing operation or enforcement of the provision in

respect of which it is given; and (b) is not binding on the parties to the proceedings in which it

is made” (section 4(6)). The common law principle that the court has no power to invalidate a

statutory provision is reaffirmed by the House of Lords in R (Jackson) v Attorney General

[2006] 1 AC 262: “The authority of Pickin v British Railway Board [1974] AC 765 is

unquestioned, and it was there very clearly decided that ‘the courts in this country have no

power to declare enacted law to be invalid’ (per Lord Simon of Glaisdale, at p 798).” (Para 27,

per Lord Bingham of Cornhill).

16

In other parts of the common law world, “(a)lthough judicial review on

federalism grounds has been a feature of the Canadian constitution since the

early days of the Confederation, the tradition of parliamentary supremacy

remained strong until the advent of the Charter [of Rights and Freedoms in

1982].”28

The Constitution Act 1982, which entrenches the Charter, also

entrenches the principle that any law inconsistent with the Constitution is “of

no force or effect” (section 52(1)). Parliamentary supremacy is preserved,

however, to the extent that under section 33 of the Charter, the Parliament or

the legislature of a province may expressly declare a legislative provision to

continue operation, for five years under each renewable declaration,

notwithstanding inconsistency with some of the rights and freedoms

guaranteed by the Charter. In New Zealand, one of the three major

democracies which “can still be said (more or less) to have unwritten

constitutions and sovereign parliaments”,29

section 4 of the Bill of Rights Act

1990 expressly provides that the court shall not invalidate or render ineffective

any legislation, including pre-existing one, on the sole ground of

inconsistency with the Act. Nevertheless, NZ judges, like their UK

counterparts, are inclined to use the interpretative provision in section 6,30

to

make creative interpretation of legislation in order to protect rights.31

28

Robert J. Sharpe and Katherine E. Swinton, The Charter of Rights and Freedoms (Toronto:

Irwin Law, 1998), p 18. For an account of the history leading to the Charter, see Frederick

Vaughan, “Judicial Politics in Canada: Patters and Trends”, pp 3 – 26 in Paul Howe and Peter

H. Russell (eds), Judicial Power and Canadian Democracy (Montreal & Kingston; London;

Ithaca: McGill-Queen’s University Press, 2001).

29 James Allan, “The Effect of a Statutory Bill of Rights Where Parliament Is Sovereign: the

Lessons from New Zealand”, Ch 20 in Tom Campbell et al (eds), Sceptical Essays on Human

Rights (New York: Oxford University Press 2003), p 375.

30 Section 6 of the Act provides that when interpreting an enactment, a meaning which is

consistent with the rights and freedoms contained in the Act “shall be preferred to any other

meaning”.

31 Allan (n 29 above), pp 377 – 388 and Grant Huscroft, “Protecting Rights and Parliamentary

Sovereignty: New Zealand’s Experience with a Charter-inspired Statutory Bill of Rights”

(2002) 21 Windsor Year Book of Access to Justice 111, pp 118 – 120.

17

The term “weak judicial review” or “weak-form judicial review” – as

distinct from “strong” or “strong-form” one whereby the judicial may

invalidate a statutory provision on ground of unconstitutionality – has been

used to describe the situations in the United Kingdom, Canada and New

Zealand.32

The NZ system, in which the court can do no more than using

interpretative techniques to ameliorate or even depart from the legislature’s

intention, is the weakest and “may perhaps not deserve the name of

constitutional review at all”.33

The system in each of the three jurisdictions

culminates from intense debates and can be taken as the political judgment,

exercised by the country as a whole, as regards the relative trust to place

between the elected politicians and the unelected judges in the protection of

the individuals’ rights.34

2.3 MARBURY V MADISON 35

2.3.1 The case

The US Supreme Court case of Marbury v Madison is the most

famous – though not the first – case in the common law world establishing the

judiciary’s power to pronounce as unconstitutional, and therefore invalid, an

32

Jeremy Waldron, “The Core of the Case Against Judicial Review” (2006) 115 Yale Law

Journal 1346, pp 1353 – 1357 and Mark Tushnet, “The Rise of Weak-form Judicial Review”,

paper delivered at Australian National University College of Law on 20 May 2010, available

on http://law.anu.edu.au/news/2010_College_Seminars/Tushnet_paper.pdf on 5 August 2010,

pp 6 – 11.

33 Tushnet (n 32 above), p 6.

34 See Po Jen Yap, “Rethinking Constitutional Review in America and the Commonwealth:

Judicial Protection of Human Rights in the Common Law World” (2006) 35 The Georgia

Journal of International and Comparative Law 99 for a comparison of the models of

constitutional review in common law countries.

35 5 U.S. (1 Cranch) 137, 177 (1803).

18

act passed by the legislature.36

“Marbury thus passed instantly into legend as

the icon of judicial review by an independent judiciary, balance-of-powers,

check-and-balances, and the rule of law. It has been cited as shorthand for

these principles ever since.”37

Yet, the legitimacy of constitutional review of

legislation is still contested in the academic circle and will be discussed in

Chapter 3.

Marbury v Madison resulted from a struggle between two political

parties to gain control over the federal judiciary.38

The issue in the case was

36

For judicial review of legislation in the United States prior to Marbury, see Louis Fisher

and David Gray Adler, American Constitutional Law (Durham, North Carolina: Carolina

Academic Press, 2007), pp 36-38 (“The Pre-Marbury Precedents”) and pp 41-43 (“C. The

Road to Marbury”); Larry D. Kramer, “Foreword: We the Court” (2001) 115 Harvard Law

Rev 4; and James Bradley Thayer, “The Origin and Scope of the American Doctrine of

Constitutional Law” in Legal Essays (Boston: Boston Book Co., 1908) – accessed via

HeinOnline.org on 14 June 2008 – pp 1-40, at pp 1-7; Daniel J. Hulsebosch, “A Discrete and

Cosmopolitan Minority: The Loyalists, the Atlantic World, and the Origins of Judicial

Review” (2006) 81 Chicago-Kent Law Review 825 – accessed via www.lexis.com on 16 June

2008.

37 Robert J. Morris, A Comparative Study of the Meaning and Importance of Several

Constitutional Cases in the Highest Courts of the PRC, Hong Kong, & Taiwan, Ph. D Thesis,

The University of Hong Kong, 2007. For a comparison of judicial review in the United States

with that in other common law jurisdiction in terms of structure, theory and form, see Mark

Tushnet, “Marbury v Madison Around the World” (2004) 71 Tennessee Law Review 251.

38 Incumbent Federalist President John Adams was defeated in election by a Republican

candidate Thomas Jefferson. During the half year or so which intervened between the election

and the new presidency, Adams sought to pack the judiciary with his allies by passing the

Judiciary Act of 1801 to create new judicial offices and then nominating Federalists to be

federal judges and justices of peace of the District of Columbia. The appointments were

confirmed by the Federalist-controlled Senate. On the last day of the Adams administration,

the President signed the commissions, on which John Marshall, still serving as Secretary of

State though having already taken oath to be Chief Justice, affixed the seal. When Jefferson

took office, he ordered his Secretary of State, James Madison, not to deliver the commissions.

William Marbury and others, whose commissions for appointment as justices had been

withheld, applied to the Supreme Court for a mandamus to be issued, under section 13 of the

19

whether the court had the power, under section 13 of the Judiciary Act of 1789,

to issue a mandamus directing James Madison, Secretary of State, to deliver

the relevant commissions, already signed and sealed by the outgoing

Administration on the last day of office, for appointments to the federal

judiciary. Chief Justice Marshall should have recused himself in view of his

previous involvement in the matter as Secretary for State.39

He did not.

Delivering the Court’s opinion, he held that the constitutional procedure

required for the appointments had been completed and therefore, the

applicants did have legal right to receive the commissions. The question

remained, however, whether the Court had the power to issue the mandamus.

He held it did not. Under the Constitution, “the supreme court shall have

original jurisdiction in all cases affecting ambassadors, other public ministers

and consuls, and those in which a state shall be a party. In all other cases, the

supreme court shall have appellate jurisdiction”.40

According to the Chief

Justice, to issue mandamus for the delivery of a paper amounted to the

exercise of original jurisdiction. Section 13 of the Judiciary Act, which

purported to empower the Court to issue mandamus to public officers in all

cases, was inconsistent with the constitutional provision that the Court had

original jurisdiction in some cases only, ie those “affecting ambassadors, other

public ministers and counsuls …”.

For the purpose of this thesis, the most important question arising from

the case is: Where did the Court derive the power to invalidate a statutory

provision on ground of inconsistency with the Constitution? Marshall

Judiciary Act of 1789, to direct Madison to deliver the commission. (This brief background is

based on the judgment in Marbury; Fisher and Adler (n 36 above), pp 43-4; and Geoffrey R.

Stone et als, Constitutional Law (New York: Aspen Law & Business, 5th

edn, 2005), pp 29

and 36-37.

39 William W. Van Alstyne, “A Critical Guide to Marbury v Madison”, (1969)1969 Duke L. J.

1. Reproduced in Fisher and Adler (n 36 above), pp 50-52, at p 51.

40 Marbury (n 35 above), at 174. The constitutional provision in question is Article III,

Section 2(2).

20

considered that the power came from the text of the Constitution. Article VI of

the Constitution stated: “The Constitution, and the laws of the United States

which shall be made in pursuance thereof … shall be the supreme law of the

land”. “The Constitution” came first, so Marshall reasoned, and the “laws of

the United States” were “the supreme law of the land” only if they were made

“in pursuance” of the Constitution.41

Hence, the article provided for the

supremacy of the Constitution and any legislation repugnant to it was void.42

Since Article III vested in the Court the judicial power in respect of all cases,

“it is emphatically the province and duty of the judicial department to say

what the law is. Those who apply the law to particular cases, must of necessity

expound and interpret the rule”.43

Summing up the judgment, Marshall stated:

“Thus, the particular phraseology of the constitution of the United

States confirms and strengthens the principle, supposed to be essential

to all written constitutions, that a law repugnant to the constitution is

void; and that courts, as well as other departments, are bound by that

instrument.”44

2.3.2 The Politics

The modern approach in a case like this would be to interpret the

statute in such a manner as would render it, as far as possible, consistent with

the constitution.45

By adopting the approach, the Court could have held that

section 13 was constitutional but only to the extent that it authorised the Court

41

Ibid, at 180.

42 Ibid, at 177.

43 Ibid, at 177.

44 Ibid, at 180.

45 An example of such an approach is section 3(1) of the United Kingdom’s Human Rights

Act 1998, which provides that “So far as it is possible to do so, primary legislation and

subordinate legislation must be read and given effect in a way which is compatible with the

Convention rights”.

21

to issue mandamus in “cases affecting ambassadors, other public ministers and

counsuls …”. Marbury was such a case as the defendant was a public minister.

Such an approach would enable Marshall to grant the mandamus sought.

However, party politics was such that the Jefferson administration might

simply ignore the order. Then, Marbury would not have become the precedent

for the Court to strike down legislation.

Or, the word “affecting” in Article III could be interpreted to mean that

the cases must affect the rights or interests of plaintiffs who were

“ambassadors, other public ministers and consuls”. In that case, Marshall

could have declined the mandamus application on the ground that it was

beyond the Court’s power under Article III to exercise original jurisdiction in

a case “affecting” judges and not “ambassadors, other public ministers and

consuls”. The reasoning would have been much more direct. The Court

would have no need to go into the big question of whether it had the power to

invalidate a legislative act.

Marbury contains no clue as to which of the two interpretations of

“affecting” Marshall had in mind. Commentators believe that Marshall was

politically motivated when he chose to go down the route of invalidating

section 13 of the Judiciary Act in its entirety. Bork, for example, considers the

case could have been disposed of by adopting the second interpretation of the

word “affecting” above. In a scathing attack labelling the opinion in Marbury

as “lengthy, skilful, and intellectually dishonest”, he alleged Marshall to

“articulate a basis for a broad power of judicial review” while “saving himself

and the Court from the embarrassment of being defied by the defendant,

James Madison”.46

46

Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges (Washington D.C.: The

AIE Press, 2003), p 54.

22

Marbury is commonly seen as a case representing judicial

independence and the separation of law from politics. Yet, when viewed

against the partisan disputes mentioned above, some of the Court’s arguments

were apparently politically motivated and revealed “the federal judiciary’s felt

lack of independence from politics”.47

Marshall formulated his reasoning and

conclusion in such a way as would establish the Court’s power of judicial

review while avoiding defiance by the political branches. Ginsburg postulates

that politicians drafting a new constitution, if they foresee themselves to lose

in the post-constitution election, would “seek to entrench judicial review as a

form of political insurance … to challenge the legislature”48

and that courts

would restrain themselves to exercise such power within the tolerance zones

of the political branches.49

In Marbury, a judge of a party which had lost the

election simply read into Constitution a wide judicial power which might or

might not have been intended by the Framers. Ginsburg’s theory, intended for

new democracies in Asia, appears to apply in the United States when it was

still a relatively new democracy.

2.3.3 Possible theories to support the reasoning in Marbury

Kelsen’s Pure Theory of Law can conceivably be summoned to

support the reasoning in Marbury. This is not surprising considering that

Kelsen was one of the drafters of the constitution of 1920 for the first republic

of Austria, which contained the prototype of the abstract constitutional review

of legislation (ie review before or after enactment without applying the

47

Sanford Levinson and Jack M. Balkin, “What Are the Facts of Marbury v Madison?” (2000)

20 Constitutional Commentary 255, at 262.

48 Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases

(Cambridge: Cambridge University Press: 2003).

49 Ibid, pp 68-9.

23

legislation in a concrete case) now practised by constitutional courts in

Europe.50

To Kelsen, the state is a “relatively centralised legal order”51

consisting of a “hierarchy of different levels of legal norms”52

A norm derives

its validity from a higher norm. In a state with a written constitution, the

written constitution provides validity to all statutes. Dynamically, it

“determines the organs authorised to create general legal norms – statutes and

ordinance”.53

It may also, statically, “determine the content of future statutes:

positive constitutions do this frequently by prescribing and excluding certain

contents”.54

The role of a judge is to apply a legal norm to a particular case.

Surely the most important decision to be made by a judge is whether the norm

concerned is valid. Marshall was saying as much in his statement “it is

emphatically the province and duty of the judicial department to say what the

law is”. The consideration of the validity of the norm requires a judge to

interpret not only the norm itself, but also the higher norm concerned – in the

case of Marbury, the Constitution – to ascertain whether the static and

dynamic principles are complied with. Section 13 of the Judiciary Act, as

interpreted by Marshall, breached Article III, section 2(2) of the Constitution

statically and hence, was invalid. This is just another way of expressing

Marshall’s view that a law which is repugnant to the Constitution is void.55

50

Alec Stone, “Abstract Constitutional Review and Policy Making in Western Europe”, Ch 4

in Donald W. Jackson and C. Neal Tate (eds), Comparative Judicial Review and Public

Policy (Westport, Connecticut; London: Greenwood Press, 1992), at p 43.

51 Hans Kelsen, Pure Theory of Law, Translated from the Second (Revised and Enlarged)

German Edition by Max Knight (Berkeley; Los Angels; London: University of California

Press, 1970), pp 286-290.

52 Ibid, p 221.

53 Ibid, p 222-3.

54 Ibid, p 223.

55 Kelsen’s theory of the state as a “relatively centralised legal order” contrasts with Carl

Schmitt’s theory of the state as, in Hans Lindahl’s words, “the assemblage of two different

and ultimately antagonistic components, namely a system of political activity, and a series of

24

The above analysis based on Kelsen’s pure theory can be defeated if

the Constitution “is not law in the ordinary sense, but is merely a set of

suggestions or exhortations or directions”.56

However, Article VI does

establish the Constitution to be part of the “supreme Law of the Land”. The

article provides the single strongest support for Marshall’s claim that the

court’s power to conduct judicial review is derived from the text of the

Constitution. Though “judicial power” in Article III does not expressly confer

on the courts the power to strike down legislation on ground of

unconstitutionality, Kelsen’s pure theory would have it that the dutiful

exercise of “judicial power” does require a judge to interpret both the higher

and lower norms and declare the latter to be invalid if it is inconsistent, under

either the dynamic or the static principle, with the higher norm.

Tremblay’s “General Legitimacy of Judicial Review” also provides a

similar strategy, as does Kelsen’s theory, to support Marshall’s argument that

the Court’s power of judicial review is derived from the Constitution. Under

the General Legitimacy Thesis, the question to ask is not whether there is any

specific authorization for judicial review. Rather, the legitimacy of judicial

review “depends on the fact that there is no moral principle entailing that this

legal restrictions imposed on that activity with a view to the protection of individuals” – see

Hans Lindahl, “Constituent Power and Reflexive Identity: Towards an Ontology of Collective

Selfhood” in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism

(Oxford: Oxford University Press, 2007), pp 9-24, at p 9. Schmitt was a German jurist. For

two translations of his works, see Carl Schmitt, Legality and Legitimacy, translated by Jeffrey

Seitzer (Durham; London: Duke University Press, 2004) and Carl Schmitt, Political

Theoology: Four Chapters on the Concept of Sovereignty, translated and with an Introduction

by George Schwab (Chicago and London: The University of Chicago Press, 2005). For a

philosophical exposition of Kelsen’s theory of constitutional review, see Lars Vinx, Legality

and Legitimacy in Hans Kelsen’s Pure Theory of Law, Ph. D. thesis, University of Toronto,

2006, accessed vide http://library.hku.hk/record=b3844295 on 5 June 2008.

56 Charles L. Black, Jr, The People and the Court (New York: The Macmillan Co, 1960), p 9.

25

action or decision is ‘impermissible’ ”.57

For the judiciary’s act or decision to

be legitimate, it must not recognise or uphold “norms that are not legal or laws

that (sic) not legitimate”.58

This means that judges, when called upon to

enforce a legislative act, is duty bound to verify whether the act complies with

“a set of antecedent norms specifying the features particular constitutional

interpretations must possess in order to be recognised by the courts as

binding”.59

Such norms are to be found in the written constitution where one

exists. The fact that the Constitution confers judicial powers on the Court and

that nothing in the Constitution or elsewhere precludes judicial review would,

therefore, entitle Marshall to claim that the Court should refuse to enforce

legislation it considers to be inconsistent with the antecedent norms existing,

implicitly or explicitly, in the Constitution.

In similar vein, Robert J. Reinstein and Mark C. Rahdert consider that

Marbury was based not so much on the separation of powers as often thought,

but instead on the principles in the rule of law, “including legal positivism; the

right of individuals to claim the protection of the laws; the ideal that

government is constrained by and subject to the laws; and the role of courts in

constitutional government”.60

This finding, at first sight, is not much of a

discovery since such fundamental principles are necessarily behind all judicial

decisions. That Chief Justice Marshall did have the separation of powers in

mind is evident from his rhetorical question: “To what purpose are powers

limited, and to what purpose is that limitation committed in writing, if these

limits may, at any time, be passed by those intended to be restrained?”61

A

close look at the judgment, however, confirms the two commentators’ view

57

Luc B. Tremblay, “General Legitimacy of Judicial Review and the Fundamental Basis of

Constitutional Law” (2003) 23 Oxford Journal of Legal Studies 525, 538.

58 Ibid, p 540.

59 Ibid, p 553.

60 Robert J. Reinstein and Mark C. Rahdert, “Reconstructing Marbury” (2005) 56 Arkansas

Law Review 729, at p 736.

61 Marbury (n 35 above), p 176.

26

that the decision in Marbury to strike down – or more correctly, not to

enforce – any unconstitutional legislation was primarily based, and can be

justified, on the rule of law alone. The significance, as they point out, is that

Marbury provides the reasoning for judicial review in any jurisdiction which

honours the rule of law, even if the separation of powers does not exist (as in

China) and the constitution does not expressly provide for judicial review.

Bickel disputes Marshall’s claim that the text of the Constitution

authorises judicial review.62

Indeed, even to this day, scholars differ on

whether the Framers did intend to give the Court such power.63

I shall not go

into the question here. Even if the Framers had harboured such intention and

embedded it in the Constitution, the question would remain whether, as a

matter of political morality, the judiciary – in the United States or elsewhere –

should be vested with such power.

62

Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of

Politics (New Haven; London: Yale University Press, 2nd

edn, 1986), pp 1-13.

63 Kramer, accepting the benefits of judicial review to be “functional and instrumental”,

opines that “history makes … clear that judicial review is not required by the structure of our

Constitution, much less implicit in the very notion of a written constitution” – Kramer (n 36

above), p 166. Prakash and Yoo opined, however, that both the structure of the Constitution

and the relevant historical records suggest the Founders did intend that courts would conduct

judicial review of federal legislation – Saikrishna B. Prakash and John C. Yoo, “The Origins

of Judicial Review” (2003) 70 University of Chicago Law Review 887, accessed via

www.lexis.com on 16 June 2008. This led to further articles: Larry D. Kramer, “The

Constitutional Origins of Judicial Review: When Lawyers Do History” (2003) 72 George

Washington Law Review 387, accessed via www.lexis.com on 16 June 2008; and Saikrishna B.

Prakash and John C. Yoo, “The Constitutional Origins of Judicial Review: Questions for the

Critics of Judicial Review” (2003) 72 George Washington Law Review 354 – accessed via

ww.lexis.com on 16 June 2008.

27

CHAPTER 3 -

COUNTER-MAJORITARIAN DIFFICULTY,

PASSIVE VIRTUES

AND NEW JUDICIAL MINIMALISM

3.1 INTRODUCTION

In his book The Least Dangerous Branch,64

which has become a

classic on the constitutional review of legislation, Alexander M. Bickel

challenges the opinion in Marbury that the text of the US Constitution confers

on the Supreme Court the power to invalidate legislation on ground of

unconstitutionality. He coins the expression “countermajoritarian difficulty”

to describe the objection to appointed judges’ over-ruling decisions made by a

democratically elected legislature. He seeks to ameliorate the difficulty by

arguing that judges are better equipped and more prepared, than elected

politicians, to identify and implement the long-term needs of the society and

also, judicial review enhances the legitimacy of the government as a whole.

Balancing the long-term and immediate needs of the society, he opines that

judges should, until the long-term principles involved are “ripe for

adjudication”, exercise what he calls the “passive virtues”, ie to decide neither

to validate nor invalidate legislation which is inconsistent with such principles.

Bickel has inspired the New Minimalists, among whom Cass R. Sunstein is

probably the most prolific writer. The theories of Bickel and Sunstein will be

presented in Section 3.2.

64

Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of

Politics (New Haven; London: Yale University Press, 2nd

edn, 1986).

28

The counter-majoritarian difficulty leads to a debate on the legitimacy

or otherwise of judicial review. A fervent critic of judicial review is Jeremy

Waldron, said to have presented “a compelling criticism of the theoretical

basis of the American faith in ‘judicial review’ ” and made “a complete

success” to “knock down bad philosophical arguments”.65

While most theories

on judicial review are formulated in the context of the US Constitution,

Waldron intends his argument against the institution to be “independent of

both its historical manifestations and questions about its particular effects”.66

Those two reasons explain why his theory has been singled out for discussion

in this thesis. In Section 3.4, his argument that judicial review is undemocratic

and illegitimate will be pitched against the opposing views of his teacher and

“favourite whipping boy” Ronald Dworkin,67

Frank B. Cross and Richard H.

Fallon, Jr.

3.2 COUNTER-MAJORITARIAN DIFFICULTY,

PASSIVE VIRTUES AND NEW JUDICIAL

MINIMALISM

3.2.1 Counter-majoritarian difficulty

Bickel accepts that a statute is void when it is repugnant to the

Constitution. The question is who to decide on the repugnancy or otherwise.68

Marshall argued that the legislature should not police the limit of its own

65

Richard A. Posner, “Review of Jeremy Waldron, Law and Disagreement” (2000) 100

Columbia Law Review 582, at pp 582 and 592.

66 Jeremy Waldron, “The Core of the Case Against Judicial Review”, (2006) 115 Yale Law

Journal 1346, 1351.

67 Posner (n 65) above, p 589.

68 Bickel (n 64 above), p 3.

29

power.69

Why, Bickel asks, can it not be done by the President or the people

themselves? Explaining the “counter-majoritarian difficulty”, he concedes

that under the complex electoral process in the United States, government

decisions may represent the interests of minority groups and not those of the

majority. “(I)t remains true nevertheless that only those minorities rule which

can command the votes of a majority of individuals in the legislature who can

command the votes of a majority of individuals in the electorate.”70

It is,

therefore, “a deviant institution in the American democracy” for the Court to

strike down statutes which “are the products of the legislature and the

executive acting in concert”.71

Judicial review may be one of the means other than the electoral

process to make the government responsive to the needs and wishes of the

people. However, it “expresses … a form of distrust of the legislature”.72

Therefore, “(b)esides being a counter-majoritarian check on the legislature

and the executive, judicial review may, in a large sense, have a tendency over

time seriously to weaken the democratic process”.73

Where democracy is gone

from the society, the courts can do nothing to protect the principles of equity

and fair play. Hence, “judicial review runs so fundamentally counter to

democratic theory that in a society which in all other respects rests on that

theory, judicial review cannot ultimately be effective”.74

69

See n 61 above and accompanying text.

70 Bickel (n 64 above), p 19.

71 Bickel (n 64 above), p 18.

72 Ibid, p 21.

73 Ibid.

74 Ibid, p 23.

30

3.2.2 Countervailing judgments

Bickel considers that no argument can meet the counter-majoritarian

difficulty in full. It can only be alleviated by countervailing judgments based

on the real needs of the society. Those countervailing judgments must satisfy

the following requirements:

“The search must be for a function which might (indeed, must) involve

the making of policy, yet which differs from the legislative and

executive functions; which is peculiarly suited to the capabilities of the

courts; which will not likely be performed elsewhere if the courts do

not assume it; which can be so exercised as to be acceptable in a

society that generally shares Judge Hand’s satisfaction in a ‘sense of

common venture’; which will be effective when needed; and whose

discharge the courts will not lower the quality of the other

departments’ performance by denuding them of the dignity and burden

of their own responsibility.”75

According to Bickel, public decisions should be based on “enduring

values” (“acting on principle”) as well as “immediate needs” (“acting on

expediency”).76

Legislators, when coming under pressure for immediate needs,

“ordinarily prefer to act on expediency rather than take the long view”.77

To

meet the deficiency, the judiciary’s constitutional function is to act as “the

pronouncer and guardian” of “enduring values” 78

and “to define values and

proclaim principles”.79

In terms of institutional competence, “courts have

certain capacities for dealing with matters of principle that legislatures and

75

Ibid, p 24.

76 Ibid, p 25.

77 Ibid, p 25.

78 Ibid, p 24.

79 Ibid, p 68.

31

executives do not possess. Judges have, or should have, the leisure, the

training, and the insulation to follow the ways of the scholar in pursuing the

ends of government”, which is “crucial in sorting out the enduring values of a

society”.80

The judiciary’s other advantage relates to the judicial process.

“Statutes, after all, deal typically with abstract or dimly foreseen problems.

The courts are concerned with the flesh and blood of a case.”81

Adjudication

of actual cases is conducive “to the evolution of principle by a process that

tests as it creates”.82

As an additional justification, Bickel develops Black’s idea of judicial

review performing a legitimating as well as a checking function. To Black, a

government cannot attain legitimacy if its actions “are not, by and large,

received as authorised” by the people.83

The US government is one of limited

powers. A corollary to the courts’ checking the government’s powers is that

where the courts declare certain government’s decisions as not

unconstitutional, they place “the affirmative stamp of legitimacy” on the

actions, thus mollifying those whose interests are adversely affected by the

actions.84

Through judicial review, Bickel says, “the Court can bring about

acquiescence by assuring those who have lost a political fight that merely

momentary interest, not fundamental principle, was in play”.85

3.2.3 Principle versus expediency

Having found the countervailing judgments and since judicial review

is too well established to be reversible, Bickel looks for a standard of review

80

Ibid, pp 25-26.

81 Ibid, p 26.

82 Ibid.

83 Charles L. Black, Jr, The People and the Court (New York: The Macmillan Co, 1960), p 37.

84 Ibid, Chs II and III.

85 Bickel (n 64 above), p 30.

32

which would strike the right balance between the counter-majoritarian

difficulty and the judiciary’s constitutional competence or in other words,

between judicial restraint and judicial activism. He intends the standard to be

both descriptive and prescriptive.

The theories of James Bradley Thayer and Judge Learned Hand, in his

view, lean too much to the side of restraint. Under James Bradley Thayer’s

“rule of clear mistake”, the Court could strike down a statute as

unconstitutional only “when those who have the right to make laws have not

merely made a mistake, but have made a very clear one, – so clear that it is not

open to rational question".86

Bickel considers the rule to be a distrust of

judicial review and narrow unduly the scope of the Court’s power to police the

constitutional limits of the political branches’ power. The Court should see to

it that the legislative or executive action in question represents a good, and not

just a rational, choice. He amends Thayer’s rule to read: “What is rational, and

rests on an unquestioned, shared choice of values, is constitutional”.87

Judge Learned Hand, while regarding the judiciary as best suited to

“keep the states, Congress, and the President within their prescribed

powers”,88

holds that so long as the political branches are acting within their

functions, it is not for the Court to duplicate their work and challenge the

propriety of their choices of action. Bickel points out that Hand’s judicial

restraint amounts to “nearly total abstinence” and does not accord with the

86

Ibid, p 35. Bickel was quoting from Thayer’s “The Origin and Scope of the American

Doctrine of Constitutional Law” (n 36 above), at p 21. At pp 25-30 of his article, Thayer says

the reasons for his rule of clear mistake are the same as for the test adopted by the court in

dismissing the juries’ verdicts in criminal cases and libel cases, namely, “virtue, sense, and

competent knowledge are always to be attributed” to the body which has the duty and the

power to make a decision.

87 Bickel (n 64 above), p 43.

88 Ibid, p 46. Bickel was quoting from L. Hand, The Bill of Rights (Cambridge: Harvard

University Press, 1958).

33

existing practice. The existing practice, for which “roomier justification …

supportable in principle” is available, does not, as Hand fears, result in the

Court duplicating the work of the legislature.89

Herbert Wechsler’s rule of neutral principles, which is at the other end

of the restraint-activism spectrum, appears to have inspired the “principle

versus expediency” dichotomy in Bickel’s theory. Wechsler opines that the

text of the Constitution does confer on the judiciary the power to conduct

judicial review. Therefore the only occasion on which the Court can properly

abstain from making a decision is when “the Constitution has committed the

determination of the issue to another agency of government than the courts”.90

The duty of a court of law requires it to make principled decisions. “A

principled decision … is one that rests on reasons with respect to all the issues

in the case, reasons that in their generality and their neutrality transcend any

immediate result that is involved. When no sufficient reasons of this kind can

be assigned for overturning value choices of the other branches of the

Government or of a state, those choices must, of course, survive.”91

The

approach, according to Wechsler, represents “a middle ground between a

judicial House of Lords and the abandonment of any limitation on the other

branches – a middle ground consisting of judicial action that embodies what

are purely the main qualities of law, its generality and its neutrality”.92

Principles – or enduring values by another name – are indeed the

central feature in Bickel’s theory. However, Wechsler’s middle ground does

not appear to him to be middle enough. While agreeing that judicial review

should be based on principles, Bickel holds that principles should not trump

89

Bickel (n 64 above), p 48.

90 Herbert Wechsler, “Toward Neutral Principles of Constitutional Law” (1959) 73 Harvard

Law Review 1, at 9.

91 Ibid, at 19.

92 Ibid, at 16.

34

expediency. No principle should or can be rigidly applied without

consideration of the immediate result. There is no neat dividing line between

principle and expediency. “No society, certainly not a large and heterogeneous

one, can fail in time to explode if it is deprived of the arts of compromise, if it

knows no way of muddling through.”93

To Bickel, principle and expediency can and should co-exist. “By

‘principle’ is meant general propositions, as Holmes called them, deeming

their formation the chief end of man …; organizing ideas of universal validity

in the given universe of a culture and a place, ideas that are often grounded in

ethical and moral presuppositions.”94

“The function of the Justices … is to

immerse themselves in the tradition of our society and of kindred societies

that have gone before, in history and in the sediment of history which is law,

and, as Judge Hand once suggested, in the thought and the vision of the

philosophers and the poets. The Justices will then be fit to extract

‘fundamental presuppositions’ from their deepest selves, but in fact from the

evolving morality of our tradition.”95

3.2.4 Passive virtues

In a constitutional review case, Bickel says, three options are open to

the court: it may strike down the legislative policy, validate the policy or do

neither. For the first two options, the court must act rigorously on principle –

to strike down or to declare valid depending on whether the policy breaches

any principle. As a matter of logic, a policy either does or does not breach any

principle. Why, when and how to “do neither”?

93

Bickel (n 64 above), p 64.

94 Ibid, p 199.

95 Ibid, p 236.

35

On the “why”, Bickel’s answer is that a democratic society operates on

a wide range of principles with new ones for ever evolving over time. It would

be inconsistent with self government – and would render it unwilling or even

impossible for the executive to enforce – if the Court were to strike down each

and every legislative policy breaching any principle, unless one were to limit

“with extreme severity, the kind and thus the number of principles the Court is

permitted to evolve and apply”.96

If the Court were to confine itself to the first

two options only, ie striking down or validating, such limitation “with severe

severity” would entail the Court declaring as valid, or at least as not

unconstitutional, a preponderance of controversial policies. Two undesirable

consequences would result. First, the Court’s image of independence – and

hence the legitimating function of judicial review – would be undermined.

Secondly, the Court’s decision would remove the impetus for the political

branches to review a controversial policy with a view to aligning it with what

may be a new, evolving principle.

The third option of “doing neither” enables the Court to balance

principle against expediency or in other words, to balance its function to

uphold principle against respect for the democratic will. It does not mean

forsaking principle. While doing nothing, the Court may use obiter dicta in its

judgments to perform an “educational function” and engages itself in a

“Socratic colloquy” with the political branches. “All the while, the issue of

principle remains in abeyance and ripens.”97

To do neither is merely to temporize. The Court should validate or

strike down a legislative act when the principle involved is “ripe for

adjudication.” “Yet, though quite significant, the concept of ripeness of the

case does not operate independently and is not alone decisive. … (I)t is in

substantial part a function of a judge’s estimate of the merit of the

96

Ibid, p 200.

97 Ibid, p 71.

36

constitutional issue. A case may be ripe for one judge but not for another,

depending not on their understanding of the fixed concept of ripeness but on

the contours of the ultimate constitutional principle each would evolve and

apply.”98

It would be an overgeneralization to say that the Court should refrain

from adjudicating on a constitutional issue in the first case coming before it.

“And yet it is not far wrong. A sound judicial instinct will generally favour

deflecting the problem in one or more initial cases … so that a cumulative

effect on the judicial mind as well as on public and professional opinion”99

will result. Ripeness means that the principle must have gained “widespread

acceptance”. This is not to be equated with national consensus or otherwise,

the political branches would be in a better position to decide whether such a

consensus has been reached. The Court, while a leader of opinion, is not to

impose its own principles on the community. It “should declare as law only

such principles as will – in time, but in a rather immediate foreseeable future –

gain general assent”.100

Bickel illustrates, with reference to decided cases, a host of the

techniques and devices which can be – and actually have been – adopted by

the Court to do nothing. Consistent with its function to develop a principle in

the light of concrete cases and not in abstract, it should refuse to take on any

case in which the applicant has no “standing” or which does not give rise to

any “case” or “controversy” under Article III of the Constitution. The grounds

for the Court not to intervene may be that the case does not touch “the legal

relations of parties having adverse legal interests”, the interest is not “real and

substantial” or the purported injury does not admit of “specific relief through a

decree of conclusive character”. Even if a “case” or “controversy” does exist,

the Court may, where the political process is in a deadlock, hold the case “lack

of justiciable controversy” and wait until the political institutions have at least

98

Ibid, pp 169-170.

99 Ibid, p 176.

100 Ibid, p 239.

37

come to an initial decision before it passes any judgment.101

That the

legislative act in question is “vague”, amounts to “political questions” or is

otherwise “not justiciable” are further grounds for the Court to hold its hand.

Or, finally, when the Court has to pass judgment on a legislative policy in an

unripe case, it may base its decision on a narrow or factual ground which

avoids the constitutional issue. “The various devices, methods, concepts,

doctrines, and techniques … all techniques of ‘not doing’, devices for

disposing a case while avoiding judgment on the constitutional issue it

raises”102

Bickel calls “the passive virtues”.103

3.2.5 New Judicial Minimalism

Bickel’s ideas of the judiciary avoiding a definitive decision until the

principle is ripe and the judiciary engaging in colloquy with the political

branches have become the common themes of what Peters and Devins call the

“New Judicial Minimalism”.104

The New Minimalists depart from Bickel in

two aspects. First, in contrast to his juricentrism (the judiciary being

independent, co-equal with the political branches and in a better position than

they to apply principles because of the judges’ training and insulation from

political pressure), “the New Minimalism is motivated primarily by

polycentrism – by a desire to preserve the supposed prerogative of the

political branches to make most constitutional decisions, unimpeded by

interference from the judiciary”.105

Secondly – and that appears to be a

101

Ibid, p 146.

102 Ibid, p 169.

103 Ibid, Ch 4: “The Passive Virtues”. Some writers refer to these as the “avoidance

techniques”.

104 Christopher J. Peters and Neal Devins, “Alexander Bickel and the New Judicial

Minimalism”, Ch 3 in Kenneth D. Ward and Cecilia R. Castillo, The Judiciary and American

Democracy (Albany: State University of New York Press, 2005).

105 Ibid, p 58.

38

corollary to polycentrism – the New Minimalists’ minimalism is not just

procedural, but also, substantive.106

Cass R. Sunstein, for one, may dispute this second claim. He asserts

that his minimalism is procedural.107

As he is probably the most prolific writer

among the New Minimalists, a discussion of his works would be in order.

3.2.6 Incompletely theorised agreements and minimalism

In Political Liberalism, John Rawls presents “overlapping consensus”

as the unifying and stabilizing force in a constitutional democracy consisting

of “free and equal citizens … deeply divided by conflicting and even

incommensurable religious, philosophical and moral doctrines”.108

For a

political conception of justice to become an “overlapping consensus”, it would

have to be pitched at an abstract level.109

In legal reasoning, Sunstein sees

social agreement and stability to be reached in the opposite direction. “The

distinctly legal solution to the problem of pluralism is to produce agreement

on particulars, with the thought that most people who are puzzled by general

principles, or who disagree on them, can agree on individual cases.”110

Disputes are to be resolved by “incompletely theorised agreement” –

“incompletely theorised in the sense that it is incompletely specified”111

–

which has “the large advantage of allowing convergence on particular

106

Ibid, p 59-61.

107 Cass R. Sunstein, “Testing Minimalism: A Reply”, (2005) 104 Michigan Law Review 123,

pp 124-125.

108 John Rawls, Political Liberalism (New York: Columbia University Press, 1993), p 134.

109 Ibid, pp 43-45.

110 Cass R. Sunstein, Legal Reasoning and Political Conflict (New York; Oxford: Oxford

University Press, 1996), p 47.

111 Ibid, p 35.

39

outcomes by people unable to reach an accord on general principles”.112

ITAs

make it easier for losers to accept disagreement as they will feel that “they

lose a decision, but not the world”.113

They would avoid the risk of delivering

judgment which may not accommodate changes in facts and values.114

At the

practical level, they “may be the best approach that is available for people of

limited time and capacities”, who cannot afford the resources to conduct full

theorisation.115

ITAs are well adapted to the reasoning by analogies practised

in the common law system116

and avoid judges without democratic pedigree

embarking on large-scale social reforms or high-level principles which should

best be left to the process of deliberative democracy.117

According to Sunstein, judicial minimalism, derived from

incompletely theorised agreement, was embraced by the US Supreme Court in

the 1990s, when his book One Case at a Time was published.118

His account

of the phenomenon is both descriptive and prescriptive. As a matter of

political morality, the development of high constitutional principles should be

the subject of deliberative democracy and not the function of appointed

judges.119

In terms of institutional competence, the judiciary does not possess

the same resources, available to the legislature, which are required to ascertain

and examine the complex facts and values involved in formulating broad

112

Ibid, p 39.

113 Ibid, p 41.

114 Ibid.

115 Ibid, p 42.

116 Ibid.

117 Ibid, p 45.

118 Cass R. Sunstein, One Case at A Time (Cambridge, Massachusetts; London: Harvard

University Press, 1999), pp xi – xii.

119 Cass R. Sunstein, Partial Constitution (Cambridge, Massachusetts; London: 1993, Harvard

University Press), pp 145-146.

40

principles and eventually, to implement the principles formulated.120

The

adversarial process of adjudication is also not suited for such a purpose. Hence,

instead of the deductive process (ie determine the relevant principle or theory

and apply it to the concrete facts in a particular case in order to produce the

conclusion), judges should proceed by analogical reasoning with reference to

precedents, which after all is how the common law comes about. In order to

“reduce the burden of judicial decision” and “more fundamentally, … to make

judicial errors less frequent (and above all) less damaging”, judges should say

no more than necessary to justify their decision in a case.121

To that end,

Sunstein argues that judicial decisions should be narrow and shallow.

Narrowness relates to the scope: judges should decide on the instant case only

and not other cases too, “except to the extent that one decision necessarily

bears on other cases, and unless they are pretty much forced to do so”.122

By

shallowness, Sunstein means that “(t)he concrete outcomes are backed not by

abstract theories but by unambitious reasoning on which people can converge

from diverse foundations, or with uncertainty about appropriate

foundations".123

“Like narrowness, shallowness is a matter of degree; it is

relative rather than absolute.”124

Minimalism, Sunstein explains, does not mean judicial restraint. Nor

should it be characterised as liberal or conservative. They simply “prefer to

leave fundamental issues undecided … [which is] their most distinct

characteristics”.125

Sunstein’s “basic claim is not about substance”.126

The

120

Partial Constitution (n 119 above), pp 147-148 and Legal Reasoning and Political

Conflict (n 110 above), pp 44-46.

121 One Case at A Time (n 118 above), p 4.

122 Ibid, p 10.

123 Ibid, p 13.

124 Ibid, p 16.

125 Ibid, p x.

126 Ibid, p 76.

41

word “minimalism” is used to mean “procedural minimalism [which] entails

an effort to limit the scope and ambition of judicial rulings”.127

It “should be

distinguished from … minimalism’s substance, which entails an identifiable

set of substantive commitments (to, for example, fair procedure and the rule of

law)”.128

True to his faith in incompletely theorised agreement, Sunstein does

not claim his minimalism to be applicable to all cases. Indeed, he takes pain to

qualify it. There are, as he sees it, four problems.129

First, while resource

constraint is one reason for minimalism, the cost reduction in one case may be

more than offset by the additional costs to be incurred in subsequent cases as a

result of the uncertainty created by the narrow and shallow decision. Secondly,

the decision gives little guidance to lower courts, which therefore may make

mistakes in future cases. Thirdly, one of the purposes of law is to enable

people to plan their activities with reasonable confidence that they will not be

vulnerable to legal challenge. Minimalism does not facilitate forward planning.

Fourthly, maximalism – in the form of judicial refusal to invalidate any

legislation – may well put pressure on the political branches to sort out issues

and hence, maximalism may turn out to be closer to deliberative democracy

than is minimalism.

In the light of the four problems, Sunstein describes the circumstances

in which minimalism is preferred to maximalism and vice versa:

“(I)t is worthwile to attempt a broad and deep solution (1) when judges

have considerable confidence in the merits of that solution, (2) when

the solution can reduce costly uncertainty for future courts and

litigants, (3) when advance planning is important, and (4) when a

127

“Testing Minimalism” (n 107 above), p 124.

128 Ibid.

129 One Case at A Time (n 118 above), pp 54-57.

42

maximalism approach will promote democratic goals either by

creating the preconditions for democracy or by imposing good

incentives on elected officials, incentives to which they are likely to be

responsive. Minimalism becomes more attractive (1) when judges are

proceeding in the midst of (constitutionally relevant) factual or moral

uncertainty and rapidly changing circumstances, (2) when any solution

seems likely to be confounded by future cases, (3) when the need for

advance planning does not seem insistent, and (4) when the

preconditions for democratic self-government are not at stake and

democratic goals are not likely to be promoted by a rule-bound

judgment. It follows that the case for minimalism is not separable from

an assessment of the underlying substantive controversies.”130

At the end, Sunstein “venture(s) a general hypothesis. The case for

minimalism is especially strong when the area involves a highly contentious

question now receiving sustained democratic attention. In such areas, courts

should be aware that even if they rely on their own deepest convictions, they

may make mistakes”.131

Furthermore, a maximalist judicial decision in such

areas, even if it is just and right, may have adverse consequences. “The

Court’s decision may activate opposing forces and demobilise the political

actors that it favours. It may produce an intense social backlash, in the process

of delegitimating itself as well as the goal it seeks to promote. More modestly,

it may prevent social deliberation, give and take, learning, compromise, and

moral evolution over time. A cautious course – refusal to hear cases,

invalidation on narrow grounds, democracy-spurring rulings – will not impair

this process and should improve it.”132

130

Ibid, p 57.

131 Ibid, p 59.

132 Ibid, p 59.

43

3.3 CRITIQUES OF PASSIVE VIRTUES AND

MINIMALISM

3.3.1 Implications of passive virtues for judicial decision-

making

Critiques of the passive virtues abound in the literature. I have sampled

three commentators because they, while all praising Bickel for the

comprehensiveness and originality of his theory, hold conflicting views on the

morality of the passive virtues as a theory on judicial decision-making. Gerald

Gunther faults him for advocating judicial restraint. Purcell sees ambivalence

in The Least Dangerous Branch. Bork regards Bickel’s theory to be one of

judicial activism.

Referring to Bickel’s advice about tempering principle with

expediency, Gunther jibes it as “the 100% insistence on principle, 20% of the

time”133

and expresses concern that “if his beguiling prescriptions are unsound,

his subtle, effective advocacy will endorse and accelerate harmful

tendencies”.134

According to Gunther, cases involving Wechsler’s neutral

principles are few. Hence, Bickel’s admonition not to strike down legislation

except on ground of such principles would leave many “bad” laws intact.

What catches public attention is the outcome of a case. When the Court

refuses to invalidate a piece of legislation, “the Court can” – Gunther quotes

Bickel – “generate consent and may impart permanence”135

despite any

deprecatory comments in the judgment. Bickel’s account of “passive virtues” 133

Gerald Gunther, “The Subtle Vices of the ‘Passive Virtues’ – A Comment on Principle and

Expediency in Judicial Review ” (1964) 64 Columbia Law Review 1, p 3.

134 Ibid, p 1.

135 Ibid, p 6 quoting from Bickel (n 64 above), p 129.

44

is “essentially unpersuasive, profoundly disturbing, and ultimately subversive

of the very values it professes to serve”.136

Bickel’s analyses of the avoidance

techniques adopted in various cases discussed in his book could have been

influenced by his own preconceptions. The Court’s discretion “to do

nothing” – which Bickel purportedly derives from Brandeis’s statement in

Ashwander v TVA – is actually much wider than intended by Brandeis.137

Some of the Court’s decisions interpreted by Bickel to be avoidance can,

Gunther opines, actually be explained by legal principles. In ascribing

“prudential considerations” to such decisions, Bickel has gone overboard into

preaching, inadvertently, legal expediency, contrary to the principled

adjudication he is advocating for constitutional review. The most disturbing

consequence is that “his fear of legitimation drives him to counsel avoidance

although principles are ripe and available”.138

In an article reviewing Bickel’s major works in his twenty-five years’

career, Purcell sees internal tensions in Bickel’s mind.139

In The Least

Dangerous Branch, Bickel says that neutral principles are but few (implying

judicial restraint) but when they are ripe, the court should uphold them

vigorously (implying judicial activism). “In other words, a theory originally

intended to distinguish those issues on which the Court could properly

invalidate the acts of representative political institutions came to rest in large

part on the question of the practical wisdom of so acting.”140

Bickel’s

explanation of the “passive virtues”, Purcell continues, creates three problems.

“The first related to the fact that they were often ‘passive’ only in name, for

Bickel’s ‘virtues’ served as aggressive instruments for his chosen values. …

136

Ibid, p 9.

137 Ibid, pp 9-10.

138 Ibid, p, 22.

139 Edward A. Purcell, Jr “Alexander M. Bickel and the Post-realist Constitution” (1976) 11

Harvard Civil Rights – Civil Liberties Law Review 521, p 522.

140 Ibid, p 540.

45

The second problem, the opposite of the first, was that the ‘passive virtues’

could occasionally be so amoral as to allow the abandonment of principle, and

of Bickel’s own values, in the service of a judgment of expedience.”141

Thirdly, the first two problems give rise to a series of paradoxes: between

“immutable” ethical principles and instrumentalist ethical relativism; between

judicial restraint and moral activism; between principled government and

expedience; and between limiting judicial decision and purposeful judicial

discretion.142

Bork, an originalist in constitutional interpretation, sees an entirely

different possible effect which Bickel’s advocacy may have on judicial

behaviour. He blames him for assigning to the Court a policymaking role,

though one to “be modest and played with caution”.143

Bickel regards the

Court to be particularly suited to inject into the policymaking process

“fundamental presuppositions” and “enduring values” which are not given due

weight by the political branches. Bork, however, opines that “(f)ew [judges]

have the training to do what Bickel asked, and none have the leisure for

philosophic reflection or for immersion in tradition, history, and the thought

and vision of philosophers and poets”.144

“There seems to be no reason why

citizens rather than Justices should not extract fundamental presuppositions

from their deepest selves.”145

Bork accepts that policymaking requires striking

a balance between principles and expediency. “There is no objectively correct

balance between principle and expediency, so it is meaningless to say that

legislatures inherently fall short of the right balance.”146

While Bickel

141

Ibid, p 541-542.

142 Ibid, p 542.

143 Robert H. Bork, The Tempting of America: The Political Seduction of the Law (New York:

Touchstone Book, 1991), p 189.

144 Ibid, p 191.

145 Ibid.

146 Ibid.

46

advocates that the “Court should declare as law only such principles as will –

in time, but in a rather immediate foreseeable future – gain general assent”,147

Bork queries the rationale for the Court to “get ahead of the evolution” of the

people’s tradition.148

The Court is likely to be wrong in identifying what are

the evolving traditions, not to mention that it will probably not so confine

itself. When the Court does go wrong, it may take decades for its decisions to

be overturned.149

The Least Dangerous Dragon, Bork remarks, “was merely

an early and provocative attempt to justify a Court that invalidates the acts of

elected representatives without appealing to the historic Constitution” and

Bickel later in his career “came to doubt the capacity of the Supreme Court to

manage principles of the sort his early work envisioned”.150

He concludes that

at the end Bickel “could not clear the hurdle he set himself: accommodating a

value-choosing Court to the theory and practice of democracy”.151

3.3.2 Reconciliation of conflicting critiques of passive virtues

The above comments, put together, may suggest Bickel to be wavering

in his intellectual works. Rejecting the possible impression that Bickel is

inconsistent or even incoherent in his political philosophy, Kronman asserts

that a theme which runs from The Least Dangerous Branch to The Morality of

Consent, the last work in Bickel’s short life, is prudence.152

Prudence is the

intellectual and temperamental ability to recognise the complexities of judicial

and institutional setting and to steer through such complexities to achieve

one’s goal.153

Bickel holds that constitutional adjudication must be principled

147

The Least Dangerous Branch (n 64 above), p 239.

148 Bork (n 143 above), p 192.

149 Ibid, p 193.

150 Ibid.

151 Ibid.

152 Anthony T. Kronman, “Alexander Bickel’s Philosophy of Prudence” (1985) 94 Yale Law

Journal 1567, p 1568.

153 Ibid, pp 1569-1570.

47

but principle must be tempered with expediency. He does not clearly delineate

the line of demarcation between principle and expediency except to suggest

that while principle represents a society’s permanent interests, expediency

denotes the immediate ones.

Burt, like Kronman, believes that “(t)he internal, logical coherence of

[Bickel’s] ideas has not changed”.154

What has changed is “the underlying

conception of the very nature of judicial authority”155

which in turn reflects

the moods and sentiments of different generations as to how to address social

conflicts. Bickel, being a Jew emigrating from Romania to America in 1939

when fourteen years old and having lived through the Great Depression and

Second World War, was fearful about the apocalyptic effect of social conflicts.

Hence, he advocates accommodation on the part of the judiciary, rather than

relying on principles which could aggravate the conflict. For Burt’s own

generation – he was Bickel’s student in the mid-1960s – the social disruptions

in the 1960’s gave rise to distrust in the accommodationist approach. Instead,

the people looked to the court as the Hobbesian absolute sovereignty to

impose “definitive, authoritative conclusions at even the earliest stages of

ideological disputes”.156

In comparison, the generation of Burt’s students “is

more inclined to view apparently irreconcilable social conflict as an

essentially irremediable, and even an unremarkable, state of affairs”.157

It is true that, as Burt implies, the perception of an object depends on

the object as well as the perceiver’s propensity. A wide variation in perception

suggests, however, that the object itself is unclear, like a Rorschach card.

What are principles? What is the level of specificity of the “fundamental

154

Robert A. Burt, “Alex Bickel’s Law School and Ours” (1995) 104 Yale Law Journal 1853,

p 1856.

155 Ibid.

156 Ibid, p 1868.

157 Ibid, p 1869.

48

presuppositions” which amount to “principles” to be enforced by the court?

Which is the point beyond which a “principle” “will – in time, but in a rather

immediate foreseeable future – gain consent”158

and therefore, is ripe for

adjudication? Bickel addresses these questions mostly in abstract terms. His

subtlety and poetic style of writing add to the difficulty in pinning him down.

While Burt’s description of the change in paradigmatic exercise of judicial

authority from one generation to another may explain certain conflicting

commentaries on the “passive virtues”, the internal tension in Bickel’s mind

as described by Purcell – and of course, also the commentators’ own

ideologies – are probably more significant reasons why for example, Gunther

and Bork charge him for judicial restraint and judicial activism respectively.

Whatever the defects of the passive virtues, the one contribution which

Bickel definitely makes is the highlighting of the court’s educational function.

Even in a case in which the court decides to “do neither”, its judgment may

reveal principles which have not been considered or given sufficient attention

by the political branches. The media coverage of a high-profile case, which a

constitutional case usually is, would trigger public discussions. Coming from

politically impartial and authoritative figures, the court’s views would

command respect in the community such that the elected politicians would

have to give them very serious consideration. Policy or legislative changes for

better governance may result. Even if not, the public deliberation would

clarify or crystallise certain values, facilitating the development of

overlapping consensus in a pluralistic society.

158

The Least Dangerous Branch (n 64 above), p 239.

49

3.3.3 Critiques of Sunstein’s theory

3.3.3.1 Critique of “incompletely theorised agreement”

When Sunstein pitches his “incompletely theorised agreement” against

Rawls’s “overlapping consensus” as an alternative strategy to harmonise the

differences in values and beliefs in a pluralistic society, 159

he appears to have

escalated the idea to a philosophical level well beyond its place, bearing in

mind that the idea is apparently intended merely as a strategy to “seek

agreement on what to do rather than exactly how to think”.160

In the legal

world, the “incompletely theorised agreement” is inevitable for the courts to

dispose of the many minor, factually similar cases before them. We should not

forget, however, that it is merely a strategy of expedience. As Alexander

points out:

“We do not need theory for what we agree about but for what we

disagree about; and, indeed, it is to resolve disagreement

authoritatively that we have law and legal institutions. If law and legal

decisions are to be justified to those who disagree and who lose, it

must be through theory. Because real agreement cannot be coerced,

law without theory appears to the losers as brute force, not reason.”161

3.3.3.2 Critiques of minimalism

Sunstein intends minimalism to be both descriptive and prescriptive.

Based on an empirical analysis, Neil S. Siegel concludes that Sunstein’s

159

Legal Reasoning and Political Conflict (n 110 above), p 48.

160 Ibid.

161 Larry Alexander, “Incomplete Theorizing: A Review Essay of Case R. Sunstein’s Legal

Reasoning and Political Conflict” (1997) 72 Notre Dame Law Review 531, p 534.

50

“suggestion that judicial minimalism triumphed at the Supreme Court during

the October 2003 Term is, with few exceptions, descriptively false” and that

the judges “did not consciously choose to resolve most of the cases

discussed … as narrowly and shallowly as reasonably possible, even though

broader and deeper rationales were reasonably available to them”.162

Normatively, he opines that minimalism would not serve the supposed

substantive values of “cost minimization, democracy promotion, and

achieving overlapping consensus, thereby negotiating theoretical

disagreements”.163

In response, Sunstein clarifies that “minimalism and

maximalism should be seen as relative rather than absolute”,164

that it is

procedural (ie the court “proceeds by building cautiously on precedent”165

and

that “only … in the most difficult and controversial domains, the Court tends

to choose relatively narrow and unambitigious grounds”.166

He concedes that

“(w)hen planning is important, minimalism is hazardous”167

and agrees with

Siegel that “the argument for minimalism is strongest in an identifiable class

of cases: those in which America society is morally divided, those in which

the Court is not confident that it knows the right answer, and those in which

the citizenry is likely to profit from more sustained debate and reflection”.168

Similar internal tension in Bickel’s theory exists in Sunstein’s too.

Bickel assigns to the judges the function of proclaiming and enforcing

principles but only when the principles are ripe for adjudication. Starting from

the other end, Sunstein prevails on the court to avoid formulating principles

and make shallow and narrow decisions instead. At the same time, he imposes

162

Neil S. Siegel, “A Theory in Search of a Court, and Itself: Judicial Minimalism at the

Supreme Court Bar (2005) 103 Michigan Law Review 1951, at p 2001

163 Ibid, p 2004.

164 “Testing Minimalism” (n 107 above), p 123.

165 Ibid, p 125

166 Ibid.

167 Ibid, p 128.

168 Ibid.

51

fairly extensive limits on the areas in which minimalism is preferred to

maximalism.169

Given procedural minimalism’s characteristic of analogical

reasoning, it necessarily operates in the context of a wealth of precedents

which create “a distinctive set of underlying commitments … [that] are widely

shared and judicially enforceable”.170

Such commitments form a “shared

background, one that is along certain dimensions wide and possibly deep”.171

Indeed, one may go a step further and say that the relevant values, principles

and doctrines have become such substantive, long-lasting commitments

exactly because of their width or depth. At least, the ten core commitments

listed by Sunstein are all, relatively speaking, wide and deep.172

Minus those

areas in which minimalism would cause problems and those areas covered by

the ten core commitments, probably little normative room is left for the court

to render narrow and shallow decisions.

Another way to look at Sunstein’s advice not to decide more than

necessary to dispose of a case is that it represents what judges have been

doing not only in constitutional cases but also, in other areas of the law.

“Reasoning by analogy, following precedent, and deciding on narrow grounds

are all familiar tools of the common law judges.”173

Dworkin suggests that a

judge should go to and fro between the precedents and his judgment of justice

until he arrives at a principle which fits and justifies the past precedents and

169

See notes 129 and 130 above and accompanying texts.

170 One Case at A Time (n 118 above), p 63.

171 Ibid, p 61.

172 Ibid, pp 64-67. The ten core commitments are: “1. Protection against unauthorised

imprisonment … 2. Protection of political dissent … 3. The right to vote … 4. Religious

liberty … 5. Protection against physical invasion of property … 6. Protection against police

abuse of person or property … 7. The rule of law … 8. No torture, murder, or physical abuse

by the government … 9. Protection against slavery or subordination on the basis of race or

sex … 10. Substantive protection of the human body against government invasion.”

173 Jeff A. King, “Institutional Approaches to Judicial Constraint” (2008) 28 Oxford Journal

of Legal Studies 409, at p 429.

52

provides the ratio for the case at hand. There is no suggestion that Hercules

would search for a higher principle than necessary. Since narrowness and

shallowness are matters of degree and not absolute,174

Hercules would indeed

be making shallow and narrow decisions in constitutional as well as criminal

and civil cases.

3.4 LEGITIMACY OF JUDICIAL REVIEW

3.4.1 Introduction

While Bickel regards judicial review as “a deviant institution in the

American democracy”,175

Waldron considers the institution to be “politically

illegitimate, as far as democratic values are concerned”.176

Richard H. Fallon,

Jr regards Waldron to have made “the most profound challenge to judicial

review that has achieved prominence in the law reviews”.177

Waldron’s

argument against judicial review contrasts sharply with that of his teacher and

“favourite whipping boy”,178

Ronald Dworkin. This section will present the

views of Dworkin and Waldron respectively, to be followed by the multi-veto

theory developed by Frank B. Cross and borrowed by Fallon to argue against

Waldron. Before that, I shall deal with the concept of legitimacy.

174

One Case at A Time (n 118 above), p 16.

175 Bickel (n 64 above), p 18.

176 Jeremy Waldron, “The Core of the Case Against Judicial Review” (2006) 115 Yale Law

Journal 1346, at p 1353.

177 Richard H. Fallon, Jr, “The Core of an Uneasy Case for Judicial Review” (2008) 121

Harvard Law Review 1693, at p 1696.

178 Posner (n 65 above), p 589.

53

3.4.2 The concept of legitimacy

Fallon distinguishes three types of legitimacy – legal, sociological and

moral:179

� “Legal legitimacy and illegitimacy depend on legal norms. That

which is lawful is also legitimate – … legal decisions can

sometimes be erroneous without thereby becoming illegitimate. A

charge of illegitimacy typically implies a strong condemnation

not warranted by all legal errors.”180

� On the other hand, “(w)hen legitimacy is measured in

sociological terms, a constitutional regime, government

institution, or official decision possesses legitimacy in a strong

sense insofar as the relevant public regards it as justified,

appropriate, or otherwise deserving of support for reasons beyond

fear of sanctions or mere hope for personal reward.”181

� Then, “(w)hen the term is used in a moral sense, legitimacy is a

function of moral justifiability or respect-worthiness. Even if a

regime or decision enjoys broad support, or if a decision is legally

correct, it may be illegitimate under a moral concept if morally

unjustified.”182

.

Marbury was decided by a court which, under the Constitution, was

clearly authorised to exercise “judicial power” which “shall extend to all

cases …” (Article III, Sections 1 and 2). True, there are disputes – even to this

day – on whether a proper interpretation of the Constitution would confer on

the courts the power to strike down legislative acts. Nevertheless, during the

179

Richard H. Fallon, Jr, “Legitimacy and the Constitution” (2005) 118 Harvard Law Review

1787.

180 Ibid, p 1794.

181 Ibid, p 1795.

182 Ibid, p 1796.

54

over 200 years since Marbury, there has not been any serious attempt to

amend the Constitution in order to remove the power from the judiciary. Perry

remarks that “judicial review seems to enjoy virtually consensual support in

contemporary American society”.183

Presumably, even Waldron would not

dispute that the practice has gained legitimacy in the legal and sociological

senses, at least in the US. It would be safe to take it that when he criticises

judicial review to be “politically illegitimate”, he is using the epithet in the

moral sense.

The moral legitimacy of a regime or an institution may be founded on

either the consent of the governed or on the ultimate standard of justice.

“(P)eople who have consented to be governed by specified principles cannot

reasonably object when the government applies them.” 184

On the other hand,

“a perfectly just constitutional regime would be legitimate even without

consent”.185

Waldron’s objection to judicial review is based on the counter-

majoritarian difficulty or in other words, it lacks the people’s consent. For his

claim about the illegitimacy of judicial review to be valid, it has to be shown

that the institution, in addition to the lack of consent, produces unjust outcome

or that, at least, the institution cannot produce an outcome which is more just

than that without it.

3.4.3 General approaches to defend judicial review

Like the British concept of parliamentary sovereignty, Bickel’s

counter-majoritarian difficulty is predicated on the assumption that despite the

imperfection of modern democracy, the elected government’s decisions do

represent the people’s wills. Defenders of judicial review seek to justify the

183

Michael J. Perry, The Constitution in the Courts: Law or Politics (New York; Oxford:

Oxford University Press, 1994), p 15 and note 40 on p 211.

184 “Legitimacy and the Constitution” (n 179 above), p 1797.

185 Ibid.

55

institution by redefining democracy or popular sovereignty or, as Bickel does,

by appealing to the judges’ greater professional competence over the

legislators’ and executive’s.

An example of the latter justification is Ely’s “participation-oriented,

representation-reinforcing” theory. To him, the US Constitution protects

liberty not by listing substantive values, but by providing for a decision

process which ensures that the decision-makers will take account of the

interests of the people. Judges, “as experts on process and (more important) as

political outsiders, can sensibly claim to be better qualified and situated to

perform [the task of identifying such process] than political officials".186

Against Bickel’s monist assumption, Ackermann advances the theory

of dualist democracy, ie the elected government’s decisions as distinct from

those of the people. He holds that in “normal politics” in the United States, the

people behave as “private citizens” and do not have any considered judgment

on the central issues tackled by their elected representatives. Therefore,

“nobody represents the People in an unproblematic way”.187

It is only during

rare moments of “mobilised deliberation” or “higher law making” that the

whole or a clear majority of the people coalesce around novel principles,

which are then codified into “cogent doctrinal principles that will guide

normal politics for many years to come”.188

“Rather than threatening

democracy by frustrating the statutory demands of the political elite in

Washington, the courts serve democracy by protecting the hard-won

186

John Hart Ely, Democracy and Distrust (Cambridge, Massachusetts; London: Harvard

University Press, 1980) p 88.

187 Bruce Ackermann, We the People: Foundations (Cambridge, MA: Belknap Press, 1991), p

263.

188 Ibid, p 267.

56

principles of a mobilised citizenry against erosion by political elites who have

failed to gain broad and deep popular support of their innovations”.189

3.4.4 Ronald Dworkin’s outcome-based argument

Dworkin has not advanced any theory for judicial review.190

He sees

the question to have been settled by Marbury.191

His aim is merely to reject

the argument that judicial review is undemocratic.192

Though he has stopped

short of saying that judges can do better than legislators in promoting justice,

the claim is implicit in his belief that “(t)he United States is a more just

society than it would have been had its constitutional rights been left to the

conscience of majoritarian institutions”193

– a claim which is vehemently

contested.194

It is also implicit in his theory of constitutional interpretation,

which is original but can be regarded as complementing Bickel’s

countervailing arguments against the counter-majoritarian difficulty.

189

Ibid, p 10. See David M. Golove, “Democratic Constitutionalism: The Bickel-Ackermann

Dialectic”, Ch 4 in Kenneth D. Ward and Cecilia R. Castillo (eds), The Judiciary and

American Democracy (Albany, NY: State University of New York Press, 2005) for a dialectic

of Ackermann’s higher lawmaking against Bickel’s counter-majoritarian difficulty.

190 Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution

(Cambridge, Massachusetts: Harvard University Press, 1996), p 33.

191 Ronald Dworkin, Law’s Empire (London: Fontana Press, 3

rd Impression, 1991), pp 356

and 370.

192 Freedom’s Law (n 190 above), p 33.

193 Law’s Empire (n 191 above), p 356.

194 See, for example, Stephen P. Powers and Stanley Rothman, The Least Dangerous Branch?

Consequences of Judicial Activism (Westport, Connecticut; London: Praeger, 2002); William

Eaton, Who Killed the Constitution?: The Judges v the Law (Washington DC: Regnery

Gateway, 1988); and William J. Quirk and R. Randall Bridwell, Judicial Dictatorship (New

Brunswick; London: Transaction Publishers, 1995).

57

3.4.4.1 Three principles of democracy: participation, stake and

independence

Dworkin defends judicial review against the counter-majoritarian

difficulty by holding that democracy does not mean just majority rule. Rather,

certain conditions have to be satisfied before such rule is legitimate and counts

as genuine democracy. In articulating what those conditions are, he

distinguishes two types of collective decision: statistical collective decision (in

which “the individual members of the group do on their own … with no sense

of doing something as a group”) and communal collective decision (which

“does require individuals to assume the existence of the group as a separate

entity or phenomenon”).195

“In a genuine democracy, the people govern not

statistically but communally. They treat their nation as a collective unit of

responsibility, which means that they, as citizens, share derivative

responsibility for whatever their government, acting officially, does.”196

This

is, however, not to say that the citizens relinquish their own judgment. “In a

communal democracy, each citizen insists that … it is his independent

responsibility to decide what is required of the nation to do well, and whether

or how far it has succeeded.”197

In order to elicit and nourish collective

responsibility and individual judgment, political institutions are required

which “give individual citizens a part in the collective, a stake in it, and

independence from it”.198

The principle of participation requires that each citizen should have

equal influence over the making of political decisions. He must be allowed not

195

Ronald Dworkin, “Equality, Democracy and Constitution” (1989) 28 Alberta Law Review

324, 329. The same point is repeated in his “Constitutionalism and Democracy”, (1995) 3

European Journal of Philosophy 2, at 3 and 4.

196 “Equality, Democracy and Constitution” (n 195 above), p 337.

197 Ibid.

198 Ibid.

58

just to vote, but to voice his view before voting. That “also explains why the

political liberties, like freedom of speech and protest, are part of the idea of

democracy”.199

Democracy means government by the people for the people.

Under the principle of stake, collective actions should reflect equal concern

for the interests of all members of the community. “A political system with

equal suffrage, in which the majority distributes everything to itself with no

concern whatever for the fate of some racial or other minority, will not count

as an unjust democracy on the communal conception, but as no democracy at

all.”200

A genuine democracy should encourage citizens to exercise

independent judgment on moral and political issues and may use persuasion to

shape their convictions. A community which “adopts coercive or hidden or

indirect means to shape the convictions of its citizens”201

would be totalitarian,

rather than liberal, and monolithic tyranny, rather than integrated

democracy.202

Dworkin does not intend “the absurd claim that every constraint on

majoritarian power improves democracy”.203

He gives a few examples of

substantive rights which, flowing from the three principles, limit the

majoritarian power and promote democracy: free speech (principle of

participation), freedom of religion (the principle of independence) and

equality (principle of stake).204

Like Bickel who believes elected politicians to 199

Ibid, p 338.

200 Ibid, pp 339-340.

201 Ibid, pp 340-341.

202 Ibid, pp 336 and 340-342.

203 Ibid, p 343.

204 Ibid. Talbott makes the robust claim that the right to autonomy and to democracy entails a

long list of basic rights which he regards to be universal. It includes not just specified civil

and political rights (such a right to security and free of expression) but also, economic, social

and cultural rights (such as the right to education and to physical subsistence) and ultimately,

“an independent judiciary to enforce the entire package of rights”: William J. Talbott, Which

Rights Should Be Universal? (New York: Oxford University Press, 2005), p 163. Talbott’s

inclusion of economic, social and cultural rights, which requires the government to take

59

be more concerned about short-term expediency than about the society’s long-

term needs, Dworkin opines that where minority rights are involved, elected

legislators are more likely to side with the majority lest they may be replaced

in the next election. “For that reason legislators seem less likely to reach

sound decisions about minority rights than officials who are less vulnerable in

that way.”205

It does not follow that judges are the ideal person to decide on

such rights. “But there is no a priori reason to think them less competent

political theorists than state legislators or attorneys general.”206

3.4.4.2 Constitutional interpretation

Bickel’s countervailing arguments have it that judges are better trained

than legislators to identify the “principle”, “long-term needs” and

“fundamental presuppositions” which are necessary for good governance.

Similar claim is implicit in Dworkin’s theory on constitutional interpretation.

It follows, from Dworkin’s view that Marbury already settles the

matter, that the Court is duty bound to interpret all provisions in the

Constitution. The interpretation involves a legal question, to which, under his

theory of “law as integrity”, there is one right answer, to be found by applying

the “fit and justification” test.207

“Law as integrity” treats the law as a chain

novel with each judge writing a new chapter which must be coherent with

positive steps for the material well-being of the citizens, aggravates the counter-majoritarian

difficulty to an extent not envisaged by Bickel or Dworkin. The justiciability of such positive

rights is in doubt even in jurisdictions where the judicial enforcement of the negative – ie civil

and political – rights is well established. For a discussion of the justiciability of the economic,

social and cultural rights, see Yash Ghai and Jill Cottrell (eds), Economic, Social and Cultural

Rights in Practice: the Role of Judges in Implementing Economic, Social and Cultural Rights

(London: Interight, 2004).

205 Law’s Empire (n 191 above), p 375.

206 Ibid.

207 Ibid, Ch 7.

60

what have been written before.208

When applying the “fit and justification”

test, a judge should first study the precedents with a view to drawing up a

shortlist of principles which may decide – and justify – the case in point. The

search is for a principle which fits past decisions and justifies them in terms of

fairness (“a matter of finding political procedures – methods of electing

officials and making their decisions responsive to the electorate – that

distribute political power in the right way”),209

justice (“distribute material

resources and protect civil liberties so as to secure a morally defensible

outcome”)210

and procedural due process (“ a matter of the right procedures

for judging whether some citizen has violated laws laid down by the political

procedures”)211

. The judge “follows law as integrity and therefore wants an

interpretation of what judges did in the earlier … cases that shows them acting

in the way he approves, not in the way he thinks judges must decline to

act”.212

That may rule out some principles in the shortlist which, if adopted,

would show those judges to be acting in a way disapproved by him. The next

stage is to rule out, from the remaining principles, those which are

“incompatible with the bulk of legal practice more generally” or in other

words, could not “form part of a coherent theory justifying the network as a

whole”.213

If no justifying principle to resolve the case in point is available in

a department of law (eg law of contract), the judge must extend his search

into another department (eg law of tort). The process may be compared to

John Rawls’s “reflective equilibrium”, whereby a person in search of a

principle of justice draws up a tentative principle; examines its implications to

see if it conforms to his judgment of justice; adjusts the principle or his

judgment to remove any discrepancy; and repeats the comparison and

208

Ibid, pp 228-232.

209 Ibid, p 164.

210 Ibid, p 165.

211 Ibid.

212 Ibid, p 244.

213 Ibid, p 245.

61

adjustment until he arrives at a principle which conforms to his adjusted

judgment.214

A judge’s view on whether a particular principle fits and justifies past

decisions is a function of his convictions, which are partly the result of his

experience. He must treat any convictions as regards general principles or

rules of thumb as provisional and be prepared to modify or even abandon

them in the light of fresh analysis of the decided cases. “Very hard cases will

force him to develop his conception of law and his political morality together

in a mutually supporting way.”215

In other words, he will have to adjust either

his convictions or his analyses of the past cases until he arrives at a principle

which, according to his conviction, both fits and justifies the past decisions

and also, resolves the case in point.

When it comes to constitutional interpretation, Dworkin believes that

the Constitution expresses principles and “principles cannot be seen as

stopping where some historical statesman’s time, imagination, and interest

stopped”.216

According to “passivism”, such as that voiced by Judge Learned

Hand, judges should defer to the interpretations adopted by the elected

branches. Dworkin sees it as founded on the Archimedian skepticism that

there is no objectively right or wrong answer to any moral question – in the

absence of an objectively right or wrong answer, the majority decision should

count. The reasoning, Dworkin says, is self-defeating. If there can be no moral

right or wrong, then there can be no right answer to the question as to whose

opinions should rule us.217

214

John Rawls, A Theory of Justice (Oxford: Clarendon Press, 1972), pp 17-18 and 42-45.

215 Law’s Empire (n 191 above) p 258.

216 Ibid, p 369.

217 Ibid, p 373.

62

Dworkin believes that judges – and for that matter, also lawyers and

citizens – should adopt a moral reading of the Constitution. As the first step to

prepare for the application of the “fit and justification” test to constitutional

interpretation, he identifies, from the bill of rights in the Constitution, “the

following political and legal ideals: government must treat all those subject to

its dominion as having equal moral and political status; it must attempt, in

good faith, to treat them all with equal concern; and it must respect whatever

individual freedoms are indispensable to those ends, including but not limited

to the freedoms more specifically designated in the document, such as the

freedoms of speech and religion”.218

Constitutional interpretation, therefore, is to find, through the “fit and

justification” reiteration, the right answer which gives effect to the ideals

embodied in the Constitution. In a hard case, ie one which cannot be disposed

of by any settled rule, the task involved is difficult, if humanly possible.

Dworkin admits it by giving the name Hercules to the hypothetical judge

capable of the work. The Herculean task is, no doubt, comparable to that

assigned by Bickel – “to immerse themselves in the tradition of our society …

to extract ‘fundamental presuppositions’ from their deepest selves, but in fact

from the evolving morality of our tradition”.219

To the possible accusation that the task amounts to judicial legislation,

Dworkin’s reply is that a judge acts according to the adjudicative principle of

integrity, "which commands him to see, so far as possible, the law as a

coherent and structured whole". 220

The principle of stare decisis is part of this

structure. It requires a judge to follow past decisions made by higher courts

even when he disagrees. Legislative supremacy is another constraint. If a

218

Ronald Dworkin, “Introduction: The Moral Reading and the Majoritarian Premise” in

Freedom’s Law (Cambridge, Massachusetts: Harvard University Press, 1996), pp 1-38, at 7-8.

219 See n 95 above and accompanying text.

220 Law’s Empire (n 191 above), p 400.

63

judge sees an interpretation as the only possible one of a statute, he must

enforce it as law, regardless of his own value, unless the statute is in an area

where constitutional limitation applies.221

In deciding whether any statute

should be struck down on ground of constitutional limitation, while Bickel

advocates the exercise of the passive virtue until the principle involved is ripe

for adjudication, Dworkin holds that a judge should guard against judicial

activism:

“He will refuse to substitute his judgment for that of the legislature

when he believes the issue in play is primarily one of policy rather

than principle, when the argument is about the best strategies for

achieving the overall collective interest through goals like prosperity

or the eradication of poverty or the right balance between economy

and conservation.”222

3.4.5 Jeremy Waldron’s process-based argument

3.4.5.1 Against entrenchment of substantive rights

Waldron, a positivist, is against the entrenchment of rights in a written

constitution. His reasons, in brief, are that first, a moral right does not

necessarily warrant or permit legal protection; secondly, the entrenchment of a

right would deprive posterity of the opportunity to participate in debate and

decision as to which moral right should be legally protected and how; thirdly,

221

Ibid, p 401.

222 Ibid, p 398. The distinction between “policy” and “principle” is this. “Arguments of policy

justify a political decision by showing that the decision advances or protects some collective

goal of the community as a whole. … Arguments of principle justify a political decision by

showing that the decision respects or secures some individual or group right.”: Ronald

Dworkin, Taking Rights Seriously (Cambridge, Massachusetts: Harvard University Press,

1977), p 82.

64

it is against the people’s democratic rights for decisions on the conception and

revision of basic rights to be shifted from the elected legislators to the

appointed judges.223

To say that P has a legal right to X may mean either of two legal

situations: (a) “X is P’s and she may peremptorily demand it and the law is

such that her demand must be met unless there are extraordinary

circumstances”; or (b) “some official has been vested with discretion to

determine on a case by case basis how best to distribute a limited stock of

resources like X to applicants like P”.224

To Waldron, a moral claim that P has

a right to something means merely that it is important to him. Apparently with

the economic and social rights in mind – as he uses the example of right to

shelter – he believes that not all moral rights are so important that they have to

be assigned through legal or bureaucratic procedure.225

Even assuming that a moral right always warrants legal protection, it

does not follow that it must be made a constitutional right. From the practical

point of view, the creation of a constitutional right may require the

overcoming of hurdles not faced by the enactment of an ordinary statute. A

problem with guaranteeing the right in a constitution is that it has to be

phrased in general terms, thus providing a hook for rights advocates to hang

all sorts of claims. Most important of all, entrenching a right makes it difficult

to change and disables “the legislature from its normal functions of revision,

reform and innovation in the law”.226

There will be reasonable disagreements

as to which interests should be regarded as rights and how to strike the right

balance between the individual’s interests and countervailing social

223

Jeremy Waldron, “A Right-based Critique of Constitutional Rights”, (1993) 13 Oxford

Journal of Legal Studies 18, at 19-20.

224 Ibid, p 24.

225 Ibid, p 25.

226 Ibid, p 27.

65

considerations. A philosopher should keep an open mind and if necessary,

abandon his past conviction in the light of counter-arguments in the future.227

Given the inevitability of reasonable disagreements, there is a need “to

complement our theory of rights with a theory of authority, not to replace the

former with the latter. … It is no good saying, for example, that … the person

who prevails is the person who offers the best conception of rights.”228

In

assigning the authority to adjudicate among such reasonable disagreements,

one has to accept that “there will sometimes be a dissonance between what

one takes to be the just choice and what one takes to be the authoritative

choice in political decision-making”.229

A philosopher’s thought is not different from that of a citizen

participating in politics. “Political philosophy is simply conscientious civic

discussion without a deadline.”230

“The modern theory of democracy

represents individuals … as having the capacity to engage in thought and

principled dialogue about the conditions under which everyone’s interest may

be served.”231

In a claim which appears to converge with Dworkin’s about

what democracy entails, Waldron says that “(m)any of the values we affirm in

our opinions about democratic procedures are also values which inform our

views about substantive outcomes. For example, if we favour democratic

participation on grounds of respect for individual autonomy – recognizing an

element of self-authorship in one’s participation in collective self-

governance – we may well find it the basis of many substantive outcome

evaluations also”.232

He disagrees, though, with Dworkin’s argument that the

227

Ibid, pp 30-31.

228 Ibid, p 32.

229 Ibid, p 33.

230 Ibid, p 35.

231 Ibid, p 38.

232 Ibid, p 40. Compare with Dworkin’s three principles (of participation, stake and

independence) in section 3.4.4.1 above and also, Talbott (n 204 above).

66

outcome is the ultimate consideration in assessing a particular political

process. People have the right to participate in political decision-making

because “there is a certain dignity in participation, and an element of insult

and dishonour in exclusion, that transcends issues of outcome”.233

So, a bill of

right does not have to entrench substantive rights. Rather, it can specify the

procedures for amendment and “give a politically empowered people the

chance to think afresh about their understanding of individual rights”.234

3.4.5.2 Against judicial review

Waldron seeks to defeat various arguments put up by the defenders of

judicial review against the counter-majoitarian difficulty. On the argument

that judicial review is inevitable since the courts are duty bound to apply the

law, Waldron finds it “difficult to see why the ordinary people and their

representatives should be excluded from this process [of interpreting the Bill

of Rights]”.235

While it is sometimes argued that US Supreme Court judges

have democratic credentials because they are nominated by the President and

their appointments ratified by the Senate, Waldron counters that this does not

give the judges a greater mandate than the elected legislators.236

The

imperfection of the democratic process, he holds, by no means justifies

judicial review. “The imperfection of one institution, by democratic standards,

goes no way towards justifying the imperfection of another. … Even if we

agree that Parliament is not the epitome of democratic decision-making, the

question is whether allowing parliamentary decisions to be overridden by the

courts makes matters better or worse from a democratic point of view.”237

233

Waldron, ibid, p 40.

234 Ibid, p 41.

235 Ibid, p 43.

236 Ibid, pp 43-44.

237 Ibid, p 45.

67

Dworkin makes it clear that he seeks merely to show that judicial

review is not undemocratic and not to advance a positive theory for the

institution.238

Waldron insists, however, that “there is indeed a loss to

democracy when the elected legislature of a society is subjected to judicial

power”.239

He then sets out to refute several statements made by Dworkin

which can be regarded as positive arguments for judicial review.

First, with reference to Dworkin’s unsubstantiated and controversial

claim that the US society is more just as a result of the existence of judicial

review,240

Waldron counters with the injustice caused during the Lochner era

from 1885 to 1930, when some 150 pieces of legislation concerning labour

relations and conditions of work, aimed at protecting workers, were struck

down by federal and state courts.241

“The claim about justice may in the end

be impossible to verify. And even were it true, it would still involve a

problematic trade-off between justice and democratic ideals, unless the more

ambitious claim of Freedom’s Law [sic] could be sustained.”242

Secondly, Dworkin sees judicial review as improving the quality of

public debates on controversial issues. The debates which precede referendum

or legislative decisions are, in his view, “dominated by political alliances that

are formed around a single issue and use the familiar tactics of pressure

238

See notes 190 and 192 above.

239 Jeremy Waldron, Law and Disagreement (Oxford: Clarendon Press, 1999), p 287.

240 See n 193 above.

241 Law and Disagreement (n 239 above), p 288. In Lochner v New York, 198 US 45, 49 Led

937, 1905 US Lexis 1153, the US Supreme Court ruled, by votes of five to four, that the

legislation which set maximum hours of work was inconsistent with the right to contract

under the due process clause of the Constitution and was not a legitimate exercise of police

power. This marked the beginning of the Lochner era.

242 Law and Disagreement (n 239 above), p 288. Dworkin makes the “more ambitious claim”

in Law’s Empire (n 191 above), p 356 and not in Freedom’s Law.

68

groups to bribe or blackmail legislators into voting as they wish”.243

In

comparison, “(w)hen an issue is seen as constitutional, however, and as one

that will ultimately be resolved by courts applying general constitutional

principles, the quality of public argument is often improved, because the

argument concentrates from the start on questions of political morality”.244

Waldron thinks it more beneficial if the public can discuss directly the policy

implications of a contested issue, without having to put their arguments in

terms of interpretation of a constitutional document. Or, even assuming that

the quality of debate can be improved by the citizens’ awareness that the issue

will be decided by the court, this is not a gain. “Civil republicans and

participatory democrats are interested in practical political deliberation,

which is not just any old debating exercise, but a form of discussion among

those who are about to participate in a binding collective decision.”245

Thirdly, Waldron understands Dworkin to be saying that so long as a

judge makes the right decision, whether the decision is made democratically

does not matter if the case is about democracy; but that, if the case is about

social justice, it does matter whether the decision is made in a democratic

manner. Waldron disagrees. “(C)oncerns about the democratic or non-

democratic character of a political procedure do not evaporate when the

procedure in question is being used to address an issue about the nature of

democracy.”246

“There is something lost, from a democratic point of view,

when an unelected and unaccountable individual or institution makes a

binding decision about what democracy requires. If it makes the right decision,

then – sure – there is something democratic to set against that loss; but that is

not the same as there being no loss in the first place. On the other hand, if an

institution which is elected and accountable makes the wrong decision about

243

Freedom’s Law (n 190 above), p 344.

244 Ibid, p 345.

245 Law and Disagreement ( n 239 above), p 291.

246 Ibid, p 293.

69

what democracy requires, then although there is a loss to democracy in the

substance of the decision, it is not silly for citizens to comfort themselves with

the thought that at least they made their own mistake about democracy rather

than having some else’s mistake foisted upon them.”247

This last statement by Waldron would no doubt be refuted by Dworkin

and that takes us to the fourth point. The Nazi government, Dworkin would

retort, was democratically elected but there is no way in which the German

Jews in the Holocaust would regard themselves as being members of the

community and be bound by the government’s decisions. In Freedom’s Law,

Dworkin says that a moral reading of the Constitution does not reach the

question of which institution to interpret the Constitution.248

“I see no

alternative but to use a result-driven rather than a procedure-driven standard

for deciding them. The best institutional structure is the one best calculated to

produce the best answers to the essentially moral question of what the

democratic conditions actually are, and to secure stable compliance with those

conditions.”249

There are disagreements, he acknowledges, as to whether or

not the best institutional structure is the one leaving the decision to the elected

legislature. He does not actually say that the court is the one calculated to

produce the best answer. Instead, since he has denied in other parts of the

book “that it is a defining goal of democracy that collective decisions always

or normally be those that a majority or plurality of citizens would favour if

fully informed and rational”,250

we should leave it to history, which has

already given the authority of interpretation to the judges. “(W)e have no

reason of principle to force our practices into some majoritarian mold.”251

247

Ibid, pp 293-294.

248 Freedom’s Law (n 190 above), p 23.

249 Ibid, p 34.

250 Ibid, p 17.

251 Ibid, p 35.

70

Waldron, somehow, has taken the result-driven standard above as

Dworkin’s argument in favour of judicial review. How can citizens use the

standard to design the best institutional structure when there are reasonable

disagreements in the community as to what are the right results? “The only

way they can do that is if they have managed already to adopt a view that can

stand in the name of them all about the results they should be aiming at. But if

they have managed that, from a baseline of disagreement, they must have been

in possession of decision-procedures that enable them to get to that result.”252

Fifthly, Waldron says the suggestion, implicit in Dworkin’s argument,

is that allowing the majority to decide on the conditions upon which majority

decisions are to be accepted amounts to making them judges in their own

cause. Waldron retorts that “almost any conceivable decision-rule will

eventually involve someone deciding in his own case, in one or maybe two

different ways.”253

Unless we envisage a literally endless chain of appeal,

someone has to make the final decision and that someone will also decide on

the acceptability of their own views.254

Finally, yet another reason – this time advanced by other jurists and

not attributed to Dworkin – in favour of judicial review is that the legislature

enacts statutes in general terms whereas the court examines the statutes to see

how they actually apply in concrete cases, thus focusing the mind on how the

individuals’ rights are affected by the statutes. Waldron sees this “mostly a

myth. By the time cases reach the high appellate levels … almost all trace of

the original flesh-and-blood right-holders has vanished, and argument such as

it is revolves around the abstract issue of the right in dispute”.255

In contrast,

252

Law and Disagreement (n 239 above), p 295.

253 Ibid, p 297.

254 Ibid.

255 Jeremy Waldron, “The Core of the Case Against Judicial Review”, (2006) 115 Yale Law

Journal 1346, at 1379-1380.

71

individual cases are in fact presented through lobbying, in hearings and in

debate during the legislative process, which may indeed be initiated by some

notorious cases. “To the extent that this is true, it seems … that legislatures

are much better positioned to mount an assessment of the significance of an

individual case in relation to a general issue of rights that affects millions and

affects them in different ways.”256

To round it off, Waldron clarifies that he is objecting to the “strong”

judicial review as practised in US and not the “weak” one, as available in the

United Kingdom under the Human Rights Act 1998, which enables the court

to issue a “declaration of incompatibility” with the European Convention of

Human Rights but not to strike it down on that ground.257

Also, the objection,

which does not take account of how judicial review has actually fared in

history, assumes four conditions which make up a free and democratic society.

First, the democratic institutions elected through universal suffrage are in

reasonably good working order. Second, the judicial institutions, also in

reasonably good working order, are set up on a non-representative basis.

Thirdly, officials as well as general members of the society are committed to

the idea of individual and minority rights. Fourthly, despite such commitment,

“persisting, substantial, and good faith disagreement” exists among members

of the society.258

The assumptions suggest that Waldron has in mind a society in which

the people have equal rights to elect their representatives into the legislature.

On any rights issues on which there are reasonable disagreements, the rights-

committed people will formulate their views having regard to minority rights.

These views will be communicated to the equally rights-committed elected

representatives who, after debates, will resolve the disagreements and translate

256

Ibid, at 1380.

257 Ibid, p 1355.

258 Ibid, p 1360.

72

into law the conception of rights thus resolved. Such a resolution, which

results from the people’s equal participation in the decision-making process,

will then be dutifully interpreted and enforced by an independent judiciary, be

it elected or appointed.

Waldron concedes that if his four assumptions fail – and I think it

would be correct to take that to mean “if any of the assumptions fails” – his

argument against judicial review does not go through. “However, it does not

follow that judicial review of legislation is defensible whenever the

assumptions fail. There may be good arguments against judicial review that

are not conditioned on assumptions like mine.”259

On the other hand, he is not

contending that judicial review of legislation is inappropriate in all

circumstances. Rather, he tries to show that the rights-based judicial review is

inappropriate in a democratic society where there are reasonable

disagreements about rights.

3.4.6 Frank B. Cross’s multiple-veto justification

In an article surveying the relevant theoretical, historical and empirical

researches, Cross concludes that the conventional claims that the judiciary is

better suited to interpret and enforce the Bill of Rights (ie the rights provisions

in the US Constitution) “rest upon certain assumptions that are demonstrably

false”.260

Such “demonstrably false” assumptions relate to the quality of

judges and the judicial process and the purportedly non-majoritarian nature of

the process.261

The truer and strong case for judicial review, Cross argues, lies

in the “multiple vetoes justification” and “motive and opportunity analysis”.262

259

Ibid, p 1402.

260 Frank B. Cross, “Institutions and Enforcement of the Bill of Rights”, (2000) 85 Cornell

Law Review 1529, p 1535.

261 Ibid, pp 1536-1576.

262 Ibid, p 1576.

73

“The logic of the multiple vetoes defence is straightforward.”263

The

more veto points a piece of legislation has to pass, the less likely that any

unconstitutional legislation will be enforced. If the Congress passes an act in

the belief that it is constitutional, the President can veto it if he believes

otherwise. The inclusion of the judiciary as another veto point provides further

guard against the possible enforcement of unconstitutional legislation.264

As regards Cross’s motive and opportunity analysis, it runs similar to

that made by Alexander Hamilton in Federalist 78, which “remains the most

popular justification of judicial review, at least outside of academia”.265

Hamilton regards the judiciary to be “the least dangerous to the political rights

of the constitution” because, unlike the legislature and the executive, it “has

no influence over the sword or the purse”; “may truly be said to have neither

FORCE nor WILL, but merely judgment; and must ultimately depend upon

the aid of the executive arm even for the efficacy of its judgment”.266

In the

same vein, Cross considers that the judiciary has no motive or political

objective to infringe constitutional rights. Nor does it have the opportunity to

do so since the court merely reacts to the cases put before it.267

When the court

declares a legislative policy to be constitutional, it “adds no harm to that

created by the legislature”.268

“The Court would only be an actual detriment if

263

Ibid, p 1577.

264 Ibid.

265 Alex Tuckness, Locke and the Legislative Point of View (Princeton and Oxford: Princeton

University Press, 2002), p 151.

266 Alexander Hamilton, Federalist 78: A View of the Constitution of the Judicial Department,

in Relation to the Tenure of Good Behaviour, 28 May 1788 reproduced in Alexander

Hamilton, James Madison and John Jay, The Federalist, edited with introduction and

historical commentary, by J. R. Pole (Indianapolis/Cambridge: Hackett Publishing Co. Inc.,

2005), pp 411-8, at p 412.

267 Cross (n 260 above), pp 1579-1585.

268 Ibid, p 1580.

74

it struck down a legislative policy that increased rights protection. Although

these episodes are not common, they do occur and represent a disadvantage to

judicial supremacy in constitutional interpretation.”269

Despite this uncommon disadvantage to judicial supremacy (ie the

court’s constitutional interpretation to bind the other branches), Cross does not

favour departmentalism (ie the court’s interpretation to bind only the parties in

the instant case and each branch to interpret and enforce the Constitution in its

own realm). “Departmentalism provides an unattractive prescription for

institutional enforcement of the Bill of Rights” because it reduces the impact

of a judicial ruling to the minimal and introduces uncertainty and instability in

constitutional law.270

The individuals’ rights are not absolute. An ideal institutional structure

is one which would enable an optimal balance to be struck in each case. There

is, however, no neutral test for optimality. As a practicable second best, Cross

argues that “the best test is the absolute level of protection for Bill of Rights

freedoms”.271

The implication of this test is that “whichever national

institution provides the greatest protection of rights prevails”.272

Thus, in an

approach Cross refers to as “one-way ratchet preference for freedoms”, the

executive and the legislature are to abide by a judicial decision that a

particular act or policy is unconstitutional. Under the one-way ratchet

preference, the President may ignore legislative commands but only when the

commands undermine individual freedoms, not when they increase freedoms.

Furthermore, the approach would not preclude the other branches from

adopting greater rights protection than the standard set by the court.273

269

Ibid, pp 1580-1581.

270 Ibid, pp 1586-1587.

271 Ibid, p 1588.

272 Ibid, p 1589.

273 Ibid, pp 1590-1592.

75

The President, Congress and Court may all make mistakes, either in

under-enforcement or over-enforcement of constitutional freedoms. The one-

way ratchet approach inclines towards over-enforcement. Cross addresses the

fear about over-enforcement by referring to the “structural political and

economic reasons that cause an inevitable bias against individual rights

protection”.274

The one-way ratchet preference for rights, he argues, “might

simply produce a lesser degree of underprotection than otherwise”.275

At the end, Cross refuses to go firmly for judicial supremacy or

departmentalism. He concludes with what appears to be a bland statement:

“We can simply adopt a structural preference for the individual freedoms of

the Bill of Rights and adopt as binding whatever interpretation offers the

greatest protection for those rights.”276

3.4.7 Richard H. Fallon Jr’s “uneasy case” for judicial review

Fallon disagrees with Waldron that only procedural-based reasons

should be considered in appraising the legitimacy of judicial review. The

outcome-based reasons are also relevant. He believes legislation may have

unforeseen implications and hence, some unexpected cases which violate

rights may come to light after enactment. At least for such cases, the judiciary

has an advantage over the legislature.277

However, he sees no need to rely on

such comparative advantage argument. Instead, he takes Cross’s point about

multiple vetoes. “If judicial review reduces the likelihood that important rights

will be infringed, then it may actually enhance, rather than undermine, a

274

Ibid, p 1593.

275 Ibid.

276 Ibid, p 1608.

277 Richard H. Fallon, Jr, “The Core of an Uneasy Case for Judicial Review” (2008) 121

Harvard Law Review 1693, p 1697 and n 45 on p 1704.

76

governmental regime’s overall political legitimacy.”278

While Cross justifies

his one-way ratchet preference for rights on the ground that it would merely

reduce the risk of under-enforcement of rights and not result in over-

enforcement, Fallon’s justification for judicial review is that morally, over-

enforcement is better than under-enforcement. Hence, “if either a court or the

legislature believes that an action would infringe individual rights, the

government should be barred from taking it”.279

While Cross sees his multiple-veto defence of judicial review to be

straightforward,280

Fallon explains his “uneasy case for judicial review” to be

based on the assumption that Waldron’s four conditions are satisfied.281

In

addition, he puts forth four other assumptions which are open to challenge.

First, he assumes that the judiciary, even if it may or may not be better than

the legislature in resolving rights issues, is “likely to have a distinctive

perspective, involving both a focus on particular facts and a sensitivity to

historical understandings of the scope of certain rights, that would heighten

their sensitivity to some actual or reasonable arguable violations that

legislatures would fail to apprehend”.282

Secondly, he assumes that

“legislative action is more likely to violate fundamental rights than is

legislative inaction”.283

The assumption, he concedes, does not apply in

respect of legislation which promotes the rights of one class of citizens

without threatening the rights of another class or which pitches rights against

each other in a zero-sum controversy.284

His third assumption is that the right

to self-government, on which Waldron founds the case against judicial review,

is not a more important moral right than the other constitutional rights, such

278

Ibid, p 1699.

279 Ibid, p 1706.

280 See n 263 above.

281 “Uneasy case for Judicial Review” (n 277 above), p 1734.

282 Ibid, p 1710.

283 Ibid.

284 Ibid, pp 1711-1712.

77

that there is no sound reason against erring on the side of overprotecting the

latter rights.285

Fourthly, he assumes that a system of judicial review can be so

designed that the likely moral cost of over-enforcement of rights is lower than

the moral cost of under-enforcement of rights in the absence of judicial

review.286

In relation to the fourth assumption, the system of judicial review

Fallon has in mind is one of judicial restraint. The three types of issues which

he considers should be non-reviewable bears much resemblance to those

under Cross’s preference for rights. First, while Cross confines his preference

to the constitutional rights,287

Fallon’s “core case extends only to the kinds of

fundamental rights characteristically protected in bills of rights and does not

necessarily apply directly to ‘ordinary’ liberty rights to freedom from

governmental regulation” (emphases added).288

His more careful wording of

the exclusion has to do with the fact that like Waldron’s “core case” against

judicial review, his “uneasy case” for the institution is to apply not just to the

United States, but to any society where certain assumptions concerning the

democratic structure, judicial independence and rights culture are satisfied.

Secondly, Fallon excludes “cases in which the legislature enacts its

interpretation of fundamental rights into law and the resulting legislation does

not threaten the fundamental rights of others” and also “structural

constitutional norms not directly safeguarding fundamental rights”.289

The

exclusion is justified since the case for judicial review, made by both Fallon

and Cross, is founded on the likely salutary effect on rights protection. The

third type of Fallon’s non-reviewable cases is where “the legislature has

striven conscientiously to determine which of two competing fundamental

285

Ibid, p 1713.

286 Ibid, pp 1713-1714.

287 Cross (n 260 above), p 1606: “The rights preference proposal’s reference to rights means

those found in the Constitution, not those discovered through some theory of natural law.”

288 “Uneasy Case for Judicial Review” (n 282 above), p 1728. .

289 Ibid, p 1729.

78

rights claims deserves to prevail”.290

In such rights conflict situation, Cross

considers “difficult tradeoffs are best made by more majoritarian

institutions”291

while Fallon’s slightly more guarded reason is that “the

legislatures are as likely as courts to decide correctly”.292

What should be the courts’ standard in determining the definition of a

fundamental right and whether to invalidate legislation? Fallon advocates a

“relatively deferential review” as “probably a more attractive option when

judicial review is predicated on the assumption that fundamental rights should

be protected by multiple veto opportunities than if courts are thought more

likely than legislatures to resolve dispute questions correctly”.293

Fallon does

not specify the degree of judicial deference advocated. The above statement,

coupled with his labelling his case for judicial review as an “uneasy” one,

leads one to suspect that he could have in mind a standard close to Thayer’s

rule of clear mistake.

To the arguments about multiple vetoes and erring on the side of rights

protection, one may add, as a further justification, Black’s point about the

legitimating function of judicial review.294

Election, as pointed out by Cross,

“is an imperfect method of protecting rights”.295

For the sake of the regime’s

legitimacy, people aggrieved by legislative excesses need an avenue for their

grievances to be heard and adjudicated upon. Eylon and Harel argue that

democratic participation includes the right to a fair hearing when one’s right is

290

Ibid, p 1730.

291 Cross (n 260 above), p 1605.

292 “Uneasy Case for Judicial Review” (n 277 above), p 1730.

293 Ibid, p 1733.

294 See n 56 above.

295 Cross (n 260 above), p 1598.

79

infringed and hence, judicial review realises rather than frustrates

democracy.296

3.4.8 Comparison of Dworkin, Waldron, Cross and Fallon

Part of the difference between Dworkin and Waldron is merely

semantic. Dworkin uses the word “democracy” to denote not just majority rule

but also, conditions pertinent to the respect and concern for the citizens.

Waldron, while using “democracy” to mean majority rule, does not dispute

that such respect and concern are values in political decision-making.

Dworkin believes the citizens’ substantive rights can be inferred from the

principles of participation, stake and independence implicit in “democracy”

but stops short of identifying the specific rights to be enshrined in the

Constitution. Waldron, though against spelling out the substantive rights in a

written constitution and thus limiting the decisions of the elected legislature,

would no doubt accept that some of the rights specified in the Constitution,

such as the rights to free speech and to equality, are prerequisites to true

democracy, except that the conceptions of such rights should be matter for the

legislature to decide.

The debate about the legitimacy or otherwise of judicial review boils

down to three questions. First, which is the more important value in a civil

society: fairness or justice? Second, in a constitutional issue, is there only one

right decision? Third, if so, who are more competent to find that one right

decision: legislators or judges?

Dworkin’s answers would be that fairness and justice are of equal

importance. There is only one right decision in a constitutional issue and that

would be the one which, under the concept of integrity in law, pass the “fit

296

Yuval Eylon and Alon Harel, “The Right to Judicial Review” (2006) 92 Virginia Law

Review 991, accessed vide www.lexis.com on 15 September 2008.

80

and justification” test in respect of fairness, justice and due process. Judges

are more competent than legislators to find that one right decision because

they decide in the context of the flesh and blood of a case and also, legislators

are prone to submit to the majority’s pressure at the expense of the minority’s

rights.

Waldron, who admits to be an emotivist, explains that his opposition to

judicial review has nothing to do with emotivism or moral realism. There are,

as he sees it, two levels in the dispute: the first-level dispute about rights and

the second-level one “about the proper way to settle political disagreements

(such as first-level disagreements about rights)”.297

Even if moral realism were

true, the realists cannot demonstrate – or propose any generally agreed method

to prove – that a judge’s opinion on the first-level question is closer to the

objectively right answer than are the other opinions expressed in the

community.298

In other words, judicial review is illegitimate because it is

unfair and does not have the countervailing benefit in terms of justice as

argued by Bickel and Dworkin. Waldron could claim, in support, Cross’s

survey of the theoretical, historical and empirical researches, which negate the

purported institutional advantages which judges have, over the legislators, in

interpreting and enforcing the Bill of Rights.299

297

Jeremy Waldron, “Moral Truth and Judicial Review” (1998) 43 American Journal of

Jurisprudence, 75-97 – accessed via www.lexis.com on 15 September 2008 – at 81.

According to Routledge Encyclopedia of Philosophy (London and New York: Routledge,

1998), “Emotivists held that moral judgments express and arouse emotions, not beliefs. …

Indeed, since it entailed that moral judgments elude assessment in terms of truth and

falsehood, it suggested that rational argument about morals might be at best inappropriate, and

at worst impossible.” (Vol 3, pp 291-2); “Moral realism is the view that there are facts of the

matter about which actions are right and which wrong and about which things are good and

which bad. … (R)ealists hold that moral facts are independent of any beliefs or thoughts we

might have about them … We cannot make actions right by arguing that they are, any more

than we can make bombs safe by agreeing that they are.” (Vol 6, p 534).

298 Waldron, ibid, pp 83-90.

299 See n 261 above and accompanying text.

81

Yet, the claim that judicial review would result in more justice in a

society does not have to depend on the judges’ relative competence. Since

judges merely exercise veto powers, Cross’s multiple-veto justification argues

convincingly that judicial review would result in over-enforcement, but not

under-enforcement, of constitutional rights. Fallon’s argument – that in a

society committed to rights, over-enforcement is morally better than under-

enforcement – is also valid. The one area where the multiple-veto argument

may not hold is that involving the trade-off between two competing

constitutional rights. That is the area where judicial deference to the

legislature would be required. This area is a comparatively small one. Most

constitutional cases involve balancing the individuals’ interests against the

collective interest.

3.4.9 Empirical evidence against counter-majoritarian

difficulty

Judicial review is alleged to be illegitimate because of the counter-

majoritarian difficulty. However, several studies, which counter the

impression of the courts acting against the will of the people or their elected

representatives, suggest that the difficulty has been exaggerated.

In a quantitative analysis of 6,408 decisions made by three-judge

panels of the US federal appeal courts on different areas of the law, Sunstein

et al analyse the 19,224 associated votes of individual judges and find that

“(i)n most of the areas investigated …, the political party of the appointing

president is a fairly good indicator of how individual judges will vote”.300

However, the judges’ votes cannot be predicted by their ideology in cases

involving criminal appeals, takings claims, challenges to punitive damages

300

Cass R. Sunstein et al, Are Judges Political : An Empirical Analysis of the Federal

Judiciary (Washington DC, 2006), p 10.

82

awards, standing to sue, and Commerce Clause challenges to congressional

enactments.301

This is not to say that the judges simply play to the tunes of their

political principals. Judges have their own political agenda, too. In a historical

study of how judicial supremacy in constitutional interpretation has resulted

from the political interplay between the US Supreme Court and US presidents,

Whittington observes that “(t)he judiciary has been able to sustain its claims to

interpretive predominance primarily because, and when, other political

actors … have determined that judicial supremacy has been in their own best

interests”.302

On the question of judicial supremacy versus democracy, he

concludes from the study that: “The Court has not taken the Constitution away

from the people. The Constitution has often been entrusted to the hands of the

judges, if not by the people themselves, then at least by their elected

representatives”.303

Whittington’s suggestion that judicial supremacy may have the

blessing of the people themselves is consistent with a study by Peretti.

Reviewing the literature on the relevant empirical researches, he remarks that

“(o)verall, the research refutes Bickel’s characterisation of the Court as a

countermajoritarian institution. While the Court does often rule against

majority opinion (about one-third of the time, according to Marshall) it more

301

Ibid, p 11.

302 Keith E. Whittington, Political Foundations of Judicial Supremacy: The Presidency, the

Supreme Court, and Constitutional Leadership in U.S. History (Princeton and Oxford:

Princeton University Press, 2007), p 27.

303 Ibid, p 293.

83

often sides with majority opinion” 304

and that “the Court reflects public

opinion in its decisions as often as the other institutions”.305

One-third is quite a substantial proportion. Why is it that the US

Supreme Court still enjoys the people’s trust and respect despite such a high

frequency of ruling against the majority opinion? The clue may be found in

Schuaer’s study. Comparing the “nation’s agenda” (as reflected in the

headline stories on US national newspapers and in public opinion polls) and

the Court’s agenda (as reflected in cases on the Supreme Court’s docket), he

finds “just how few of the public’s major issues of concern or the nation’s

first-order policy decisions come anywhere near the purview of the

judiciary”.306

An inference to draw is that the one-third or whatever

percentage of cases in which the Court goes against the public opinion relates

to subjects of low salience to the public.307

On matters of high salience,

Schauer suggests from history, the Court either avoided any counter-

majoritarian decision or “climbed on the train of … public opinion well after it

had left the station”.308

This last observation, if valid, may be regarded as

empirical evidence in support of Bickel’s views about the Court exercising the

passive virtues until a principle is ripe for adjudication.

3.4.10 Conclusion

Defending Chief Justice Marshall’s constitutional interpretation in

Marbury v Madison, Dworkin writes:

304

Terri Peretti, “An Empirical Analysis of Alexander Bickel’s The Least Dangerous Branch”,

Ch 6 in Kenneth D. Ward and Cecilia R. Castillo (eds), The Judiciary and American

Democracy (Albany: State University of New York Press, 2005), p 132.

305 Ibid, p 136.

306 Frank Schauer, “The Supreme Court 2005 Term: Foreword: The Court’s Agenda – and the

Nation’s” (2006) 120 Harvard Law Review 4, p 32.

307 Ibid, pp 56 – 57.

308 Ibid, pp 59 – 60.

84

“History has vindicated the substantive dimension of that

interpretation. The United States is a more just society than it would

have been had its constitutional rights been left to the conscience of

majoritarian institutions. … His decision was accepted, at least in that

abstract form, and subsequent constitutional practice has coagulated

firmly around it. … Even those who think he made a mistake concede

that almost two centuries of practice have put his position beyond

challenge as a proposition of law …”309

Those words can also be understood as arguments for the social, legal

and moral legitimacy of judicial review in the United States. In the same way

that the legal doctrine of sovereignty is founded ultimately on the “simple

relationship between subjects rendering habitual obedience and a sovereign

who renders habitual obedience to no one”,310

years of implementation of

judicial review by the judges and its voluntary acceptance by elected

politicians and the people (social legitimacy) since Marbutry has established

the legal legitimacy of the institution. Dworkin’s assertion of the United States

being a “more just society” with than without the institution amounts to a

consequentialist argument, based on the principle of justice, for moral

legitimacy in the face of the counter-majoritarian difficulty which is based on

the principle of fairness.

Dworkin’s arguments apply in the United States only. Ginsburg’ study

shows that when it comes to the new democracies, the design of judicial

review and the powers conferred on and actually exercised by the courts are

influenced more by political considerations than moral ones.311

The system

thus arrived at in a new democracy acquires legal legitimacy if it complies

309

Law’s Empire (n 191 above), pp 356 – 357.

310 H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 2

nd edn, 1994), p 50.

311 Note 48 above and accompanying text.

85

with the “rule of recognition”312

prevailing in the country concerned. Whether

social legitimacy will be attained is a fact depending on the reactions of all the

political actors involved – judges, officials as well as the people.

While social legitimacy and legal legitimacy are country specific,

moral legitimacy transcends national boundaries. In the mature democracies

of Canada, New Zealand and United Kingdom – where the question of judicial

review was intensely debated in the last few decades – it is hopefully not

naïve to believe that the proponents on both sides genuinely view the issue

more from the point of principle than from the point of their or their

constituents’ gains or loss and hence, the weak form eventually adopted313

culminates more from political morality consideration than from pure politics.

The three countries all appear to meet Waldron’s four assumptions as regards

the conditions of a society in which strong judicial review is morally

unjustified. The fact that they have all opted against strong judicial review

seems to support his theory.

Yet, a question of moral truth or falsity has to be settled by reason and

not number. Even if Waldron’s four assumptions are all met, Fallon argues,

the multiple-veto theory would justify judicial review because in a society

committed to rights, it would be more just to err on the side of

overenforcement than underenforcement of constitutional rights.314

However,

as Fallon also recognises, this is true only up to a point. Overenforcement, if it

goes beyond an optimum point, would amount to injustice.315

There is

312

The Concept of Law (n 310 above), Ch V: “Law as the Union of Primary and Secondary

Rules”. “(P)rimary rules are concerned with the actions that individuals must or must not do”

(p 94). A “rule of recognition” is a secondary rule which “will specify some feature or

features possession of which by a suggested [primary] rule is taken as a conclusive affirmative

indication that it is a rule of the group to be supported by the social pressure it exerts” (p 94).

313 See section 2.2.

314 Fallon, “The Core of an Uneasy Case for Judicial Review” (n 277 above).

315 Ibid, p 1708.

86

uncertainty as to where precisely that point is. US history has shown that in

the people’s opinion, the optimum point was exceeded time and again.316

Hence, Fallon’s theory does not fully counter the main tenet in Waldron’s core

case, ie judicial review is clearly detrimental to fairness without producing

any compensating benefit by way of demonstrable enhancement in justice.

It may be argued, in reply to Waldron, that fairness is preserved

because if judicial review in a particular case does result in injustice, it can be

remedied through amending the constitution or other relevant document. Such

amendment, however, usually requires a supermajority. Apart from the

practical question of the resources required for any amendment exercise, the

requirement of supermajority itself is unfair because it enables the minority to

frustrate the wish of the majority. The requirement can be justified, on ground

of prudence, when the purpose of the exercise is to change the status quo. In

an amendment to over-ride the result of judicial review, the purpose and effect

are to restore the status quo by reviving the invalidated legislation.

The discussion in the last two paragraphs supports Yap’s claim that

among the different types of judicial review in the common law jurisdictions,

the “notwithstanding” system in Canada appears to strike the best balance

between fairness and justice.317

It leaves the ultimate decisions on rights

conceptions in the hands of the elected representatives without incurring the

unfairness from the supermajority requirement. By requiring the elected

representatives to revisit the issue every five years if it wishes to continue

disabling the judiciary’s decision, this strongest type of weak judicial review

enables the people to continue to participate in deciding on the relevant

constitutional issue until any reasonable disagreements in the community are

settled.

316

See n 194 above.

317 Yap, “Rethinking Constitutional Review” (n 34 above), p 100.

87

From the political morality’s point of view, the Canadian system

should be the one to opt for by a society which meets Waldron’s four

assumptions and in which a strong judicial review does not already exist. This

is, however, not to say that the strong judicial reviews being practised in the

United States and other mature democracies are illegitimate. Yap appears to

suggest that in a society where a form of judicial review is already in place,

any imbalance between fairness and justice can be minimised, if not

completely remedied, by the judges exercising self discipline – the stronger

the type of judicial review, the greater restraint should be exercised by the

judges themselves.318

As abstract theories in political morality, Waldron’s fairness argument

has an edge – but only a very slight one – over the justice argument in

Fallon’s multiple-veto theory. The edge will disappear if judicial decisions can

be demonstrated to be just. It is accepted that justice cannot be demonstrated

by number. However, in real life, the fact that a decision is made by some of

the best brains in the society acting impartially and aligns with the majority’s

view in the society must be the closest humans can get to the metaphysical

justice. Hence, the empirical evidence in the United States – which suggests

that judicial decisions align with public opinions or the political inclination of

the politicians who appoint the judges concerned – 319

provides support for

Dworkin’s claim that judicial review has led to greater justice. If so, the

institution is morally legitimate – or at least, is not morally illegitimate – there.

Similar reasoning applies to any other mature democracies where a strong

judicial review already exists and enjoys social legitimacy.

Waldron qualifies his theory by saying that even if any of the four

assumptions is not met, strong judicial review is not necessarily justified. In

fact, if his first assumption is not met – that is, a democratic decision-making

318

Yap, “Rethinking Constitutional Review” (n 34 above).

319 See section 3.4.9.

88

system does not exist in form or in substance – the principle of fairness would

justify judicial intervention for the sake of abating unfairness, eg protecting

the freedom of expression such that all members of the community can at least

have an equal opportunity to make their views known to the decision-makers

who either are not democratically elected or do not act democratically. On the

other hand, if the third assumption is not met – ie there is no rights

commitment on the part of the officials and most members of the

community – it is likely that the minority’s rights will not be adequately

protected. In the interests of justice, judicial review is necessary to safeguard

against the tyranny of the majority. In a society where both the first and third

assumptions are not met, judicial review is strongly justified from the moral

point of view but then, in real politics, there is probably little or nothing the

judiciary can do to remedy the injustice and unfairness done by the

undemocratic legislature and executive.

To complete the picture, if Waldron’s second assumption is not met –

that is, the rule of law or an independent judiciary does not exist – there is no

point talking about judicial review at all. A judicial decision disliked by the

politicians will simply be ignored. Worse still, if the judges are not

independent, they may be a main source of injustice. Finally, if there is any

modern society at all in which the third assumption (the existence of

reasonable disagreements about the conceptions of right) is not met, judicial

review will be superfluous because no one will challenge, in court, the

constitutionality of any legislative act. In such an unreal society, all legislative

acts would reflect the community’s (including the judges) consensus. No one

should be aggrieved by it. If anyone agrees with it at heart but contemplates

legal action out of self interests, he or so she will be deterred by the expected

certainty that the case will be thrown out by the court.

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CHAPTER 4 –

LEGAL FOUNDATION

OF JUDICIAL REVIEW

4.1 SINGAPORE

4.1.1 Constitutional provisions

The Constitution of Singapore does not expressly empower the courts

to conduct constitutional review of legislation. Though the US case of

Marbury v Madison has probably never been cited in any judgment,320

the

judiciary apparently infers such power, as in that case, from Article 4 of the

Constitution, which provides for the supremacy of the Constitution and any

legislation inconsistent with the Constitution to be void321

and from Article 93,

which vests judicial power in the Supreme Court and the subordinate courts.

The foundation is weak. From 1965 to 1979, the Constitution could be

amended, like an ordinary statute, by a simple majority in Parliament. Article

5(2) was amended in 1979 to change the procedure such that, at present, a

constitutional amendment bill has to be passed by two-thirds of the Members

of Parliament. Since the People’s Action Party has been dominating the

Parliament since Singapore’s independence, the two-thirds majority can easily

be obtained. Amendments have been so frequent as to lead two commentators

to the view that legislative supremacy rather than constitutional supremacy is

320

A Lexis search for the word “Marbury” in Singapore Law Reports conducted on 4 June

2009 led to a nil result.

321 This is more explicit than Article VI (2) of the US Constitution. In Marbury v Madison,

Chief Justice Marshall interprets the phrase “This Constitution, and the Laws of United States

which shall be made in Pursuance thereof” to mean that any legislation inconsistent with the

Constitution to be void - 5 U.S. (1 Cranch) 137, (1803), at 180.

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being practised.322

One of the amendments was specifically to restrict the

court’s power to conduct judicial review.

4.1.2 Restriction of judicial review

Section 8(1) of the Internal Security Act (Cap 143) requires the

Minister of Home Affairs to detain a person, without trial, if the President is

satisfied that it is necessary to do so “with a view to preventing that person

from acting in any manner prejudicial to the security of Singapore … or to the

maintenance of public order or essential services”. In Lee Mau Seng v

Minister of Home Affairs,323

it was held that a subjective test applied and the

grounds upon which the President was so satisfied was not subject to judicial

review. The issue reached the Court of Appeal again in 1988, in Chng Suan

Tze v Minister of Home Affairs, after several persons, detained for allegedly

being involved in a Marxist conspiracy aimed at establishing a Marxist state,

appealed against the High Court’s decision not to grant them habeus corpus.324

The appeals could have been allowed on the narrow, technical ground that

there had not been sufficient admissible evidence of the President’s

satisfaction in those cases.325

Nevertheless, the CA went on to reconsider the

decision in Lee Mau Seng. After reviewing the jurisprudence in UK (the

Judicial Committee of the Privy Council being the final appellant court for

Singapore at that time) and some Commonwealth countries (including

Malaysia where the subjective test originated), the CA held that, having regard

to the court’s judicial power under article 93 of the Constitution to administer

322

See Jaclyn Ling-Chien Neo and Yvonne C.L. Lee, “Constitutional Supremacy: Still a Little

Dicey”, Ch 5 in Li-ann Thio and Kevin Y.L. Tan (eds), Evolution of A Revolution: Forty

Years of the Singapore Constitution (Milton Park, Abingdon; New York, N.Y.: Routledge-

Cavendish, 2009), pp 155 and 162-173. At pp 188-192 is an Appendix listing the

constitutional amendments from 1965 to 2008.

323 [1971] 2 MLJ 137.

324 Chng Suan Tze v Minister of Home Affairs & Others and other appeals [1988] 1 SLR 132.

325 Ibid, 146.

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the rule of law and the citizens’ right under article 12(1) to equal protection of

the law against the exercise of arbitrary powers by the government, the

subjective test in Lee Mau Seng could no longer be supported. Instead, the

President’s satisfaction under section 8(1) was reviewable by the court. The

review, however, should be confined to the question whether objective facts

which fell within section 8(1) did exist. “Those responsible for national

security are the sole judges of what action is necessary in the interests of

national security, but that does not preclude the judicial function of

determining whether the decision was in fact based on grounds of national

security.”326

The CA concluded that “the judicial process is unsuitable for

reaching decisions on national security … [and] the scope of review of the

exercise of discretion under ss. 8 and 10 of the ISA is limited to the normal

judicial review principles of ‘illegality, irrationality or procedural impropriety’

(the GCHQ case)”.327

If such avowed deference to the legislature and other repeated

assurances in the judgment were meant to assuage the possible concern of the

government about unjustified judicial interference, they failed. The

government’s response was swift and peremptory. The CA’s judgment was

handed down on 8 December 1988. On 25 January 1989, the government

introduced into the Parliament the Constitution of Singapore (Amendment)

Bill and the Internal Security (Amendment) Bill. The combined effects of the

constitutional and legislative amendments, eventually enacted, were that first,

the judicial power under Article 93 could not be exercised to invalidate

legislation enacted to stop or prevent acts threatening internal security;328

secondly, the subjective test in Lee Mau Seng was restored and no law in any

other Commonwealth country relating to judicial review should apply to

326

Ibid, p 157.

327 Ibid, p 163.

328 Amended Article 149(3) of Constitution.

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decisions made or acts done under the ISA;329

thirdly, judicial review of such

decisions or acts should be confined to the question of compliance with the

procedural requirement only;330

and fourthly, appeal to the Privy Council was

abolished in respect of cases involving review of acts or decisions under the

ISA, interpretation of the ISA and interpretation of Part XII of the

Constitution on “Special Powers Against Subversion and Emergency

Powers”.331

Moving the Second Reading of the two Bills, the Minister of Law said

that the constitutional amendment was necessary to avoid the judiciary having

the last word on preventive detention cases and thus, taking over the

executive’s responsibility for national security. That, of course, was an

overstatement of the effect of Chng Suan Tze. In regard to the abolition of

appeals to the Privy Council, his reason – a manifestation of the cultural

relativism advocated by Singapore in international forums – was that the

social, economic and political situations in Singapore differed from the United

Kingdom and legal questions relating to national security should be decided

by local judges familiar with the local conditions.332

329

Sections 8A and 8B(1) of Internal Security Act (Cap 143).

330 Section 8B(2) of ISA.

331 Section 8C of ISA.

332 Singapore Parliamentary Reports, 25 January 1989, columns 463-473. Available on

www.lawnet.com.sg, last accessed on 23 March 2005. The Minister’s speech also implied a

four walls approach in constitutional interpretation – see pp 14-18 in Thio Li-ann,

“Constitutional Review – Influences Beyong the Four Walls: Human Rights, Constitutional

Liberties and the Singapore Experience”, a paper presented at the LAWASIA Comparative

Constitutional Law Standing Committee, 3rd

Biennial Conference on Constitutions In An

Interdependent World: The Impact of Internationalisation on Governance in the Asia-Pacific

Region, Macau 18-20 November 1996.

94

4.1.3 Limits to constitutional amendments?

In another habeus corpus application after the amendments – Teo Soh

Lung v Minister of Home Affairs & Others,333

the applicant’s counsel argued,

among other things, that the constitutional amendment was invalid. The

Parliament’s power under Article 5 to amend the Constitution, he said, was

not unlimited. The limit had been exceeded when the Parliament sought to

restrict the scope of judicial review in ISA cases.334

Rejecting the submission,

the High Court cited the dissenting view in the Indian case Kesavananda v

State of Kerala335

that “(t)he power to amend is wide and unlimited”.336

On appeal, Teo’s counsel repeated the point about the invalidity of the

constitutional amendment.337

In addition, he argued that the restored ruling in

Lee Mau Seng, though referred to as a subjective test, did enable the court to

enquire whether the executive’s decision to issue a detention order or revoke a

suspension order was in fact based on facts falling within the scope of national

security.338

The CA decided that the facts of the case had shown the detention

order and the revocation order to have been made on ground of national

security and that Teo had not discharged the burden of proving the contrary.339

The appeal was dismissed on that ground.340

“In the circumstances, it is …

333

[1989] 1 SLR 499.

334 Teo (n 333 above), at 508 – 511.

335 AIR 1973 SC 1461.

336 Ibid, at para 1078, cited in Teo (n 333 above), at 511.

337 Teo Soh Lung v Minister of Home Affairs & Others [1990] 1 SLR 40. It is stated at 46 that

“(i)n this appeal, the issues of law and fact canvassed by Lord Alexander were substantially

those raised by Mr Lester before FA Chua J”.

338 Ibid, at 48-49.

339 Ibid, at 56.

340 It would appear that the court might have reached the same result even if the objective test

in Chng Suan Tze – and the principles of “illegality, irrationality and procedural impropriety”

stated by Lord Diplock in C. C. S.U. v Minister for Civil Service (the “GCHQ” case), [1985] 1

AC 374, at 410D-411C – were still applicable. Despite the rather flimsy evidence adduced by

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unnecessary for [the court] to consider … whether … the purported

amendments to the Constitution are invalid as violating the basic structure of

the Constitution.”341

Hence, there is yet not any final adjudication as to whether the

Parliament can limit judicial review through constitutional amendment and for

that matter, whether there is any limit to the Parliament’s amending power.

Recent scholarly views suggest that there are and should be limits to such

amending powers even when they are not expressly stated in a written

constitution; and that even in the United Kingdom where no written

constitution exists, there are limits to parliamentary sovereignty.342

4.1.4 The only striking-down case

In the last ten years or so, the most robust statement about the court’s

power to strike down legislation in order to protect constitutional rights was

made by Karthigesu JA, when he said: “It is the duty of the court to uphold

and preserve those rights, and to impugn any Act of Parliament or any course

of executive action which injures, detracts from or infringes those rights.”343

In support, he quoted Chief Justice Yong Pung How’s statement in Chan

the Minister, the court did not agree that the Minister’s decision was Wednesbury

unreasonable – see Teo Soh Lung (n 337 above), at 55-57.

341 Teo Soh Lung (n 337 above), at 57.

342 See Gary Jeffrey Jacobsohn, “An Unconstitutional Constitution? A Comparative

Perspective”, (2006) 4(3) International Journal of Constitutional Law 460; Jeffrey Jowell,

“Parliamentary Sovereignty Under the New Constitutional Hypotheses”, [2006] Public Law

562; Vincent J. Samar, “Can a Constitutional Amendment be Unconstitutional?” (2008) 33

Oklahoma City University Law Review 667; Vivek Krishnamurthy, “Colonial Cousins:

Explaining India and Canada’s Unwritten Constitutional Principles”, (2009) 34 Yale Journal

of International Law 207; Richard Albert, “Nonconstitutional Amendments”, (2009) 22

Canadian Journal of Law and Jurisprudence 5.

343 Taw Cheng Kong v Public Prosecutor [1998] 1 SLR 953, at para 14.

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Hiang Leng Colin & Others v Public Prosecutor that “(t)he court also has a

duty to declare invalid any exercise of power, legislative and executive, which

exceeds the limits of the power conferred by the Constitution, or which

contravenes any prohibition which the Constitution provides”.344

Rejecting the

prosecution’s “social contract” argument, Karthigesu JA continued:

“There is in our view no legal contract between State and citizen. It is

not an exchange of rights … Constitutional rights are enjoyed because

they are constitutional in nature. They are enjoyed as fundamental

liberties – not stick and carrot privileges. To the extent that the

constitution is supreme, those rights are inalienable.”345

Eventually, he invalidated section 37 of the Prevention of Corruption

Act (Cap 1993), which criminalised corruptive acts committed by a Singapore

citizen outside the country. The reasons were twofold. First, while the

constitutional right to equality under the law could be restricted where

necessary to achieve a valid legislative objective, there was insufficient nexus

between the objective of combating corruption and the differential treatment

based on citizenship. 346

Secondly, his reading of section 6(3) of the Republic

of Singapore Independence Act passed on 9 August 1965 to mark Singapore’s

separation from Malaysia was that the legislative power transferred to the

Parliament of Singapore did not include the power to legislate extra-

territorially.347

Both reasons were overturned on appeal. The Court of Appeal held

that to legislate extra-territorially was part of the plenary power of a sovereign

state and no empowering provision was necessary for the Parliament to

344

[1994] 3 SLR 662, at 681B-C.

345 Taw Cheng Kong (n 343 above), paras 55 and 56.

346 Ibid, paras 64 and 65.

347 Ibid, para 82.

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exercise the power.348

The CA held that the differentiation between citizens

and non-citizens for the purpose of criminality was a rational one having

regard to the Parliament’s intention to observe international comity.349

4.2 HONG KONG

4.2.1 Constitutional provisions

As far as the protection of human rights are concerned, the most

significant constitutional development in Hong Kong is the enactment of the

Hong Kong Bills of Rights Ordinance (“HKBORO”) on 8 June 1991. It

includes a Hong Kong Bill of Rights (“BOR”) which incorporates, word for

word, the core provisions of International Covenant on Civil and Political

Rights,350

except those relating to the reservations entered by the British

Government for Hong Kong.351

The Ordinance binds the government and

public authorities only.352

It repeals “(a)ll pre-existing legislation that does

348

Public Prosecutor v Taw Cheng Kong [1998] 2 SLR 410, para 42.

349 Ibid, para 70.

350 Part II of HKBORO.

351 Part III of HKBORO.

352 Section 7 of HKBORO. In Tam Hing Yee v Wu Tai Wai (1991) 1 HKPLR 261, the first

HKBORO case reaching the Court of Appeal, the CA held that the effect of section 7 was that

the HKBORO did not apply to a prohibition order issued under s 52E of the District Court

Ordinance since the dispute leading to the order was between two private citizens. For a

discussion of the case, see Johannes Chan and Yash Ghai, “A Comparative Perspective on the

Bill of Rights”, Ch 1 in Johannes Chan and Yash Ghai (eds), The Hong Kong Bill of Rights: A

Comparative Approach (Hong Kong; Singapore; Malaysia: Butterworths Asia, 1993), at pp

23 – 26. With a view to over-riding the decision in Tam v Wu such that the HKBORO would

repeal all inconsistent pre-existing legislation even when only inter-citizen disputes were

involved, the colonial Legislative Council passed a Member’s Bill – see pp 1406 – 1418 of

the Hong Kong Legislative Council Official Record of Proceedings for the meeting held on 26

June 1997 and Ordinance No 107 of 1997. The amendments were later repealed by the

HKSAR Provisional Legislative Council – see pp 18 – 20, 121 – 137, 217 – 218 and 223 of

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not admit of a construction consistent with this Ordinance … to the extent of

the inconsistency”.353

As regards future legislation, the British government

amended the Letters Patent on the same day such that “(n)o law of Hong Kong

shall be made after [that date] that restricts the rights and freedoms enjoyed in

Hong Kong in a manner which is inconsistent with that Covenant as applied in

Hong Kong”.354

R v Sin Yau Ming was the first Court of Appeal case in which several

pre-existing legislative provisions were repealed on ground of inconsistency

with the HKBORO. As if to forestall any possible criticisms based on the

counter-majority difficulty, the Court stated:

“It needs to be emphasised that the only duty of this, or any other court,

considering legislation is to decide whether that legislation is or is not

Hong Kong (China) Provisional Legislative Council Record of Proceedings for the meeting

held on 25 February 1998 and Ordinance No 2 of 1998.

353 Section 3 of HKBORO. Even without the express provision, the common law principle of

“implied repeal” would have operated to repeal all pre-existing legislation to the extent of the

inconsistency: F.A.R. Bennion, Bennion on Stautory Interpretation: A Code (London:

LexisNexis, 5th edn, 2008), section 87. An exception to the principle is the maxim generalia

specialibus non derogant – that when a general provision conflicts with a specific one, the

latter would prevail: Bennion, section 88. The purpose of section 3 was, apparently, to

override the maxim. Sections 3 and 4 (which provided for pre-existing and future legislation

to be interpreted in a manner consistent with the ICCPR as applied to Hong Kong) were,

pursuant to Art 160 of the Basic Law, not adopted by the NPC Standing Committee as the law

of Hong Kong after 1 July 1997 – see Annex 2, item 7 of the NPC Standing Committee’s

decision adopted at its 24th session held on 23 February 1997. The non-adoption of the two

sections appeared to be politically motivated – the Chinese Government did not wish the

HKBORO to be seen as having a higher status than other legislation. The non-adoption has no

legal consequence in view of BL 8 and 39, the effect of which is that all laws enacted before

or after the handover must comply with the ICCPR as applied to Hong Kong.

354 Art VII (3) of Hong Kong Letters Patent, 1991.

99

inconsistent with the Hong Kong Bill. This, or any other court, does

not repeal legislation. That is done by the Hong Kong Bill itself.”355

In the same vein, in Attorney General v Lee Kwong-kut, the first case

in which the final appellate court upheld a repeal of pre-existing legislation on

ground of inconsistency with the Hong Kong Bill, the Privy Council

concluded its judgment with remarks apparently aimed at assuring the

legislature and the public:

“In order to maintain the balance between the individual and the

society as a whole, rigid and inflexible standards should not be

imposed on the legislature’s attempts to resolve the difficult and

intransigent problems with which society is faced when seeking to deal

with serious crime. It must be remembered that questions of policy

remain primarily the responsibility of the legislature. (See R v Downey

[1992] 2 SCR 10 at 36 – 37, 72 CCC (3d) 1 at 18 and Chaulk [1990] 3

SCR at SCR at 1302, 62 CCC (3d) at 222).”356

In R v Lum Wai-ming,357

the High Court repealed a legislative

provision enacted after 8 June 1991 on the ground that it was inconsistent with

the ICCPR and therefore ultra vires Art VII (3) of the Letters Patent. No

authority or reason was cited for the court’s power to strike down the

legislation. The court apparently took it as axiomatic.

As a result of the above and other similar cases, the judicial review of

legislation became firmly established as part of the laws of Hong Kong in the

six years before Hong Kong’s sovereignty reverted to China on 1 July 1997.

The legal foundation of the institution was strengthened by the Basic Law

355

(1991) 1 HKPLR 88, at 104 lines 21 – 24.

356 (1993) 3 HKPLR 72, at 100, lines 14 – 20.

357 (1992) 2 HKPLR 182.

100

which took effect after the handing over of sovereignty. Under BL 8, “the

laws previously in force in Hong Kong, … [including] the common law …,

shall be maintained except for any that contravene [the Basic Law]”. BL 160

provides that “the laws previously in force in Hong Kong shall be adopted as

laws of the Region except for those which the Standing Committee of the

National People’s Congress declares to be in contravention of this Law”. In

addition, BL 19, 81 and 87 provide for the maintenance of the previous

judicial system (except for the establishment of the Court of Final Appeal) and

for the maintenance of the principles previously applied in Hong Kong. In

HKSAR v Ma Wai Kwan, the Court of Appeal held that “the laws … in force

[on 30 June 1997] including the common law have been adopted and become

the laws of the HKSAR on 1 July 1997, [and] the judicial system together

with the principles applicable to court proceedings have continued”.358

Judicial review being part of the laws and judicial system previously in force

and there being nothing about the institution in the NPC Standing

Committee’s decision on non-adoption of laws which contravened the Basic

Law, it became part of the laws and judicial system of the HKSAR on 1 July

1997. The power applies to the regional legislation only and it is not for the

regional courts to challenge the validity of decisions made by China as the

sovereign, such as the NPC’s decisions or resolutions.359

The HKSAR judiciary’s power to conduct judicial review of

legislation can also be inferred from other provisions in the Basic Law. BL 19

provides for the judiciary’s “jurisdiction over all cases in the Region”, which

does not include “jurisdiction over acts of state such as defence and foreign

affairs”. Under art 67(4) of the Constitution of the Republic of China, the

authority to interpret the national legislation is vested in the Standing

Committee of the National People’s Congress (“NPCSC”). Through BL 158,

NPCSC authorises the regional courts “to interpret on their own, in

358

[1997] 2 HKC 315, at 344 B – C, per Chan, CJHC, as he then was.

359 Ibid, 334 F– 345H.

101

adjudicating cases, the provisions of this Law which are within the autonomy

of the Region”.360

The combined effect of BL 19 and 158 and Ma Wai Kwan

is that the courts’ power to invalidate unconstitutional legislation continues,

subject to two provisos. First, the courts may exercise such power in the

adjudication of cases only. In other words, the sort of a priori or abstract

reviews as practised in some countries, including those in Europe,361

are not

available in Hong Kong. Secondly, pursuant to BL 158(3), in regard to any

BL provisions “concerning affairs which are the responsibility of the Central

People’s Government, or concerning the relationship between the Central

authorities and the Region”, the courts shall “before making their final

judgments which are not appealable, seek an interpretation of the relevant

provisions from the Standing Committee of the National People’s Congress”.

In practice, it means that only the CFA will seek interpretation from the

Standing Committee.362

The courts’ power to interpret the Basic Law and

360

A mainland scholar opines that the NPCSC’s power to interpret the Basic Law is not an

extension of its power under art 67(4) of the Constitution but is a new system created under

the Basic Law independent of the interpretation of other laws: Hongshi Wen, “Interpretation

of Law by the Standing Committee of the National People’s Congress” in Johannes M. M.

Chan, H.L. Fu and Yash Ghai (eds), Hong Kong’s Constitutional Debate: Conflict over

Interpretation (Hong Kong: Hong Kong University Press, 2000), pp 183 – 197, at pp 192 – 5.

361 For an account of different types of judicial review of legislation, see C. Neal Tate,

“Comparative Judicial Review and Public Policy: Concepts and Overview”, Ch 1 in Donald

W. Jackson and C. Neal Tate (eds), Comparative Judicial Review and Public Policy

(Westport, Connecticut; London: 1992), pp 3 – 13.

362 Professor Yash Ghai expresses the concern that in some instances, final adjudication may

rest with the lower courts and hence the Standing Committee may render interpretation

without the benefit of the CFA’s opinion – see Yash Ghai, Hong Kong’s New Constitutional

Order (Hong Kong: Hong Kong University Press, 1999, 2nd

edn), pp 204 – 205. The concern

should have been alleviated, if not dispelled, by the CFA’s decision in Solicitor v Law Society

of Hong Kong and Secretary for Justice [2004] 1 HKLRD 214 that section 13 of the Legal

Practitioners Ordinance which purportedly provided for the finality of the Court of Appeal’s

decisions was ultra vires the Colonial Laws Validity Act 1865 and also the Basic Law. In Ng

Ka Ling & Others v Director of Immigration (n 363 below) 342D, the CFA stated, with

reference to BL 158: “Thus, there is no limitation on the power of the lower courts to interpret

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conduct judicial review was confirmed in Ng Ka Ling & Others v Director of

Immigration, 363

the first constitutional case reaching the CFA. It was also in

this very first case that the CFA drew a rebuke for the way it applied BL 158.

4.2.2 Ng Kai Ling and its aftermath

Under BL 24(3), the permanent residents of Hong Kong include

“persons of Chinese nationality born outside Hong Kong of” those Chinese

citizens who have acquired permanent residency either by birth in Hong Kong

or by having ordinarily resided in Hong Kong for a continuous period of seven

years. A considerable number of male permanent residents were married to

mainlanders and their children born and living in the mainland. The plain

literal meaning of the article is that these children, who did not have the right

of abode before 1 July 1997, have such right when the Basic Law takes effect.

To prevent a mass influx of such children overburdening the education system

and housing situation in Hong Kong, the Provisional Legislative Council – a

“new kitchen” built by the Chinese Government after the originally intended

“through train” for the legislature’s smooth transition from the colonial to the

SAR government went off the track owing to the disagreement between the

Chinese and British governments over the structure of the legislature364

–

enacted legislation to the effect that these children have the right of abode

only if they enter Hong Kong on the strength of a one-way exit permit (issued

by the relevant Chinese authorities) affixed with a certificate of entitlement

(issued by the Director of Immigration of HKSAR).365

As there was a quota of

150 a day for one-way permits, eligible children might take many years before

all the provisions of the Basic Law. The only limitation is on the jurisdiction of the Court of

Final Appeal.”

363 [1999] 1 HKLRD 315.

364 See Steve Tsang, A Modern History of Hong Kong (London; New York: I. B. Tauris, 2004)

pp 263 – 267.

365 Ng Ka Ling (n 363 above), pp 332G – 333D.

103

they could exercise their right as permanent residents. The legislation was

challenged for being inconsistent with BL 24(3). All eyes were on the CFA

when it delivered its judgment on 29 January 1999.

On the courts’ power to conduct judicial review, the CFA relied solely

on BL 19(1) (which provides for the HKSAR “to be vested with independent

judicial power, including that of final adjudication”) and BL 80 (which

provides for the courts to exercise the judicial power in the Region). The CFA

asserted:

“In exercising their judicial power conferred by the Basic Law, the

courts of the Region have a duty to enforce and interpret that law.

They undoubtedly have the jurisdiction to examine whether legislation

enacted by the legislature of the Region or acts of the executive

authorities of the Region are consistent with the Basic Law and, if

found to be inconsistent, to hold them to be invalid. The exercise of

this jurisdiction is a matter of obligation, not of discretion so that if

inconsistency is established, the courts are bound to hold that a law or

executive act is invalid at least to the extent of the inconsistency.

Although this has not been questioned, it is right that we should take

this opportunity of stating it unequivocally. In exercising this

jurisdiction, the courts perform their constitutional role under the Basic

Law of acting as a constitutional check on the executive and legislative

branches of government to ensure that they act in accordance with the

Basic Law.”366

Overruling the Court of Appeal’s opinion in Ma Wai Kwan that it was

not for the regional courts to challenge the validity of decisions made by the

central government,367

the CFA stated, in obiter, that “in appropriate cases, the

366

Ibid, p 337D – G.

367 Note 359 above.

104

courts of the Region do have jurisdiction to examine National People’s

Congress’ laws and acts which affect the Region”.368

The Court had in mind

those amendments to the Basic Law which might breach BL 159(4) because

they “contravene the established basic policies of the People’s Republic of

China regarding Hong Kong”.

A review of the legislation challenged in Ng Ka Ling required the

interpretation of two BL provisions. In addition to BL 24(3) on the children’s

right of abode, the requirement for one-way permit was to implement BL

22(4), which provides that “(f)or entry into the Hong Kong Special

Administrative Region, people from other parts of China must apply for

approval”. The latter provision appears in a chapter entitled “Relationship

between the Central Authorities and the Hong Kong Special Administrative

Region”. BL 158(3) requires that the NPC Standing Committee’s

interpretation be sought for such a provision before the CFA makes its

judgment. The CFA held the requirement for one-way permit to be

inconsistent with BL 24(3). It did so without seeking the NPC Standing

Committee’s interpretation of BL 22(4). The Court’s interpretation of BL 158

was that when more than one BL provisions had to be interpreted in a case,

the CFA had to make reference to the NPC Standing Committee only if the

predominant provision was one of those excluded under BL 158(3) from the

Court’s jurisdiction (“the excluded provisions”). As BL 24(3) but not BL 22(4)

was the predominant provision as far as the right of abode was concerned, the

CFA considered such reference to be unnecessary.369

In addition to striking

down the one-way permit requirement (which would have the effect of

abolishing the quota of 150 a day as far as such children are concerned), the

CFA also held that children born out of wedlock were also entitled to the right.

Furthermore, in another judgment – Chan Kam Nga & Others v Director of

Immigration – the CFA held that for a child born outside Hong Kong of

368

Ng Ka Ling (n 363 above), p 339E.

369 Ibid, pp 341 – 345.

105

Chinese nationals who were not permanent residents of Hong Kong, he / she

would have the right of abode when one of the parents became a permanent

resident.370

The CFA’s decisions were welcomed by scholars and the legal

profession for its pro-right stand and for asserting broad jurisdiction to

interpret the Basic Law.371

Given the relatively low human rights standard in

the mainland and as interpretation by the NPCSC’s interpretation of the Basic

Law might turn out to be legislative act not complying with the doctrines of

interpretation in the common law,372

people in Hong Kong generally feared

that interpretations by the NPC Standing Committee might erode the rule of

law as well as the rights and liberties enjoyed in Hong Kong.373

The SAR

Government, on the other hand, was concerned that the CFA’s decisions

would open the floodgate to an estimated 1,675,000 persons from the

mainland.374

The community was sharply divided: some shared the

government’s concern but others criticised the government’s figure to be an

exaggeration.

370

[1999] 1 HKLRD 304,

371 See, for example, Professor Yash Ghai’s commentary in [1999] 1 HKLRD pp 360 – 366;

the Hong Kong Bar Association’s statements dated 5 and 25 February 1999 on “Court of

Final Appeal Judgment on Right of Abode” and “The Bar’s Views on Constitutional

Jurisdiction of the Court of Final Appeal” respectively, reproduced in Chan et al (eds) (n 360

above), pp 238 – 245.

372 See Yash Ghai, Hong Kong’s New Constitutional Order (Hong Kong: Hong Kong

University Press, 2nd

edn, 1999), 201 – 218 for differences in the interpretation tradition

between the China mainland and Hong Kong.

373 See, for example, the South China Morning Post’s editorial “Two Systems” on 8 February

1999.

374 Secretary for Security’s speech in Hong Kong (China) Legislative Council Official Record

of Proceedings for meeting held on 28 April 1999, pp 7209 – 7217. For a collection of the

HKSAR Government’s assessments of the social and economic implications of the CFA’s

decisions on the right of abode, see Chan et al (eds) (n 360 above), pp 259 – 287.

106

In the Hong Kong legal system, the proper way to overcome the

population problem which the SAR Government said would arise from the

CFA’s decisions would be either to request the CFA to review its ruling in a

future case or to amend the Basic Law. The Government ruled out both

options.375

Instead, it considered that “the most reasonable, lawful, expeditious

and thorough approach to solve the problems” was to request the NPCSC’s

interpretation of BL 22(4) and 24(2)(3).376

There being no relevant provision

in the Basic Law, the Hong Kong Bar Association opined that the Chief

Executive did not have the power to refer a question of interpretation to the

NPCSC and that even assuming the CE did have such a power, any attempt to

overturn the CFA’s interpretation of BL 24, a matter within Hong Kong’s

autonomy guaranteed by the Basic Law, would be contrary to BL 2, 8, 18, 19,

375

The HKSAR Government ruled out seeking a review from the CFA because a suitable case

might not arise; when it did, it would take considerable time before the CFA could reach a

verdict; and, in case the CFA did reverse its ruling, it might be accused of yielding to political

pressure.: see Hong Kong Special Administrative Region Government’s paper entitled “Right

of Abode: The Solution” tabled at the Legislative Council House Committee meeting dated 18

May 1999 and the speech by the Secretary Justice at the same meeting. Both are reproduced

in Chan et al (eds) (n 360 above), pp 310 – 327. On the other hand, the Government

mentioned four reasons for not seeking an amendment of the Basic Law. First, the legislative

provisions invalidated by the CFA in fact reflected the legislative intent as contained in an

agreement reached in the Sino-British Joint Liaison Group in 1993 and an opinion formulated

by the Preparatory Committee in 1996 on the implementation of BL 24. Secondly, “the

exercise of power by the NPCSC to interpret the legislative intent of national laws does reflect

part of the new constitutional arrangement in the wake of the handover”. Thirdly, the

population crisis from the CFA’s decisions had to be dealt with quickly but the amendment

process would take time. Fourthly, under BL 159, an amendment required the consent of,

among other parties, two-thirds of the HKSAR’s deputies to the NPC but twenty-seven of the

thirty-six deputies had already indicated openly that they would not support amending the

Basic Law: see Speech by the Secretary for Security in the Hong Kong (China) Legislative

Council Official Record of Proceedings for sitting on 19 May 1999, pp 7906 – 7916, at pp

7909 – 7910. The speech is reproduced in Chan et al (eds) (n 360 above), pp 334 – 338

376 LegCo Record of Proceedings (n 375 above), p 7908.

107

48, 81, 158 and 159.377

In the event, despite the strong sentiments expressed

in the community about the possible negative impact on the SAR’s autonomy

and the CFA’s authority,378

the NPCSC re-interpreted, under art 67(4) of the

Constitution and BL 158(1), the two provisions to the effect that:

(a) under BL 22(4), people from all areas directly under the

Central Government, including those falling within BL

24(2)(3), must hold valid documents issued by the relevant

central authorities before they could lawfully enter the HKSAR;

and

(b) the right of abode under BL 24(2)(3) was available to only

those Chinese nationals born of parents either one or both of

whom were already HK permanent residents under category (1)

or (2) of BL 24(2) at the time of the children’s birth.379

The SARG did not request interpretation on the question of children born out

of wedlock because the laws in Hong Kong and the mainland already gave

equal status to children born within wedlock and out of wedlock and because

all the judges of the Court of First Instance, Court of Appeal and CFA

adjudicating on the dispute had unanimously held that it would contravene the 377

Hong Kong Bar Association’s papers “A Constitutionally Acceptable Solution” dated 13

May 1999 and “The Bar’s Response to the Government Paper to LegCo” dated 20 May 1999

and the speech by the Association’s Chairman to the Legislative Council on 10 June 1999 –

reproduced in Chan et al (eds) (n 360 above), pp 378 – 382, 387 – 388 and 389 – 391

respectively.

378 See Hong Kong (China) Legislative Council Official Record of Proceedings for sitting on

19 May 1999, pp 7906 – 7992 and the representations reproduced in Chan et al (eds) (n 360

above), pp 348 – 407.

379 The Interpretation by the Standing Committee of the National People’s Congress of

Articles 22(4) and 24(2)(3) of the Basic Law of the Hong Kong Special Administrative

Region of the People’s Republic of China, adopted by the NPCSC on 26 June 1999: [1999]

Gazette Extraordinary, Legal Supplement No 2, p B1576 (LN 167 of 1999, 28 June 1999).

108

ICCPR to exclude from the right of abode scheme children born out of

wedlock whose fathers were Hong Kong permanent residents.380

4.2.3 Do HKSAR courts have the power to review acts of the

NPC and NPCSC?

In the mainland, the CFA’s assertions that the regional courts had

jurisdiction to review the NPC’s acts “became the subject of vehement

criticism by leading mainland constitutional scholars”.381

Apparently more for

the sake of pacifying the central government than clarifying the law, the

HKSAR Government took the unusual step of applying for the CFA to clarify

its judgment and the Court took the equally unusual course of acceding to the

application.382

After reiterating that its judicial power is derived from the

Basic Law, the Court stated:

“The Court’s judgment on 29 January 1999 did not question the

authority of the Standing Committee to make an interpretation under

art 158 which would have to be followed by the courts of the Region.

380

HKSARG’s paper “Right of Abode: The Solution” (n 375 above), pp 318 – 319

381 Bing Ling, “The Proper Law for the Conflict between the Basic Law and Other Legislative

Acts of the National People’s Congress”, pp 151 - 170 in Chan et al (eds) (n 360 above), at p

152 referring to People’s Daily, 8 February 1999. See also Albert H. Y. Chen, “Constitutional

Crisis in Hong Kong: Congressional Supremacy and Judicial Review” (1999) 33 International

Lawyer 1025, at 1025 – 1026. For counter-arguments to the mainland scholars’ criticisms, see

Johannes Chan, “Judicial Independence: Controversies on the Constitutional Jurisdiction of

the Court of Final Appeal of the Hong Kong Special Administrative Region”, (1999) 33

International Lawyer 1015.

382 Against the criticisms made by some lawyers that the government’s move was politically

motivated and putting pressure on the court, a legal scholar argues that the clarification,

sought in reliance on the British House of Lords’ decision in the Pinochet case concerning the

court’s inherent jurisdiction, was necessary to clarify certain legal propositions of great

constitutional importance: Chen (n 381 above), pp 1036 – 1037.

109

The Court accepts that it cannot question that authority. Nor did the

Court’s judgment question, and the Court accepts that it cannot

question, the authority of the National People’s Congress or the

Standing Committee to do any act which is in accordance with the

provisions of the Basic Law and the procedure therein.”383

The clarification, which sidestepped the sensitive and complicated

question of what if an NPC’s act is not in accordance with the Basic Law, did

nothing to retract the Court’s earlier controversial statement.384

As stated by

Johannes M. M. Chan, “(t)he clarification indeed clarifies nothing” and it

“was not a ‘judgment’ but a political statement”.385

Albert H. Y. Chen,

however, opines that the clarification had clarified two points. First, the Hong

Kong courts cannot review interpretations issued by the Standing Committee

under BL 158. Nor, secondly, can they review any act done by the NPC or its

Standing Committee if they have been done “in accordance with the

provisions of the Basic Law and the procedure therein”.386

The question of whether HKSAR courts can review the acts of NPC

and NPCSC can be split into two questions: Are the powers of the NPC and

NPCSC limited by the Basic Law? If so, do the HKSAR courts have

jurisdiction to enforce those limits?

383

Ng Ka Ling & Others v Director of Immigration (No 2) [1999] 1 HKLRD 577, at 578.

384 A view shared by two Hong Kong academics is that while the HKSAR courts do not have

the power to invalidate an NPC’s act inconsistent with the Basic Law, they may refuse to give

effect to such an act which violates the procedural requirement laid down in the Basic Law, eg

amending the Basic Law without going through the procedure set out in BL 159. See Chen (n

381 above), pp 1032 – 1035 and Bing Ling, “Can Hong Kong Courts Review and Nullify

Acts of the National People’s Congress”, (1999) 29 HKLJ 8.

385 Johannes M. M. Chan, “What the Court of Final Appeal Has Not Clarified in Its

Clarification: Jurisdiction and Amicus Intervention” in Chan et al (eds) (n 360 above), pp

171 – 181, at pp 180 and 181 respectively.

386 Chen (n 381 above), pp 1038 - 1039.

110

On the last question, Professor Xiao Weiyun opines that Hong Kong

courts, being regional courts, have no jurisdiction over the supreme organs of

state power. Acts by the NPC or NPCSC are “acts of state”, which are

specifically excluded under BL 19 from the Hong Kong courts’ jurisdiction.387

Professor Johannes Chan, short of stating that the Hong Kong courts have

such power, points out that the NPCSC is, in the absence of any exemption

provision, bound by the Basic Law. He has refrained from mentioning the

NPC presumably because of the doctrine of parliamentary supremacy. By

stating that “the judiciary is the guardian of the law”, he seems to imply that

the Hong Kong courts are entitled to review the NPCSC’s acts.388

The more convincing views come from Professor Albert H. Y. Chen.

Under the Chinese legal system, there is no legal remedy if the NPC or

NPCSC breaches the Constitution, let alone the Basic Law which is merely

national legislation. Not even the Supreme People’s Court in China can

invalidate any act of the NPC or NPCSC on ground of unconstitutionality. On

the other hand, applying the UK common law principle of parliamentary

supremacy, any legislative work by the NPC or NPCSC is outside the courts’

jurisdiction. In the absence of any express authorising provision in the Basic

Law, it cannot be the NPC’s legislative intent to confer on the Hong Kong

courts the jurisdiction to review the NPC’s and NPCSC’s acts. Another

common law principle at play is that a parliament cannot bind its successors,

except in relation to manner and form or procedural restrictions. These

common law principles support the conclusions that (a) an act by the NPC and

NPCSC which satisfies the procedural (as distinct from substantive)

387

Xiao Weiyun, “A Brief Discussion of the Judgments of the Court of Final Appeal and the

NPCSC Interpretation” (translated by Lin Feng) (2001 - 2002) 5 Journal of Chinese and

Comparative Law 93, pp 94 – 95.

388 Johannes Chan, “Judicial Independence: Controversies on the Constitutional Jurisdiction of

the Court of Final Appeal of the Hong Kong Special Administrative Region”, (1999) 33

International Lawyer 1015, pp 1020 – 1021.

111

requirements laid down in the Basic Law is not justiciable in Hong Kong; but

(b) the Hong Kong may refuse to give effect to such an act if it violates the

procedural requirements.389

Chen’s views, apart from legally convincing, accord with the political

reality. Given the Central Government’s jealousy of its sovereign powers, it is

inconceivable that the NPC, when enacting the Basic Law, intended to

empower the HKSAR courts to review the NPC or NPCSC’s acts on policy

ground. Indeed, the Central Government would probably find it difficult to

swallow if a HK court openly refused to give effect to such acts on ground of

procedural impropriety. Yet, in view of the important role played by the Basic

Law in retaining the local residents’ and the international community’s

confidence in the viability of “one country, two systems”, one can count on

the NPC and NPCSC taking care to comply with the express procedural

requirements. If, unfortunately, an act by NPC or NPCSC clearly violating the

policies or procedures laid down in the Basic Law does occur, it will be a test

of the judges’ integrity and skills – political and legal – in juggling with the

“passive virtues”.

One NPCSC’s act did come up for adjudication. That was the

interpretation of BL 22(4) and 24(2)(3) referred to earlier (“the

Interpretation”). The questions of binding effect of the Interpretation and

whether the NPCSC may interpret all provisions in the Basic Law, including

those within the limits of the HKSAR’s autonomy, will be discussed in a later

section of this chapter.

389

Albert Chen, “Constitutional Crisis in Hong Kong: Congressional Supremacy and Judicial

Review”, (1999) 33 International Lawyer 1025.

112

4.2.4 When necessary to refer to NPCSC for interpretation?

With reference to BL 158(3), the effect of the approach in Ng Ka Ling

was that when two Basic Law provisions – one on matters within Hong

Kong’s autonomy and the other on matters falling under BL 158(3) (an

“excluded provision”) – were arguably relevant to the adjudication of a case,

the CFA should refer the excluded provision to the NPCSC for interpretation

only if it “(a)s a matter of substance, … predominantly is the provision that

has to be interpreted in the adjudication of the case”.390

Professor Yash Ghai, while appreciating that the CFA’s “bold line of

reasoning no doubt overcomes some anxieties about autonomy and the

viability of the rule of law”,391

doubts whether the decision not to seek the

NPCSC’s interpretation of BL 22 was correct. “Even if correct, questions will

undoubtedly arise in the future as to the determination of what is the

‘predominant’ provision in question in a particular case.”392

Professor Albert

Chen’s opinion393

– particularly influential as he was a member of the

Committee of Basic Law which has to be consulted by the NPCSC under BL

158(4) on any interpretation of the Basic Law – is that since BL 158 was

inspired by article 177 of the E. C. Treaty, an account of the reference

procedure under art 177 was relevant to the application of BL 158.394

An

390

Ng Ka Ling (n 363 above), p 344I – J.

391 Ghai (n 371 above), p 363I to J.

392 Ibid, 364A.

393 Albert H. Y. Chen, “The Court of Final Appeal’s Ruling in the ‘Illegal Migrant Children

Case: A Critical Commentary on the Application of Article 158 of the Basic Law” in Chan et

al (eds) (n 360 above), pp 113 – 141, at pp 113 – 114.

394 Art 177 has been renumbered as art 234 by the Treaty of Amsterdam – see Stephen

Weatherill, Cases and Materials on EU Law (New York: Oxford University Press, 7th

edn,

2006), p 184. The article reads: “[1]The Court of Justice shall have jurisdiction to give

preliminary rulings concerning: (a) the interpretation of this Treaty; (b) the validity and

interpretation of acts of the institutions of the Community and of the ECB; (c) the

113

authoritative set of guidelines, according to Professor Chen, was laid down by

Lord Denning MR in Bulmer Ltd v Bollinger SA [1974] 1 Ch 401, [1974] 2

All ER 1226, and followed by both English and Scottish courts.395

In Bulmer v Bollinger, it was held that the European Court of Justice in

Luxembourg was the supreme authority in the interpretation of EC law. In the

United Kingdom, the House of Lords, against whose decisions there was no

judicial remedy under national law, was bound to refer to the ECJ, under art

177, a question of interpretation of any EC law. In view of the word “may” in

art 177(2), the other English courts were not so bound. They had discretion

whether or not to refer. “An English court can only refer the matter to the

European Court ‘if it considers that a decision on the question is necessary to

enable it to give judgment’.”396

Lord Denning laid down four guidelines on

when the necessity condition was satisfied. 397

interpretation of the statutes of bodies established by an act of the Council, where those

statutes so provide. [2]Where such a question is raised before any court or tribunal of a

Member State, that court or tribunal may, if it considers that a decision on the question is

necessary to enable it to give judgment, request the Court of Justice to give a ruling theron.

[3]Where any such question is raised in a case pending before a court or tribunal of a Member

State, against whose decisions there is no judicial remedy under national law, that court or

tribunal shall bring the matter before the Court of Justice.”

395 Albert H. Y. Chen, “The Court of Final Appeal’s Ruling in the ‘Illegal Migrant’ Children

Case: A Critical Commentary on the Application of Article 158 of the Basic Law” in Chan et

al (eds) (n 371 above), pp 113 – 141, at pp 117 – 120.

396 [1974] 2 All ER 1226, at 1234b.

397 The guidelines were: (a) “The point must be conclusive. The English court has to consider

whether ‘a decision of the question is necessary to enable it to give judgment’. … The judge

must have got to the stage when he says to himself: ‘This clause of the Treaty is capable of

two or more meanings. If it means this, I give judgment for the plaintiff. If it means that, I

give judgment for the defendant’ “; (b)“Previous ruling” – if the same point had been decided

by the ECJ before, it was not necessary for the English court to refer it again unless it thought

the previous decision to be wrong ; (c)“Acte Claire” – In other cases the English court may

consider the point is reasonably clear and free from doubt. In that event there is no need to

interpret the treaty but only to apply it; and (d) “Decide the facts first” – an investigation of

114

According to Chen, the court should consider the “necessity condition”

(ie whether the interpretation of a particular provision is necessary to enable it

to give judgment) before the “classification condition” (ie whether the

provision in question is one requiring reference to the NPCSC under BL

158(3)). The facts in Ng Ka Ling engaged BL 22(4) and 24(3). The meaning

of the latter, Chen opines, was reasonably clear. What was not clear was the

meaning of the former – more specifically, whether the provision applied to

those who were eligible for the right of abode under BL 24. An interpretation

of BL 22(4) was conclusive of the case and hence, necessary. The crux of the

problem in the CFA’s reasoning was that “(t)he court never went into the

‘necessity condition’ and applied it to article 22(4) for the purpose of

determining whether it is necessary to interpret it for the purpose of deciding

the case”.398

Contrary to the CFA’s view that to refer to the NPCSC the

question of interpretation of BL 22(4) “would be a substantial derogation from

the Region’s autonomy and cannot be right”,399

Chen thinks the CFA need

only refer the question whether the words “people from other parts of China”

in BL 22(4) included mainland residents who have acquired the status of

Hong Kong permanent residents by virtue of article 24. After the NPCSC’s

interpretation had been obtained, the CFA would, in line with the Region’s

autonomy, interpret or apply BL 24 in the light of the NPCSC’s interpretation

of BL 22(4) and decide on its own whether the relevant regional legislation

was compatible with the Basic Law.400

Since the Preamble to the NPCSC’s interpretation stated that before

making its judgment in Ng Ka Ling, “the Court of Final Appeal had not sought

an interpretation of the Standing Committee of the National People’s

the facts would determine whether an interpretation of E.C. law was indeed necessary. It

might turn out that the case could be decided on another ground altogether. See Bulmer v

Bollinger [1974] 2 All ER 1226, at 1234g – h and 1235a – c.

398 Chen (n 393 above), p 125.

399 Ng Ka Ling (n 363 above), 344H – I.

400 Chen (n 393 above), pp 132 – 136.

115

Congress in compliance with the requirement of Article 158(3) of the Basic

Law”, the CFA said, in the subsequent case applying the Interpretation, it

would have to revisit, in an appropriate case, the approach adopted in Ng Ka

Ling in deciding on the requirement referral.401

In Director of Immigration v

Chong Fung Yuen, the CFA opined that Professor Chen’s “argument merits

serious consideration but it does not arise for decision here”.402

4.2.5 Limits to the NPCSC’s power of interpretation?

During the public discussions prior to the NPCSC’s reinterpretation,

one of the objections was that “(i)nterpretation by the NPCSC is inconsistent

with the ‘one country, two systems’ policy under article 158 of the Basic

Law”.403

That the legality of the NPCSC’s reinterpretation would be

challenged in court was only to be expected. The question reached the CFA

without prior discussion in the lower courts.404

In Lau Kong Yung & Others v

Director of Immigration, the leading counsel for the migrant children

401

Lau Kong Yung v Director of Immigration [1999] 3 HKLRD 778, at 800C – F.

402 [2001] 2 HKLRD 533, p 552D.

403 Democratic Party’s representation dated 10 May 1999, reproduced in Chan et al (eds) (n

360 above), pp 348 – 357, at p 348. Also, the Hong Kong Bar Association argued, inter alia,

that the re-interpretation of a provision already interpreted by the CFA would contravene the

“high degree of autonomy, judicial independence and the power of final adjudication under

articles 2, 19, 80 and 82”: Bar Association letter 13 May 1999 (n 377 above), at p 379.

404 After Ng Ka Ling, the Director of Immigration issued removal orders to migrant children

who overstayed in Hong Kong without holding any certificate of entitlement to right of abode.

The requirement for such a certificate, but not the manner to apply for such a certificate, was

held in Ng Ka Ling to be constitutional. As a new application procedure to replace the one

struck down in Ng Ka Ling had not yet been introduced, there was in fact no way in which

these children could obtain the certificate. About two weeks before the NPCSC’s

interpretation, the Court of Appeal quashed the removal orders on the ground that the Director,

when making the orders, had not taken into account a relevant factor, namely the absence of a

workable scheme for the children to establish their right of abode: Lau Kong Yung & Others v

Director of Immigration [1999] 2 HKLRD 516.

116

submitted that in line with the high degree of autonomy granted to the

HKSAR, BL 158 restricted the NPCSC’s power of interpretation, to the extent

that the NPCSC could exercise its power only in response to a judicial

reference in respect of an “excluded provision”, a term used in Ng Ka Ling to

refer to “provisions … concerning affairs which are the responsibility of the

Central People’s Government, or concerning the relationship between the

Central Authorities and the Region” in BL 158(3). He relied for the

submission on the different wording of the equivalent article in the 1988 draft

of the Basic Law.405

The CFA disagreed. The NPCSC’s power of interpretation, it held,

“originates from art 67(4) of the Chinese Constitution and is contained in art

158(1) of the Basic Law itself. The power of interpretation of the Basic Law

conferred by art 158(1) is in general and unqualified terms. That power and its

exercise is not restricted or qualified in any way by art 158(2) and 158(3)”.406

BL 158(3) extended the authority granted to HKSAR courts under BL 158(2),

subject to judicial reference in respect of the “excluded provisions”. As

regards the draft article relied on by the leading counsel, the CFA held that

“the draft would not lead to a different interpretation of art 158 from that

reached on the wording of that article”.407

In Chong Fung Yuen, the CFA

reaffirmed the binding effect of the NPCSC’s interpretation but only to the

extent that it interpreted the two provisions on which the interpretation was

sought, ie BL 22(4) and 22(2)(3).408

Though the NPCSC’s general and unqualified power to interpret the

Basic Law has been established in Lau Kong Yung, Ling Bing opines that “the

405

[1999] 3 HKLRD 778, at 798 – 799.

406 Ibid, at 798J – 799A.

407 Ibid, at 800A.

408 [2001] 2 HKLRD 533, p 545A – I. For an analysis of the case, see Albert H. Y. Chen,

“Another Case of Conflict?” (2001) 31 HKLJ 179.

117

NPCSC’s interpretive power does not extend to all provisions of the Basic

Law, but is confined to the provisions of the Basic Law that are outside the

limits of the autonomy of the HKSAR” and that “the CFA’s assessment on the

NPCSC’s interpretive power is misguided and damaging to the high degree of

autonomy and the ‘One Country Two Systems’ policy which underpin the

constitutional system in Hong Kong”.409

In support, Ling argues that first, a

comparison of the various drafts of the Basic Law shows it was the intention

of the relevant Subgroup under the Basic Law Drafting Committee established

by the NPC that “under what is now Article 158(2), the NPCSC may not

interpret those provisions of the Basic Law that are within the limits of the

autonomy of the SAR”.410

Secondly, under the doctrine of delegation of

powers derived from or implied in Chinese law, after the NPCSC has

authorised the SAR courts to interpret the relevant provision, it is “at least

presumed to have been precluded from having or exercising the delegated

power”.411

Thirdly, the three interpretations issued by the NPCSC since the

handover are all, in the NPCSC’s view, in respect of “excluded provisions”.

On the first point about the drafting history, the CFA held in Chong

Fung Yuen that “(t)he courts’ role under the common law in interpreting the

Basic Law is to construe the language used in the text of the instrument in

order to ascertain the legislative intent as expressed in the language”.412

Since

the wording in BL 158(1) that “(t)he power of interpreting of this Law shall be

vested in the Standing Committee of the National People’s Congress” is clear

and unambiguous, it is neither necessary nor desirable to refer to any extrinsic

material. On the second point, the reasoning in which Ling arrives at the

Chinese doctrine of delegation of powers leaves considerable room for debate.

Professor Wu Jianfan, a well respected Mainland scholar who participated in

409

Ling Bing, “The NPCSC’s Power to Interpret the Basic Law”, (2007) 37 HKLJ 619, at 620.

410 Ibid, p 632.

411 Ibid, p 635.

412 Note 402 above, p 546C – D.

118

the drafting of the Basic Law, opines that authorisation does not mean division

of power.413

Hence, despite BL 158, the NPCSC retains its interpretive power

under the Chinese Constitution. Even assuming Ling’s reasoning to be correct,

the problem is that the doctrine is based on the mainland legal system. In

common law, a delegation does not preclude the delegator from exercising his

power.414

It would, indeed, seriously damage Hong Kong’s autonomy if its

courts were to interpret the Basic Law according to Chinese rules of

interpretation,415

not to mention that such an approach would be beyond the

expertise of lawyers and judges in Hong Kong. I agree with Lin Feng that “by

acknowledging the unqualified authority of the NPCSC’s to interpret

provisions of the Basic Law regardless of their character” – a conclusion

which I consider to be dictated by Hong Kong’s own principle concerning

delegation – “the CFA has been able to maintain and defend the adoption by

all courts in the HKSAR of the common law approach to the interpretation of

the Basic Law”.416

With regard to the third point, at least two scholars with

expertise on Chinese law differ as to whether the NPCSC intended BL 24(2)(3)

to be an “excluded provision”.417

Or, if Ling is right that “the NPCSC seems

to have consistently confined its interpretative power within what it considers

to be areas that fall outside the limits of the autonomy of Hong Kong”,418

one

could count on the NPCSC’s self restraint. The low probability of the NPCSC

413

Wu Jianfan, “Legal Basis for China’s Top Legislature to Interpret Basic Law of Hong

Kong” (translated by Liu Zhenyun), (August 1999) China Law 51, p 53.

414 The UK case law is uncertain on this point: see Paul Craig, Administrative Law (London:

Sweet and Maxwell, 6th

edn, 2008), pp 505 – 506. In Hong Kong, the uncertainty is dispelled

by section 44(1)(a) of the Interpretation and General Clauses Ordinance (Cap 1), which

provides that the delegation of any statutory power “shall not preclude the person so

delegating from exercising or performing at any time any of the powers or duties so

delegated”.

415 See Yash Ghai (n 372 above), pp 189 – 192.

416 Lin Feng, “The Development of Jurisprudence of the Court of Final Appeal in Basic Law

Litigation”, (2001 – 2002) 5 Journal of Chinese and Comparative Law 21, p 39.

417 Chong Fung Yuen (n 402 above), pp 550B – 551D.

418 Ling Bing (n 409 above), p 644.

119

barging its way into the province entrusted to HKSAR courts under BL 158(2)

makes it not worthwhile for the CFA to argue for a limitation to the NPCSC’s

power.

Ling Bing suggests that the practical implications of limiting the

NPCSC’s interpretive powers are “to force the NPCSC and the Central

Authorities to provide more rationality and transparency in their future

interpretive practices”, “to discourage, if not eliminate, the SAR

Government’s tendency to seek short-cut solutions to Hong Kong’s domestic

problems by requesting interpretation from the NPCSC”, “to reinforce judicial

independence and rule of law in Hong Kong” and “provide added impetus for

all parties involved to reflect and debate on the nature, value, limit and

sustainability of Hong Kong’s high degree of autonomy”.419

This is a very

optimistic assessment. Chinese officials have often emphasised that the

principle enshrined in the Basic Law is “One Country, Two Systems”, that

what Hong Kong enjoys is a “high degree of autonomy” and not independence,

that China is a unitary state and that the Basic Law is conferred by the Central

Government, not an agreement between a federal government and a member

state. As evidenced in the reaction to Ng Ka Ling, any suggestion that the

Central Government cannot – as distinct from “will not” – exercise its powers

in Hong Kong would touch raw nerves. If the CFA had so much as hinted in

Chong Fung Yuen that the NPCSC’s power has perhaps been limited by BL

158(2), the Central Government would see it as a challenge to its authority.

The likely response – for example, the NPC passing a resolution to put the

CFA in its place – would probably do irreparable damage to public confidence

in the judicial independence and rule of law in Hong Kong.

As shown in Chen’s analysis of Chong Fung Yuen, Hong Kong judges

have, as far as common law principles permit, defended the SAR judiciary’s

419

Ibid, pp 645 – 646.

120

independence to the extent of ignoring the NPCSC’s open view.420

Ling

Bing’s arguments amount to a suggestion, diametrically opposite to Bickel’s

idea of “passive virtues”, that the CFA should temporarily depart from the

common law principles and stage a costly, futile fight for the purpose of

reinforcing the interpretive powers under BL 158 (2), which the SAR courts

have been exercising (arguably with one disruption) for more than ten years.

4.3 COMPARISON

Neither Singapore’s Constitution nor Hong Kong’s constitutional

documents (the Letters Patent before 1 July 1997 and the Basic Law thereafter)

expressly empowers the judiciary to strike down unconstitutional legislation.

As in Marbury v Madison, constitutional review of legislation in both places is

founded on the supremacy of the constitution and the courts’ inherent judicial

power.

In Singapore, the legal foundation is so weak as to cast doubt on

whether the judiciary does have – or if it does, whether it will ever exercise –

such power. Though there have repeatedly been judicial pronouncements of

the supremacy of the Constitution and the judiciary’s power to declare as void

any unconstitutional legislation,421

the HC’s decision in Taw Cheng Kong was

the only occasion when the court has actually done so.422

Though the decision

was overturned on appeal, the reason for the overturning had nothing to do

with the question of the court’s power. Taw Cheng Kong cannot be regarded

as Singapore’s Marbury but it does leave a glimmer of hope that though the

420

Chen (n 408 above).

421 For example, Chan Hiang Leng Colin v Public Prosecutor [1994] 3 SLR 662, at 681;

Nguyen Tuong Van v Public Prosecutor [2005] 1 SLR 103, at paras 57 and 73; Law Society of

Singapore v Tan Guat Neo Phyllis [2008] 2 SLR 239, at para 143.

422 See notes 343 to 347 above.

121

threshold may be very high, the judiciary will in suitable cases overrule the

legislature’s decisions in the interests of checks and balances.

Ironically, the strongest evidence that the Singapore judiciary does

have the power of judicial review comes from a refutation by the legislature.

The constitutional amendment enacted in January 1989 that “nothing in

Article 93 shall invalidate any law enacted pursuant to this Clause” 423

amounts

to the political branches’ implicit recognition that the judicial power in Article

93 does include the power to invalidate legislation. The CA’s avoidance in

Teo Soh Lung to answer the question whether the Parliament’s power to

amend the Constitution is subject to any limit has left open, though perhaps

only slightly, the question whether what exists in Singapore is parliamentary

supremacy or constitutional supremacy.

The HKSAR courts’ power to conduct constitutional review is derived

from BL 80 (judicial power) read in conjunction with BL 158 (the power of

interpretation of the Basic Law). While the power has been firmly established,

two questions have yet to be tested in court. First, if the final adjudication of a

case requires the interpretation of both an “excluded provision” and a “non

excluded provision”, is referral to the NPCSC necessary? Chen’s answer is in

the affirmative. The CFA has stated that his views merit serious consideration.

Secondly, do HKSAR courts have the power to invalidate an act by the NPC

or NPCSC which violates the Basic Law? The courts have not addressed the

point direct. However, the decision in Chong Fung Yuen not to give effect to

the Preparatory Committee’s Opinions, even though the Opinions amount to

national legislation under the mainland legal system, seems to support Chen’s

view that if an act by the NPC, NPCSC or in the instant case a committee

established by the NPC (the Opinions of which have not been included in

Annex III as required by BL 18(3)) does not comply with procedural

423

Art 149(3) of the Constitution of Singapore.

122

requirement in the Basic Law, the courts may refuse to give it legal effect but

not to declare it invalid.

Goldsworthy suggests the greater difficulty in amending the

constitution to be a possible reason why judges are more creative in

interpreting the constitution than in interpreting other laws.424

This view can

be supported by a comparison between Germany (where the ease in which the

constitution can be amended is said to be a cause for judicial reluctance to

bring about substantial changes through interpretation) and the United States

(where the constitution is difficult to amend and the courts make creative

interpretations).425

If so, the ease in which the constitution can be amended in

Singapore will perhaps lead to its judiciary’s exercising little creativity in

constitutional interpretation?

424

Jeffrey Goldsworthy, “Introduction” in Jeffrey Goldsworthy (ed), Interpreting

Constitutions: A Comparative Study (Oxford; New York: Oxford University Press, 2006), p 1.

425 Rabinder Singh, “Interpreting Bills of Rights”, (2008) 29 Statute Law Review 82, p 87.

123

CHAPTER 5 –

PURPOSIVE INTERPRETATION

5.1 BARAK’S PURPOSIVE CONSTITUTIONAL

INTERPRETATION

The purposive approach is adopted in constitutional interpretation in

Hong Kong. It is also supposedly so in Singapore. The two versions of

purposive interpretation will be compared with that by Barak. Barak, who

advocates the purposive approach for interpretation of all legal documents –

contracts, wills, statutes and constitution – distinguishes between the

subjective and the objective purpose. “Purpose is an expression of the internal

relationship (which changes according to the type of text) between the intent

of the specific author of the text (subjective intent) and the intent of the

reasonable author (objective purpose).”426

When it comes to constitutional

interpretation, “(t)he subjective purpose of a constitution is the goals, interests,

values, aims, policies, and function that the founders of the constitution sought

to actualise”.427

It is to be ascertained from reading “the context as a whole,

paying attention to its structure and its division into different provisions that

play different roles”428

and “from its history, including its pre-enactment

history – the social and legal background that gave birth to the

constitution”.429

On the other hand, the objective purpose is the goals etc. “that

the constitutional text is designed to actualise in a democracy”.430

It is to be

derived from a variety of sources: the structure of the constitution and the

426

Aharon Barak, Purposive Interpretation in Law, translated from the Hebrew by Sari Bashi

(Princeton, New Jersey: Princeton University Press, 2005), p xi.

427 Ibid, p 375.

428 Ibid, p 376.

429 Ibid.

430 Ibid, p 377.

124

relationship between different parts therein, case law and fundamental values

of the society and externally, the fundamental values and fundamental values

of other democratic societies.431

Barak sets a tall order when he “asks the

interpreter to examine all data about the purpose of the constitutional text”

(emphasis added).432

When the data indicate inconsistency between the

subjective and the objective purpose, “(p)urposive interpretation gives

decisive weight to objective purpose”.433

There is no such thing as a true

ultimate purpose. Purposive interpretation is to “formulate the proper (not the

true) relationship between the different kinds of data about subjective and

objective purpose”.434

The theory and philosophy aside, Barak’s book contains guidance on

the wide range of data to take into account in constitutional interpretation. His

advice that an interpreter is to look for a proper ultimate purpose, not the true

ultimate purpose, is realistic and pragmatic. The determination of which of the

possible proper purposes should be adopted is, as he frankly admits, a matter

of judicial discretion. Except for the advice to give decisive weight to

objective purpose (there can be more than one objective purpose behind a

constitutional provision) and to exercise judicial discretion within

constitutional principles (without his elaborating what those principles or their

sources are), he ends the chapter on constitutional interpretation with several

bland statements:

“In exercising discretion, an interpreter can only choose the solution

that appears best to him or her, taking pragmatic considerations into

account. Different interpreters will arrive at different results. My

431

Ibid, pp 377 – 384.

432 Ibid, p 385.

433 Ibid, p 385.

434 Ibid.

125

suggestion is to aspire to the constitutional solution that is most just.

Law and justice thus meet.”435

5.2 SINGAPORE

5.2.1 Section 9A of the Interpretation Act

The 1993 amendments to the Interpretation Act mandates a purposive

approach in the interpretation of “written law”, which includes the

Constitution.436

Section 9A(1) of the Singaporean Act states: “In the

interpretation of a provision of a written law, an interpretation that would

promote the purpose or object underlying the written law (whether that

purpose or object is expressly stated in the written law or not) shall be

preferred to an interpretation that would not promote that purpose or object”

(emphasis added). Section 9A(2) permits extrinsic materials to be taken into

consideration in confirming or ascertaining the meaning of any provision.

5.2.2 Cases applying the purposive approach

Section 9A was applied to constitutional interpretation in

Constitutional Reference No 1 of 1995. A Tribunal formed under art 100 of

the Constitution rejected a literal interpretation of art 22H(1), which set no

limit to the President’s veto power. “(I)t would be wrong to adopt a literal

approach … even if art 22H(1) was not ambiguous or inconsistent, if the

literal approach did not give effect to the will and intent of Parliament.”437

The

Parliament’s intention to restrict the veto power to non-constitutional bills

only was signified in art 5(2A) and also, the words in parenthesis in art 22H(1).

435

Ibid, p 393.

436 Section 2 of Interpretation Act 1993 of Singapore.

437 Constitutional Reference No 1 of 1995 [1995] 2 SLR 201, p 211G – H.

126

Though art 5(2A) had not taken effect, it had not been repealed and so

remained part of the law.

The only other constitutional case I can find in which section 9A was

expressly invoked – to interpret a statutory and not constitutional provision –

is Public Prosecutor v Knight Glenn Jeyasingnam. An issue in the case was

whether section 23 of the Evidence Act (Cap 97), which codified the “no

prejudice” rule in civil cases and contained an express reference to civil cases,

should apply to a plea bargaining representation in a criminal case. Applying a

purposive approach, the High Court held that the purpose of the section was to

encourage consensual case settlement in civil disputes. It would not be

inconsistent with the legislation to apply the same policy to criminal cases. In

exercise of the judiciary’s constitutional power in the administration of justice,

the Court extended the policy behind section 23 to plea bargaining

representations.438

The case can, however, no longer be relied on as a precedent in view

of the disagreement expressed by the Court of Appeal in Law Society of

Singapore v Tan Guat Neo Phyllis, where the CA opined that “(s)ince the

words of s 23 are plain in meaning and purpose, there is no necessity to resort

to ‘purposive interpretation’ to discover the purpose of this section”.439

The

CA’s remark casts doubt on Goh’s finding that “(t)he general approach seems

to be well settled, in that neither ambiguity nor inconsistency must exist

within a statutory provision before a purposive approach could be adopted”.440

438

[1999] 2 SLR 499, paras 55-71.

439 [2008] 2 SLR 239, para 122.

440 Goh Yihan, “Statutory Interpretation in Singapore: 15 Years on from Legislative Reform”

(2009) 21 Singapore Academy of Law Journal 97, para 15. Goh, though fully aware of the

CA’s decision in Phyllis Tan, makes no attempt to reconcile the remark with his general

finding. A possible explanation is that he sees the CA as merely questioning, without actually

overruling Glenn Knight: see n 92 on p 113 of his article. Another possible explanation is that

Goh does not regard the CA’s remark to be a ratio. In Phyllis Tan, the CA was saying that

127

5.2.3 Cases of literalism and textualism

5.2.3.1 What is the meaning of “law” and the purpose of the

Constitution?

Most articles in Part IV of the Constitution, which is Singapore’s

entrenched bill of rights, contain references to “law”, which may define or

limit the scope of the rights.441

What is the meaning of “law”? A related

question is: what is the purpose of the Constitution in general and Part IV in

particular?

The Privy Council, when still Singapore’s final appellant court, made a

“bright flash of discussion”442

on the first question in Ong Ah Chuan v Public

Prosecutor. 443

It held that in cases concerning fundamental rights guaranteed

by the Constitution, “a generous interpretation avoiding what has been called

‘the austerity of tabulated legalism,’ suitable to give to individuals the full

measure of the [fundamental liberties]”444

should be adopted. The PC rejected

the “narrow view” that the requirement for “law” in articles 9(1) and 12(1)

was “satisfied if the deprivation of life or liberty complained of has been

carried out in accordance with provisions contained in any Act passed by the

Parliament of Singapore, however arbitrary or contrary to fundamental rules

Glenn Knight was wrongly decided because it was neither the literal meaning of section 23

nor the purpose behind it for the provision to be applicable to criminal cases.

441 Art 9(1) provides that “no person shall be deprived of his life or personal liberty save in

accordance with the law”. Art 12(1) states that “all persons are equal before the law and

entitled to the equal protection of the law”. Under art 14(2), “Parliament may by law impose”

restrictions on the right to freedom of speech, assembly and association.

442 Michael Hor, “The Presumption of Innocence – A Constitutional Discourse for Singapore”,

[1995] Singapore Journal of Legal Studies 365, p 367.

443 [1981] AC 648.

444 Minister of Home Affairs v Fisher [1980] AC 319, at 328, cited in Ong Ah Chuen (n 443

above), 670B.

128

of natural justice the provisions of such Act may be”.445

In a passage which

took into account both the subjective and objective purposes of the

Constitution, Lord Diplock said:

“In a Constitution founded on the Westminster model and particularly

in that part of it that purports to assure to all individual citizens the

continued enjoyment of fundamental liberties or rights, references to

‘law’ in such contexts as ‘in accordance with law,’ ‘equality before the

law,’ ‘protection of the law’ and the like, in their Lordships’ view,

refer to a system of law which incorporates those fundamental rules of

natural justice that had formed part and parcel of the common law of

England that was in operation in Singapore at the commencement of

the Constitution. It would have been taken for granted by the makers

of the Constitution that the ‘law’ to which citizens could have recourse

for the protection of fundamental liberties assured to them by the

Constitution would be a system of law that did not flout those

fundamental rules.”446

Singapore abolished the appeals to the Privy Council in 1994. Ong Ah

Chuan is still cited as the authority to support the proposition that unequal

treatment of different classes is not inconsistent with art 12(1) so long as the

factor used to distinguish the classes is not purely arbitrary.447

The

Interpretation Act was amended in 1993 to provide for the purposive approach.

However, except for Knight Glenn Jeyasingnam discussed above, there is no

evidence of the purposive approach being adopted in the constitutional cases

reported in the years 1993 to 2008.

445

Ong Ah Chuan (n 443 above), 670C – D.

446 Ibid, 670G-671A.

447 For example, Eng Foong Ho & Others v Attorney General [2009] 2 SLR 542, para 26;

Johari bin Kanadi and another v Public Prosecutor [2008] 3 SLR 422, para 14; and Nguyen

Tuong Van v Public Prosecutor [2005] 1 SLR 103, paras 67-70.

129

In the 1995 case of Jabar v Public Prosecutor, in which a prisoner

sentenced to death penalty applied for stay of execution on the ground that the

prolonged delay in carrying out the execution amounted to cruel and

inhumane treatment (the death row phenomenon) and violated his

constitutional right under art 9(1), the Court of Appeal of Singapore made the

following statement: “Any law which provides for the deprivation of a

person’s life or personal liberty, is valid and binding so long as it is validly

passed by the Parliament. The court is not concerned with whether it is also

fair, just and reasonable as well.”448

Admittedly this was merely obiter and the

CA declined the application based on the separation of powers, ie after the

court had pronounced a sentence, only the President and not the court had the

power to decide whether a delay in execution justified commuting the

sentence.449

It, however, heralded a departure from the Privy Council’s view

in Ong Ah Chuan. In an article published in 1997, Thio Li-ann lamented that

“it appears the Ong Ah Chuan approach was oppugned in Jabar while the

literalist approach in Arumugam Pillai v Government of Malaysia is currently

in the ascendancy, with grave implications for the health of constitutionally

safeguarded fundamental liberties.” 450

Her concern that the court might

exercise self-constraint and adopt a literal, positivist approach to interpret “the

law” in the Constitution as any enacted law has unfortunately come true. In

two book chapters published in 2009, Singapore courts were said to adopt

“textualist approach”,451

“over legalistic approach”,452

“positivism”,453

448

[1995] 1 SLR 617, at 631A-B.

449 Ibid, at 632B-D.

450 Thio Li-ann, “Trends in Constitutional Interpretation: Oppugning Ong Awakening

Arumugam”, [1997] Singapore Journal of Legal Studies 240, at 241.

451 Jaclyn Ling-Chien Neo and Yvonne C. L. Lee, “Constitutional Supremacy: Still A Little

Dicey”, Ch 7 in Li-ann Thio and Kevin Y. L. Tan (eds), Evolution of A Revolution: Forty

Years of the Singapore Constitution (Milton Park, Abingdon: New York, N.Y.: Routledge-

Cavendish, 2009), p 180.

452 Ibid.

130

“literalist, amoral interpretive approaches”,454

“extra-textualism”455

and “strict

textualist approach”456

in constitutional interpretation in rights cases.

A study of the constitutional cases from 1997 to 2008 confirms the

commentators’ observations mentioned above. The courts have not addressed

the subjective or objective purpose of Part IV of the Constitution. Worse still,

some judicial comments create the impression that the judges see Part IV not

as protective of rights but instead, as an instrument to empower the legislature

to restrict rights. For example, in Chee Soon Juan v Public Prosecutor, Chee

argued that the requirement in the Public Entertainment and Meetings Act to

obtain licence for publicising and holding public rallies was inconsistent with

the right to free speech enshrined in art 14(1)(a) of the Constitution. Rejecting

the argument, Chief Justice Yong referred to art 14(2)(a) and said:

“Parliament may by law impose – (a) on the rights conferred by clause

(1)(a), such restrictions as it considers necessary or expedient in the

interest of the security of Singapore … public order or morality …” 457

“In any society, democratic or otherwise, freedom of speech is not an

absolute right. Broader societal concerns such as public peace and

order must be engaged in a balancing order exercise with the

enjoyment of his personal liberty. This is embodied in art 14(2)(a). I

did not find the provision of PEMA to be in any way contrary to our

Constitution. Indeed, it seemed eminently clear that the enactment of

453

Li-ann Thio, “Protecting Rights”, Ch 6 in Evolution of A Revolution (n 451 above), at p

217.

454 Ibid.

455 Thio Li-ann, “In Search of the Singapore Constitution: Retrospect and Prospect” Ch 10 in

Evolution of A Revolution (n 451) above, at p 340.

456 Ibid.

457 [2003] 2 SLR 445, para 19.

131

PEMA was fully within the power of the legislature pursuant to the

power granted to it by art 14(2)(a).”458

5.2.3.2 Counter-majoritarian consideration

Article 9(3) of the Constitution states: “Where a person is arrested, he

shall be informed as soon as may be of the grounds of his arrest and shall be

allowed to consult and be defended by a legal practitioner of his choice.” In

Rajeevan Edakalavan v Public Prosecutor,459

the issue was whether the article

conferred on an arrested person the right to be informed of his legal right to

counsel. Chief Justice Yong sitting as the High Court held that to read such a

right into art 9(3) would amount to judicial legislation, in defiance of the clear

wording of the article. In a passage which could have been written by

Waldron,460

he ended with the following words:

“The judiciary is in no position to determine if a particular piece of

legislation is fair or reasonable as what is fair or reasonable is very

subjective. If anybody has the right to decide, it is the people of

Singapore. The sensitive issues surrounding the scope of fundamental

liberties should be raised through our representatives in parliament

who are the ones to address our concerns. This is especially so with

regard to matters which concern our well-being in society, of which

fundamental liberties are a part.”461

It is accepted that, as the judge said, based on the literal meaning of the

words, “nowhere in art 9(3) does it provide that there is a further right to be

458

Ibid, paras 19 and. 20.

459 [1998] 1 SLR 815.

460 See Jeremy Waldron, “A Right-based Critique of Constitutional Rights”, (1993) 13 Oxford

Journal of Legal Studies 18.

461 Note 459 above, para 21.

132

informed of one’s right to counsel”.462

However, the purpose of the article is

to ensure fair trial in a criminal case. To confer on a suspect the right to legal

representation assumes most people’s ignorance of the law. In keeping with

the assumption, it would promote the purpose of fair trial to read into the

article a right to be informed of the right to legal representation. That would

be the preferred interpretation mandated by section 9A(1) of the Interpretation

Act, the application of which did not require any ambiguity or

inconsistency.463

5.2.3.3 Judicial deference to the executive too

In the above examples, the law relied on to restrict fundamental

liberties was statutory provisions enacted by the Parliament. In a series of

cases concerning the religious group the Jehovah’s Witnesses (“JW”), their

right under art 15(1) to profess, practise and propagate their religion was

severely limited as a result of executive orders, made under legislative

provisions which conferred wide and general powers on the executive. The

constitutionality of the legislative provision was not challenged presumably

because the JW adherents’ counsel saw no hope of success, given the apparent

judicial deference to the legislature. The cases turned on the application of

administrative law principles. At the core of the dispute was whether, in a

matter which touched on national security, the court could examine the

procedural propriety and merits of the executive’s decision.

The JW’s doctrine advocated refusal to perform military service. The

Minister of Home Affairs de-registered the Singapore Congregation of

Jehovah’s Witnesses under section 24 of the Societies Act on the ground that

it was a threat to national security (“the de-registration order”). At the same

time, pursuant to section 3 of the Undesirable Publications Act, the Minister

462

Ibid, para 19.

463 See note 440 above and accompanying text.

133

for Culture banned all publications by the Watch Tower Bible & Tract Society

(“WTBTS”), which was the JW’s parent body (“the prohibition order”). In the

first case arising from the two orders (“the JW No 1 case”), several JW

adherents appealed against their conviction under the UPA for the possession

of WTBTS publications.464

They challenged the validity of the orders alleging

that: the two orders, made without JW being given the right to be heard,

breached natural justice and hence, were ultra vires art 15 (freedom of religion)

of the Constitution and also, ultra vires the Societies Act and UPA

respectively; the de-registration order was invalid as there was no factual basis

for regarding JW as a threat to national security; and the banning of all

WTBTS publications were unreasonable because they included many which

could not be regarded to be contrary to the public interest, eg the King James

Version of the Bible, which was widely circulated in Singapore.

When considering the appeal, the High Court took into account the

additional information provided by the government that during the years 1972

to 1994, 108 persons who claimed to be JW adherents had been disciplined for

refusing to comply with orders to put on military uniforms.465

On the right to

be heard, the court noted that the legislative provisions in question did not

expressly require the ministers concerned to give the affected parties a right to

be heard before they made the orders. Since the purpose of the de-registration

and prohibition orders was to preserve national security, “the ordinary

principles of natural justice have to be modified accordingly (per Lord

Denning MR in R v Secretary of State for Home Affairs, ex p Hosenball). As

such, there is no room for the appellants’ contention that the requirements of

natural justice must to be (sic) complied with fully”.466

Rejecting the

464

Chan Hiang Leng Colin & Others v Public Prosecutor [1994] 3 SLR 662.

465 Ibid, at 684G – H. The average of about five persons per year does not tally with what the

Minister for Trade and Industry said in Parliament in February 1990 that “(e)ach year, a few

dozen young men who are Jehovah’s Witnesses have to be court-martialled because they

refuse to do National Service, and then sentenced to detention” – see 685C – D.

466 Ibid, 688B.

134

challenge about the merit of the de-registration order, the court opined that “it

was not for this court to substitute its view for the minister’s as to whether the

Jehovah’s Witnesses constituted a threat to national security. … (T)he

appellants had the burden of showing that the Minister had exercised his

powers wrongly. This court was not here to review the merits of the decision

and conclude that the Jehovah’s Witnesses were or were not a threat to public

order”.467

As regards the unobjectionable nature of some WTBTS publications,

the court’s response was this:

“I do not see the merit of this contention. The fact that one publication

is unobjectionable as to its contents, be it the King James Version or

‘Alice in Wonderland’, does not make the ban unreasonable per se.

Instead, it was not unreasonable, in my view, for the minister to

prohibit all publications by WTBTS. The minister’s actions were

clearly to stop the dissemination and propagation of beliefs of the

Jehovah’s Witnesses and this would of necessity include every

publication by WTBTS. Any order other than a total blanket order

would have been impossible to monitor administratively.”468

Dealing with procedural fairness first, Hosenball was a case in which

the UK Home Secretary deported a US citizen on the ground that he had

“while resident in the United Kingdom, in consort with other sought to obtain

and has obtained for publication information harmful to the security of the

United Kingdom and that this information has included information

prejudicial to the safety of the servants of the Crown”.469

His request to be

provided with particulars supporting the allegation was refused by the Home

Secretary. The UK Court of Appeal upheld the refusal for two reasons. First,

467

Ibid, 685H – I.

468 Ibid, 687B – D.

469 Regina v Secretary of State for Home Affairs, Ex parte Hosenball [1977] 1 WLR 766, at

777C – D, per Lord Denning.

135

the provision of such particulars would disclose and endanger the sources of

information.470

Secondly, Mr Hosenball, after informed of the allegations, was

given the opportunity to appear before a panel of advisers and made

representations to them before they tendered advice to the Home Secretary.471

The exception made in Hosenball to the natural justice rules should not

have been applied to JW (No 1) case because (a) constitutional rights were

involved (while Mr Hosenball resided in the United Kingdom on the British

Government’s hospitality), (b) the JW adherents did not have the opportunity

to make representations before the making of the de-registration and

prohibition orders and (c) informing the JW adherents of the allegations

(which presumably were based on actual instances of JW adherents refusing to

perform national service) would not cause any risk to any source of

information. In the GCHQ case, the House of Lords held that executive

decisions involving national security or the exercise of prerogative power

were reviewable by the court on ground of procedural propriety.472

The

decision not to conduct consultation prior to changing the conditions of

service of the GCHQ staff was upheld by the court only because such

consultation would give rise to a real risk to national security. Similar risk

would not have arisen from giving JW a hearing before the Ministers decided

whether or not to make the two orders.

The High Court supported its decision in JW No 1 case by adding: “It

cannot be disputed that it is part of the Jehovah’s Witnesses’ doctrine that

military service is prohibited for its adherents. … Since the basis for the

orders clearly could not be disputed, no purpose would be achieved if a

hearing or inquiry was held.”473

Judicial comments in the United Kingdom

470

Ibid, at 782F – G.

471 Ibid, 785B to C.

472 GCHQ case (n 340 above).

473 Chan Hiang Leng (n 464 above), 688C – D.

136

have cast doubt on the propriety in prejudging the futility of a hearing.474

In R

v Chief Constable of the Thames Valley Police ex parte Cotton, Bingham LJ

expected fair hearing to be denied only in a “great rarity” of cases and offered

six reasons for the rarity.475

While cases do exist in which a hearing would not

have made any difference to the end result,476

the JW (No 1) case did not

belong to that category.477

The court’s remarks in the JW No 1 case quoted above seem to suggest

that it had no power to review the merit of a case involving national security.

In United Kingdom – which again is used as the standard for comparison

because of the British legal heritage in Singapore – “(n)ational security is

often said to be an area in which the courts should not readily intervene” but

“here too the court will no longer unquestioningly accept the say-so of the

executive or other experts, and will properly intervene if the decision is based

474

William Wade and Christopher Forsyth, Administrative Law (Oxford: Oxford University

Press, 9th

edn, 2004), pp 506 – 509.

475 [1990] IRLR 344, para 60.

476 For example, the case of Cotton, ibid.

477 Here, there was before the High Court an expert witness’ denial that “the Jehovah’s

Witnesses preached that national service should not be undertaken by their adherents and [the

witness said] that they, in fact, advocated an official policy to tell persons not to break the

law”: Chan Hiang Leng (n 464 above), 669B. The information, if presented, would have

prompted a fair-minded minister to consider whether the proposed prohibition order was

indeed based on accurate facts. The denial was countered by the government’s information on

the number of JW adherents who had been disciplined for refusing to wear military uniforms.

If similar statistics had been contained in a notice inviting representation, the JW might have

come up with equally relevant statistics concerning JW adherents who had performed national

service. At the very least, the High Court should have enquired into the Minister’s reason for

not giving JW a hearing. Its conclusion – reached without such an enquiry – that “no purpose

would be achieved if a hearing or inquiry was held” amounts to the court deciding on the

substantive merits of the case, contrary to its own stand that the question of what national

security required (and by implication, what it did not require) was one for the executive to

decide.

137

on a material mistake of fact, or is otherwise illegal or irrational”.478

In any

case, the court in JW No 1 case confined itself to the question whether there

was evidence before the minister that JW was a threat to national security. It

concluded that there was, namely the JW’s doctrine advocating refusal to

perform military service, even though the court did not disagree with the claim

“that the Jehovah’s Witnesses in Singapore were a responsible, honest and

law-abiding group, which kept strictly out of politics”.479

Regardless of whether the Singapore judiciary had power to conduct

substantive review, the court in JW No 1 did state its views on the merits of

the prohibition order: “The fact that one publication is unobjectionable as to

its contents, be it the King James Version or ‘Alice in Wonderland’, does not

make the ban unreasonable per se”. In a country which values racial and

religious harmony, how many reasonable persons would agree that the two

mentioned books should be banned simply because they are published or

printed by a particular organisation? The blanket prohibition appeared to be

Wednesbury unreasonable. In justifying its decision not to strike down the two

orders, the court remarked that “(a)ny order other than a total blanket order

would have been impossible to monitor administratively”.480

The impossibility

was not explained. A constitutional right means very little indeed if it can be

restricted by a bald claim of administrative difficulty.

478

Harry Woolf, Jeffrey Jowell and Andrew Le Sueur, De Smith’s Judicial Review (London:

Sweet & Maxwell, 6th

edn, 2007), pp 19 – 20. Woolf et als have not supported the second of

the quoted statements with any judicial decisions. In Regina v Secretary of State for the Home

Department, Ex parte Chahal [1995] 1 WLR 526, the UK Court of Appeal held that though

national security was involved, the Secretary of State was required to balance the risks to

national security against the risks to the individual who was proposed to be deported. The

requirement there was, however, imposed by the relevant statute and international convention,

which have nothing to do with a case like JW No 1.

479 Chan Hiang Leng (n 464 above), at 684B.

480 Note 468 above.

138

In a subsequent case concerning the judicial review of another order

banning JW publications by the International Bible Students Association

(“IBSA”), the Court of Appeal, citing the GCHQ case as the authority, held

that even though matters of national security were not justiciable, the court

could conduct a substantive review by applying the Wednesbury test.481

The

CA did not find it Wednesbury unreasonable – in fact, not even arguably so –

to ban all publications of the IBSA, including King James version of the Bible

printed by the IBSA. Nor was it arguably unreasonable to de-register the

Singapore Congregation of Jehovah’s Witnesses even though the women and

some other members of the JW faith did not have to perform military service.

Delivering the CA’s judgment was Karthigesu JA, the same judge who,

several years later, struck down the over-inclusive and under-inclusive

legislation in Taw Cheng Kong.482

If an executive order banning publications

including the Bible was not over-inclusive, what was it?

In the series of cases which followed, the JW adherents’ application to

refer the constitutional questions to the Court of Appeal was refused;483

materials published by the International Bible Students’ Association, a JW

organisation, were also banned without a hearing;484

an adherent was

convicted for possession of the banned publications;485

an office-bearer of the

deregistered Singapore Congregation of Jehovah’s Witnesses, who was at

home and not attending any meeting of the JW when arrested, was convicted

for being member of an unlawful society;486

several adherents were convicted

481

Chan Hiang Leng Colin v Minister for Information and the Arts [1996] 1 SLR 609, at

619G – G and 621D – E.

482 Note 343 above.

483 Chan Hiang Leng Colin & Others v Public Prosecutor [1995] 1 SLR 687.

484 Chan Hiang Leng Colin & Others v Minister for Information and the Arts [1995] 3 SLR

644 and Chan Hiang Leng Colin & Others v Minister for Information and the Arts [1996] 1

SLR 609

485 Liong Kok Keng v Public Prosecutor [1996] 3 SLR 263

486 Chan Cheow Khiang v Public Prosecutor [1996] 3 SLR 271

139

for attending a meeting of an unlawful society with two of them being

convicted further for allowing their premises to be used for such a meeting;487

and a person, who was accompanying another person possessing a banned

publication, was convicted for possessing prohibited publications in

furtherance of a common intention though he (the first person) was not found

to be carrying any prohibited publication.488

Finally, in a civil case, the Court

of Appeal upheld an educational institution’s decision to dismiss a teacher

who, being a JW adherent, refused to take the National Pledge and sing the

National Anthem during the school assembly.489

Despite all the criminal liabilities arising from the de-registration and

prohibition orders, the court did not see the orders as infringing religious

freedom. The following passage from a judicial review case was cited in a

criminal appeal:

“A citizen’s right to profess, practice and propagate his religious belief,

even a Jehovah’s Witness, has not been taken away. It is the manner of

carrying out these activities that is circumscribed by the relevant

orders. The relevant orders provide that, in pursuing these activities,

Jehovah Witnesses may not be a member of the SCJW or any other

unregistered society and they may not have access to the prohibited

publications.”490

What is the JW’s remaining right to profess, practise and propagate

their religious belief when it is an offence for them to be members of their

religious congregation, an offence to assemble in private homes for prayers

487

Kok Hoong Tan Dennis & Others v Public Prosecutor [1997] 1 SLR 123

488 Quak Siew Hock David v Public Prosecutor [1999] 1 SLR 533.

489 Peter Williams v Institute of Technical Education [1999] 2 SLR 569

490 Chan v Minister for I & A [1996] 1 SLR 609, 615B – D. Cited in Kok v PP (n 487 above),

para 25.

140

and biblical study and an offence to possess or distribute publications

propagating their religious belief? Was the court saying that they were free to

profess and propagate the same belief through words of mouth or through

publications other than those published or printed by WTSBS and IBSA and

also, free to assemble to share the same belief through prayers and biblical

study so long as the size of the assembly was smaller than the ten persons

provided for in the Societies Act? If so, it would be a mockery of the purpose

of the Societies Act and the UPA. It goes to show that, even assuming it to be

a legitimate objective to prevent spreading the belief in refusal to perform

national service, the de-registration and prohibition orders could not achieve

the objective.

5.3 HONG KONG

5.3.1 Purposive interpretation of the Hong Kong Bill of Rights

The Hong Kong Bill of Rights Ordinance contains its own interpretive

provisions, ie subsections (3) and (5) of section 2.491

Taking into account the

provisions and the common law principle that a statute be interpreted in a

manner consistent with the state’s international treaty obligations, the Hong

Kong Court of Appeal laid down, in R v Sin Yau Ming, the general principles

for interpretation of the Hong Kong Bill of Rights (ie Part II of HKBORO

which mirrors the specific rights clauses in the ICCPR). The CA held that the

Hong Kong Bill should be regarded as being sui generis and a constitutional

491

The two sub-sections read: “(3) In interpreting and applying this Ordinance, regard shall be

had to the fact that the purpose of this Ordinance is to provide for the incorporation into the

law of Hong Kong of provisions of the International Covenant on Civil and Political Rights as

applied to Hong Kong, and for ancillary and connected matters. (5) There shall be no

restriction upon or derogation from any of the fundamental right recognised or existing in

Hong Kong pursuant to law, conventions, regulations or custom on the pretext that the Bill of

Rights does not recognise such rights or that it recognises them to a lesser extent.”

141

document, not an ordinary statute. The Court, per Silke VP, concluded: “ We

must look, in our interpretation of the Hong Kong Bill, at the aims of the

Covenant and give ‘full recognition and effect’ to the statement which

commences that Covenant. From this stems the entirely new jurisprudential

approach to which I have already referred.”492

Kempster JA, citing from the UK authorities Minister of Home Affairs

v Fisher [1980] AC 319 and Attorney General of the Gambia v Jobe [1984]

AC 689, added that the Hong Kong Bill called for a purposive and generous

interpretation “avoiding what has been called ‘the austerity of tabulated

legalism,’ suitable to give to individuals the full measure of the fundamental

rights and freedoms referred to [in the ICCPR]”.493

The HKCA’s approach to

the interpretation of the Hong Kong Bill was endorsed by the Privy Council in

Lee Kwong-kut.494

5.3.2 Purposive interpretation of the Basic Law

In Ng Ka Ling, the first case in which the CFA interpreted the Basic

Law, the Court saw no need for any authority on adopting the purposive

approach. A constitutional document being “a living instrument intended to

meet changing needs and circumstances”,495

the Court held, “(i)t is generally

accepted that in the interpretation of a constitution such as the Basic Law a

purposive approach is to be applied”.496

This does not mean that the text is

unimportant. “So, in ascertaining the true meaning of the instrument, the

courts must consider the purpose of the instrument and its relevant provisions

492

Note 355 above, at p 107.

493 Minister of Home Affairs v Fisher [1980] AC 319, at 328 per Lord Wilberforce. Cited by

Kempster JA in Sin Yau Ming (n 355 above), at p 125, lines 8 – 11.

494 Note 356 above, p 90, lines 5 – 33.

495 Ng Ka Ling (n 363 above), at 339J.

496 Ibid.

142

as well as the language of its text in the light of the context, context being of

particular importance in the interpretation in the interpretation of a

constitutional instrument.”497

The CFA stated that “(t)he courts should give a generous interpretation

to the provisions in Chapter III [of the Basic Law] that contain these

constitutional guarantees in order to give to Hong Kong residents the full

measure of fundamental rights and freedoms so constitutionally

guaranteed”.498

On the other hand, any restriction of the fundamental rights

must be narrowly interpreted.499

“If the language of [a BL provision] were

ambiguous, that is, it is reasonably capable of sustaining competing alternative

interpretations, the principles that the Court must have regard to, … [for

example, a right under the BOR], would require the Court to lean in favour of

an interpretation … that would be conducive towards achieving [those

principles].”500

5.3.3 Constraint posed by the text

“Semantic meaning sets the limits of interpretation. The interpreter

may not give the text a meaning that its language cannot bear.”501

The

constraint posed by the text to constitutional interpretation is illustrated in

Chong Fung Yuen, which involved the interpretation of BL 24(2)(1).502

The

CFA stated that “(w)hilst the courts must avoid a literal, technical narrow or

rigid approach, they cannot give the language a meaning which the language

cannot bear.”503

The Court went on to hold that all Chinese citizens born in

497

Ibid, at 340B.

498 Ibid, at 340G.

499 Gurung Kesh Bahadur v Director of Immigration [2002] 2 HKLRD 775, para 24.

500 Tam Nga Yin & Others v Director of Immigration [2001] 2 HKLRD 644, 656F – G.

501 Barak (n 426 above), p xiii.

502 Note 402 above.

503 Ibid, 546C – F.

143

Hong Kong came within BL 25(2)(1) since there was nothing in the purpose

and context of BL 24(2)(1) to suggest that the parents’ immigration status was

relevant to the children’s right of abode. “In conformity with the common law,

the Court is unable, …, to depart from what it considers to be the clear

meaning of art 24(2)(1) in favour of a meaning which the language cannot

bear.”504

Just how clear and precise must the language be for its meaning to be

regarded as unambiguous and therefore not to depart from? The question

comes to mind as one reads the series of judgments concerning the right of

abode of adopted children. Two of the nine judges involved differed from the

others on whether the plain meaning of BL 24(2)(3) was clear and

unambiguous.505

The same question also arises from the series of judgments

concerning the meaning of “the court” in BL 35.506

The answer to the above question is to be found in the CFA’s

judgment in Stock Exchange of Hong Kong Ltd v New World Development Co.

Ltd & Others, when the CFA over-ruled the lower courts’ decision that the

word “court” included the disciplinary tribunals over lawyers and doctors. 507

504

Ibid, p 556B.

505 The cases were: Lui Sheung Kwan & Another v Director of Immigration [1998] 1 HKLRD

265, Xie Xioyi & Others v Director of Immigration [1999] 2 HKLRD 505, Xie Xiaoyi v

Director of Immigration [2000] 2 HKLRD 161 and Tam Nga Yin (n 500 above).

506 The cases were: Dr Ip Kay Lo v Medical Council of Hong Kong [2003] 3 HKLRD 851,

Solicitor v Law Society of Hong Kong, unreported, CACV 302/2002, Court of Appeal, 18

February 2004, New World Development Co. Ltd v Stock Exchange of Hong Kong [2005] 2

HKLRD 612.

507 In Stock Exchange of Hong Kong Ltd v New World Development Co. Ltd & Others [2006]

2 HKLRD 518, para 45, Ribeiro PJ in his usual comprehensiveness examined, inter alia,

various articles in the Basic Law containing references to “the courts” or describing the legal

system. “It is therefore entirely clear that when, in such articles, the Basic Law refers to ‘the

courts’ it is referring to the courts of judicature: the institutions which constitute the judicial

system, entrusted with the exercise of the judicial power of the HKSAR.” (Para 45). The

144

The approach adopted by the CFA is that where the plain meaning of a

provision appears to be clear, the interpreter should examine whether the

putatively clear meaning fits in with the purpose of the part of the document,

and then the purpose of the whole document, in which the provision appears.

If it does so fit, the interpreter, contrary to Barak’s advice to examine all data

relating to the subjective and objective purposes, should adopt the plain

meaning without looking outside the document. Cheung JA deviated from this

approach when he, in Dr Ip Kam Lo, sought assistance from foreign

jurisprudence and art 10 of the Bill of Rights without first examining the

immediate context in which the provision appeared, ie the Basic Law itself.508

He did so apparently out of zealousness to implement the CFA’s guidance to

give a generous and purposive interpretation to the human rights provisions in

the Basic Law. The CFA’s approach, which was no different from the

common law principle in statutory interpretation, restricted the scope of the

context from which the purpose of the provision under interpretation was to be

derived. In doing so, it limited judicial discretion and avoided the possible

accusation of judicial legislation. However, the grammatical meanings of

constitutional provisions are seldom clear and precise. Furthermore, as shown

in the UK leading case Kammins Ballrooms Co. Ltd v Zenith Investments

(Torquay) Ltd, analytical skills are required in order to ascertain whether an

purposes of BL 35, as gleaned from the relevant articles in the Basic Law, were to entrench

the individuals’ rights in relation to “the courts” and to ensure “that the fundamental rights

conferred by the Basic Law as well as the legal rights and obligations previously in force and

carried through to apply in the HKSAR are enforceable by individuals and justiciable in the

courts” (paras 49 and 50). Hence, “(t)he ’courts’ in this context are plainly the courts of law”

(para 50). The word should not be given a wider meaning to encompass tribunals such as the

disciplinary committees being considered in the instant and previous cases (para 50). Bohkary

PJ, concurring, added that the rights and freedoms enshrined in Chapter III of the Basic Law,

in which BL 35 appeared, were “safeguarded by the structural provisions of the Basic Law.

So, when art 35 refers to ‘the courts’ it obviously means the judiciary and nothing else” (para.

1).

508 Ip Kay Lo v Medical Council (n 506 above), paras 5 – 10.

145

exception should be read into what appears to be a clear, unambiguous

provision.509

5.4 COMPARISON

Despite the purposive interpretation mandated by section 9A of the

Interpretation Act, the courts of Singapore have been adopting a strictly

textualist approach in constitutional interpretation. A provision is read in

isolation. There has been no attempt to ascertain the purpose of the provision

being interpreted in the context of other provisions in the Constitution, let

alone inquiring into the extrinsic materials as permitted by section 9A(2) of

the Act.510

In particular, the word “law” which appears in Part IV of the

Constitution on “Fundamental Liberties” has been interpreted as any law

enacted by the Parliament. The effect is that Part IV, instead of protecting the

individuals’ rights, has become empowering provisions for the Parliament to

restrict such rights. The courts justify this approach on ground of democracy –

the question of how much rights the individuals should have is a matter for the

people’s elected representatives to decide. Such thinking may in reality

accurately reflect the Parliament’s, as evidenced from the Parliament’s quick

and robust reaction to Chng Suan Tsz.511

However, for the courts to give effect

to the subjective purpose (in Barak’s parlance) of the politicians without any

inquiry into the objective purpose means that the separation of powers, an

essential ingredient of the rule of law, is missing. Judges in Singapore may, in

line with Barak’s views, “[choose] the solution that appears best to [them],

509

[1971] AC 850

510 A commentator opines that section 9A permits the examination of extrinsic materials – any

extrinsic materials without general restriction – even if the text is not ambiguous and a literal

interpretation does not give rise to absurdity: Goh Yihan, “Statutory Interpretation in

Singapore:15 Years on from Legislative Reform” (2009) 21 Singapore Academy of Law

Journal 97, pp 130 – 132.

511 See section 4.1.2.

146

taking pragmatic considerations into account”.512

Their choice, however, is

far from “the constitutional solution that is most just”.513

If Barak’s purposive

interpretation represents the norm, Singaporean courts’ performances are way,

way below standard. Or, even if Fish’s intentionalist-originalist’s

interpretation is the standard, there is no indication of the courts’ conducting

any “good old-fashioned empirical inquiry”514

into the Parliament’s intention

behind Part IV.

The Hong Kong CFA’s “text, context and purpose” approach to the

interpretation of the Basic Law looks to coincide with Barak’s, except that in

the cases discussed above, the courts have been able to ascertain the purposes

from the Basic Law itself without the aid of any extrinsic materials other than

the Joint Declaration. Unlike the silence in the Constitution of Singapore as to

its purposes, the Preamble and Chapter 1 of the Basic Law state expressly the

policies of “one country, two systems”, high degree of autonomy for HKSAR,

judicial independence and the safeguard of the residents’ rights and freedoms.

All this provides a firm legal foundation for the CFA to take a liberal

approach to determine the courts’ interpretive powers and the extent of rights

and freedoms which should be enjoyed by the residents. That has happened

even though section 19 of the Interpretation and General Clauses Ordinance

(Cap 1) mandating a “large, fair and liberal construction and interpretation as

will ensure the best attainment of the object of the Ordinance” does not apply

to the Basic Law. The NPCSC’s Interpretation may be compared to

Singapore’s constitutional amendments after Chng Suan Tsz. The incident

does clip the CFA’s wings a bit. There is, however, no evidence of the Court

receding from the pro-autonomy and pro-right stand it took in Ng Ka Ling.

512

Barak (n 426 above), p 393.

513 Ibid.

514 Stanley Fish, “Intention Is All There Is: A Critical Analysis of Aharon Barak’s Purposive

Interpretation in Law” (2008) 29 Cardozo Law Review 1109, at p 1141.

147

“The Court of Final Appeal has readily and consciously assumed a role of the

guardian of fundamental rights.”515

515

Johannes Chan, “Basic Law and Constitutional Review: The First Decade” (2007) 37

HKLJ 406, at 419

148

CHAPTER 6 –

USE OF FOREIGN JURISPRUDENCE

6.1 ARGUMENTS FOR AND AGAINST THE USE

OF FOREIGN JURISPRUDENCE

A world common law is developing in the use of foreign precedents,

commercial laws and human rights.516

Yet, even in a cosmopolitan country

like the United States, the use of foreign law in constitutional interpretation is

a controversial issue not only among the academics but also among the

justices of the US Supreme Court.517

References to foreign laws are not

uncommon in the Court’s judgments. The debate was rekindled in and after

Roper v Simmons. 518

The case drew strong reactions from the politicians and

some went so far as to suggest that the justices concerned be impeached.519

516

Robin Cooke, “The Judge in An Evolving Society” (1998) 28 HKLJ 145, pp 147 – 149.

517 Mark C. Rahdert, “Comparative Constitutional Advocacy”, (2007) 56 American University

Law Review 553

518 (2005)125 S. Ct. 1183. The Supreme Court decided, by five to four, that capital

punishment for a person under 18 would amount to cruel and unusual punishment, in

contravention of the Eighth Amendment. The majority of the Court reached the decision on

the basis that most of the states in the United States had abolished the execution of persons

under 18, death penalty was a disproportionate response considering the mental states of such

persons and in other parts of the world, Somalia was the only country which administered the

penalty on minors.

519 Constitution Restoration Act of 2005. See Mark Tushnet, “The ‘Constitution Restoration

Act’ and Judicial Independence: Some Observations” (2006) 56 Case Western Reserve Law

Review 1071; Ronald Kahn, “The Constitution Restoration Act, Judicial Independence and

Popular Constitutionalism” (2006) 56 Case Western Reserve Law Review 1083; and Roger P.

Alford, “Four Mistakes on ‘Outsourcing Authority’” (2006) 69 Albany Law Review 653, pp

661 – 663.

149

A variety of arguments have been advanced against the use of foreign

laws. First, the US Constitution is unique in terms of language, structure,

history and the values it enshrines; hence, foreign laws are irrelevant.520

Secondly, the practice amounts to circumvention of the democratic process

because foreign judges do not have to go through the confirmation hearings

required for appointments to the US Supreme Court521

and also, the unelected

judges may bring into the legal system foreign materials in such a way as to

foreclose any choice by the elected politicians.522

Thirdly, judges can choose

and pick those foreign decisions which suit their needs.523

Fourthly, the

practice undermines sovereignty and might not have been contemplated by the

Framers of the Constitution.524

Some of the objections are apparently predicated on the premise that

foreign laws would have binding effect. In fact, proponents intend foreign

jurisprudence to be no more than persuasive authority.525

The answer to the

sovereignty argument is that the decision whether or not to adopt a foreign law

rests with the domestic courts. It is not uncommon for the legislature and the

executive to align domestic laws with overseas norms.526

There is no reason

why the judicial practice would undermine national sovereignty when similar

520

Rahdert (n 517 above), p 555 on Justice Scalia’s arguments.

521 Ibid, p 558 on John Roberts’s views.

522 Ernest A. Young, “Foreign Law and the Denominator Problem” (2005 ) 119 Harvard. Law.

Review 148, at 164.

523 Rahdert (n 517 above), p 555.

524 Po-Jen Yap, “Transnational Constitutionalism in the United States: Toward a Worldwide

Use of Interpretive Modes of Comparative Reasoning” (2005) 39 University of San

Franscisco of Law Review 999, p 1000.

525 Basil Markesinis and Jorg Fedtke, “The Judge as Comparatist” (2005) 80 Tulane Law

Review 11, at p 153, where the authors state, towards the end of a long and detailed article on

comparative law, that “no advocate of the comparative method has, to our knowledge, ever

suggested [that foreign law be regarded as binding authority] (except in the area of public

international law)”.

526 Yap (n 524 above), p 1006.

150

practice by the political branches would not. Ernest A. Young’s response

would be that the importation of foreign law through the appointed judiciary,

instead of the elected branches, raises questions of democracy, division of

authority within the constitutional structure and institutional competence.527

Those questions are more about the justification of judicial review than about

the use of foreign law.

The persuasiveness of a foreign legal norm depends on the subject

matter and the extent it is shared by various countries. At one end of the

spectrum are constitutional principles, such as human rights, which may have

universal application. Sujit Choudhry refers to “scholars who posit that

constitutional guarantees are cut from a universal cloth, and that all

constitutional courts are engaged in the identification, interpretation, and

application of the same set of principles”.528

Jeremy Waldron, despite his firm

stand against judicial review, defends the use of foreign legal norms which are

referred to as “law of nations”, “general common law”, “federal common law”,

“customary international law” or, what he prefers, “ius gentium” ie “a body of

law purporting to represent what various domestic legal systems share in the

way of common answers to common problem”.529

The ius gentium, which

represents “the accumulated wisdom of the world on rights and justice”,530

is

not to replace any existing municipal law but to guide its elaboration and

development.531

527

Young (n 522 above), pp 161 – 166.

528 Sujit Choudhry, “Globalisation in Search of Justification: Toward a Theory of

Comparative Constitutional Interpretation” (1999) 74 Indiana Law Journal 819, p 833.

529 Jeremy Waldron, “Foreign Law and the Modern Ius Gentium” (2005) 119 Harard Law.

Review 129, p 133.

530 Ibid, p 138.

531 Ibid, p 139.

151

6.2 SINGAPORE

6.2.1 Proper understanding of the “four walls” approach

Singapore adopts a universalist approach in commercial laws.532

“(F)oreign laws are used extensively in private law cases … as well as in

criminal law and administrative law cases.”533

In constitutional adjudications,

the courts have now and then cited the “four walls” approach in the Malaysian

case Government of the State of Kelantan v Government of the Federation of

Malaya & Another” 534

to keep out comparison with foreign case laws. Chan

Hiang Liang & Others v Public Prosecutor535

was the first case in Singapore

where the court, in response to submission about the right to freedom of

religion in the United States, cited Malaysian Chief Justice Thomson’s

statement that “the Constitution is primarily to be interpreted within its own

four walls and not in the light of analogies drawn from other countries such as

Great Britain, the United States of America or Australia”.536

To illustrate that

the case was still good authority, the court stated that “(t)his approach was

recently affirmed by the Malaysian Supreme Court in PP v Pung Chen Choon.

[1994] 1 MLJ 566”.537

532

Eugene Kheng-Boon Tan, “Law and Values in Governance: The Singapore Way” (2000)

30 HKLJ 91, pp 109 – 114 and 118.

533 Victor V Ramraj, “Comparative Constitutional Law in Singapore” (2002) 6 Singapore

Journal of International and Comparative Law 302, p 310.

534 [1963] 1 MLJ 355, at p 358. Cited in Chan Hiang Leng (n 344 above), at p 681D – E.

535 Note 344 above.

536 Note 534 above, p 358. Cited in Chan Hiang Leng (n 344 above), p 681D – E.

537 Note 344 above, p 681E.

152

The persuasive weight of Kelantan v Malaya is dubious.538

Thio finds

it ironical that CJ Thomas was borrowing from the Nigerian case of

Adegbenro v Akintola.539

The irony fades away when one considers that the

Nigerian case was decided by the Privy Council, Malyasia’s final appellant

court on constitutional matters until 1978. In any case, the passage quoted by

CJ Thomson from Adegbenro v Akintola in fact does not support a wholesale

rejection of foreign materials in constitutional interpretation.540

To reject the

argument that the Western Nigerian Constitution was modelled on the

constitutional doctrines in the United Kingdom and “the British sovereign

would not be regarded as acting with constitutional propriety in dismissing a

538

It was a unique case in which the Malaysian court had to decide, at short notice, a matter

requiring a construction of the agreement entered into between a federal government and its

member states – whether under the agreement, the federal government might admit new

member states without consulting the parties to the agreement. The need for an urgent

decision probably prevented the litigants from fully researching and arguing the issue and the

judge from setting out his reasoning in detail. The case was more in the nature of contractual

interpretation with the judge attempting to ascertain the intentions of the contracting parties

from the text of the agreement. The approach, therefore, cannot be transplanted for use

without question in the interpretation of an open-textured bill of rights, which nearly

constitutional cases in Singapore were about.

539 Li-ann Thio, “Beyond the ‘Four Walls’ in an Age of Transnational Judicial Conversations:

Civil Liberties, Rights Theories, and Constitutional Adjudication in Malaysia and Singapore”

( 2006) 19 Columbia Journal of Asian Law 428, p 431.

540 The issue in that case was whether, under the Constitution of Western Nigeria, the

Governor could remove the Premier from office by relying on a letter signed by the majority

of the members of the House of Assembly, when the Assembly had not taken a vote on the

matter. The relevant provision in the Constitution read: “the Governor shall not remove the

Premier from office unless it appears to him that the Premier no longer commands the support

of a majority of the members of the House of Assembly” (section 33(10)(a)). Delivering the

Privy Council’s judgment, Viscount Radcliffe said the “decision turns on the meaning to be

attached to the wording of s 33 of the Constitution of Western Nigeria read, as it should be, in

the context of any other provisions of the constitution that may legitimately influence its

meaning”: Adegbenro v Akintola and Another [1963] 3 All E.R. 544, at 548E.

153

Prime Minister from office without the foundation of an adverse vote on a

major issue in the House of Commons”,541

Viscount Radcliffe said:

“That instrument [the Constitution] stands in its own right; and, while

it may well be useful on occasions to draw on British practice or

doctrine in interpreting a doubtful phrase whose origin can be traced or

to study decisions on the constitutions of Australia or the United States

where federal issues are involved, it is in the end the wording of the

constitution itself that is to be interpreted and applied, and this

wording can never be overridden by the extraneous principles of other

constitutions which are not explicitly incorporated in the formulae that

have been chosen as the frame of this constitution.” (Emphases added)

542

The principle from Adegbenro v Akintola is that the meaning of a

constitutional provision should be ascertained, primarily, by interpreting its

wording in the context of other relevant provisions in the constitution. If the

meaning can thus be ascertained, it “can never be overridden by the

extraneous principles of other constitutions which are not explicitly

incorporated”. The Privy Council did not foreclose references to foreign

materials. When the meaning cannot be found within the constitution itself, it

“may well be useful on occasions” to look to practices and doctrines in other

jurisdictions. The “four walls” approach in Kelantan v Malaya should be

understood as an application of the same principle. Phrases such as “freedom

of speech” and “equality before the law” should surely count as “doubtful

phrases” for the purpose of Viscount Radcliffes’s dictum.

In Chan Hiang Leng, the High Court rejected judicial pronouncements

in the United States on the freedom of religion on the ground that the US

541

Ibid, 550E.

542 Ibid, 551A – B. Cited in Kelantan v Malaya (n 534 above), p 358.

154

Constitution contained the clause “Congress shall make no law respecting an

establishment of religion” whereas a similar “establishment clause” did not

exist in the Constitution of Singapore.543

Similarly, the different wording in

the US Constitution and European Convention on Human Rights, as compared

with that in the Constitution of Singapore, was given as the reason for not

following the US and ECtHR’s decisions on defamation.544

That appears to be

a correct application of the principle in Kelantan v Malaya, which is a logical

extension of the Singapore courts’ textualism and literalism in constitutional

interpretation. This is merely a comment on the form and should not be taken

to mean that the result of the case is correct in substance.

6.2.2 General critiques

Singapore courts did refer to foreign materials frequently both before

and after Chan Hiang Liang. Discussing the end results and reasoning in cases

where a large quantity of foreign materials were referred to, Thio and Ramraj

suggest that the courts have been using such materials selectively to

rationalise judicial deference 545

and cultural relativism.546

In an article

analysing the courts’ pathological use of foreign cases – outright rejection,

dismissing by focusing on superficial or non-significant distinctions and

incorrect reliance – Thiruvengadam labels Singapore judges as National

Formalist, whose traits include “a preference for the interpretive strategies of

textualism and originalism”.547

543

Note 344 above, p 681F – G.

544 J. B. Jeyaratnam v Lee Kuan Yew [1992] 2 SLR 310, p 330

545 “Beyond the ‘Four Walls’” (n 539 above), in particular pp 443 – 446 and 461 – 496.

546 Ibid, 461 – 496 and Ramray (n 533 above), 310 – 332.

547 Arun K Thiruvengadam, “Comparative Law and Constitutional Interpretation in

Singapore”, Chapter 4 in Evolution of a Revolution (n 451 above), at p 128.

155

In support of the suspicion that the Singapore courts are picking and

choosing foreign cases out of judicial deference, it is observed that despite the

frequent references, there have been, among the constitutional cases reported

from 1997 to 2008, only two in which foreign case laws were used to rule

against the government and in favour of the individuals. In Public Prosecutor

v Manogaran s/o R Ramu,548

the Court of Appeal overruled its previous

decision and extended the meaning of “cannabis mixture”. As a result, more

persons would be caught by the offence of possessing or trafficking “cannabis

mixture”. In considering whether the overruling should take prospective or

retrospective effect, the Court took account of the US cases on the doctrine of

prospective overruling and an Indian case which restricted the application of

the doctrine to issues arising under the Constitution. It chose not “to follow

the narrow path marked out” in the Indian case and followed the US ruling.549

Similarly, in Abdul Nasir bin Amer Hamasah v Public Prosecutor, the Court

of Appeal followed Manogaran and referred to case laws in Canada, United

States and United Kingdom to hold that the pronouncement – that “life

imprisonment” should mean “imprisonment of the remainder of life” and not

“imprisonment for 20 years” – should take prospective effect.550

The principle

of nullum crimen nulla poena sine lege (“conduct cannot be punished as

criminal unless some rule of law has already declared conduct of that kind to

be criminal and punishable as such”) is, indeed, as the CA noted, a “basic

principle of criminal jurisprudence”.551

The two cases could have been

resolved on the basis of domestic law. The references to foreign cases amount

to “affirmation” in Yap’s five modes of comparative reasoning.552

548

[1997] 1 SLR 22.

549 Ibid, paras 71 and 73.

550 [1997] 3 SLR 643, paras 43 – 60.

551 Manogaram (n 548 above), para 61.

552 Yap (n 524 above), p 1029.

156

6.2.3 Categories of foreign cases

Thio, Ramraj and Thiruvengadam use the word “foreign” to include all

judicial decisions other than those made by Singapore courts. My general

impression, not backed up by any quantitative analysis, is that in terms of

frequency of references, foreign cases cited by Singapore courts in human

rights cases can be divided into three categories based on jurisdictions: (a)

courts in the United Kingdom, India and Malaysia; (b) other national courts in

the world; and (c) international tribunals.

6.2.3.1 Decisions by Privy Council and supreme courts of India

and Malaysia

The first and most frequent category consists of decisions made by the

Privy Council, House of Lords and supreme courts in India and Malaysia.

This is only natural because the Privy Council was Singapore’s final appellant

court on constitutional cases until 1989 while the constitution of Singapore, in

particular the rights provisions therein, is genealogically linked to those of

India and Malaysia.553

The Privy Council did state, though, that owing to the

difference in language used in the constitutions, the Indian courts’ decisions

on the rights provisions “should be approached with caution as guides to the

interpretation” of the corresponding provisions in the Constitution of

Singapore.554

Ramraj opines that the courts shunned universalist principles except in

two cases: Chng Suan Tze [1988] 1 SLR 132 and J. B. Jeyaretnam v Public

Prosecutor [1990] 1 MLJ 129.555

In Chng Suan Tze, which is also considered

553

“Beyond the ‘Four Walls’” (n 539 above), pp 432 & 433.

554 Ong Ah Chuen v Public Prosecutor (n 443 above), p 669F – H.

555 Ramraj (n 533 above), pp 317 – 321.

157

by two other commentators as the high water mark,556

the Singapore Court of

Appeal replaced the subjective test in Liversidge v Anderson [1942] AC 206

and Lee Mau Seng [1971] 2 MLJ 137 with an objective test which had become

the trend in decisions of the Privy Council and the highest courts in several

Commonwealth countries.557

In fact, it was merely an exercise of stare decisis,

the Privy Council being still Singapore’s final appeallant court then. As

pointed out by the Minister for Law, the CA could have been overruled on

appeal if it had decided otherwise.558

This observation does not support Yap’s

regarding the case as an example of universalism559

even though, it is accepted,

a universal principle was indeed involved. It would be more appropriate to

classify the case – more specifically, the reference to decisions in

Commonwealth countries – as “affirmation” in his categorisation.

In J. B. Jeyaretnam, the appellant was convicted for providing “public

entertainment”, in the form of a public speech, without licence, in

contravention of section 18(1) of the Public Entertainments Act. The judge, of

his own volition, raised the question whether the section contravened art 14 of

the Constitution; referred to the Indian case Indulal v State of Gujarat AIR

1963 G 259 and Privy Council case Arthur Francis v Chief of Police [1973]

AC 761 (both of which were decided after reviewing decisions in the United

States and India and in the case of Arthur Francis, also several other

jurisdictions); and held that the licensing requirement under section 18(1) was

not unconsitutional. Contrary to the principle in Kelantan v Malaya – and J. B.

Jeyaretnam was decided before the “four walls” doctrine was cited by any

Singapore court – the judge held that though the Constitution of Singapore

556

Thio (n 539 above), pp 451 – 455; and Arun K Thiruvengadam, “Comparative Law and

Constitutional Interpretation in Singapore”, Ch 4 in Evolution of a Revolution (n 451 above),

pp 118 – 121.

557 See notes 324 - 327 above and accompanying text for an account of Chng Suan Tze

558 Singapore Parliamentary Reports for sitting on 25 January 1989 (n 332 above), columns

472 – 473.

559 Yap (n 524 above), p 1039.

158

differed in language from the Indian constitution in Indulal and Constitution

of St Christopher, Nevis and Anguilla in Arthur Francis, “the test of

constitutionality applied in both Indulal AIR 1963 G 259 and Arthur Francis

[1973] AC 761 is relevant to determine whether the [Public Entertainments]

Act contravenes art 14(2) [of the Constitution of Singapore]”.560

The judge did

so without explaining what were the differences in wording between the

relevant constitutional provisions and why the differences did not affect the

applicability of the foreign decisions to the situation in Singapore. It is

doubtful whether a licensing requirement for a speech given in the

circumstances of this case would be constitutional in most jurisdictions with

entrenched bills of rights. The case, instead of being regarded as an

application of universal principle, can at best be Choudhry’s “genealogical

interpretation”, given Singapore’s historical link with the Privy Council and

India.

6.2.3.2 Decisions by major common law jurisdictions

The Privy Council also cautioned in Ong Ah Chuan that the US

Supreme Court’s decisions on the US Bill of Rights “are of little use in

construing provisions of the Constitution of Singapore” because the Bill’s

“phraseology is now nearly 200 years old”.561

That brings us to the second

category of decisions occasionally referred to by the Singapore courts, namely

those made by the national courts of jurisdictions with entrenched bills of

rights, mainly the United States, Australia and Canada.

Singapore’s resistance to developments in these jurisdictions is most

noticeable in the laws impinging on the freedom of expression, namely, the

laws on scandalising the court and on defamation. More specifically, the

question of where to strike the right balance between protection of free speech

560

[1990] 1 MLJ 129, at 135.

561 [1981] AC 648, at 669G.

159

and protection of public figures from criticism is an area in which the

Singapore courts regard European and US values to be inapplicable to the

social conditions in Singapore. They have done so without articulating why

this is the case even though Singapore’s political and economic systems both

originated from the west and have been serving the country well.

6.2.3.2.1 Scandalising the court

The rationale of the offence of scandalising the court is to maintain

public confidence in the administration of justice562

but it also has the

unintended effect of protecting the reputation of the judges. In Attorney

General v Wain & Others (No 1), the editor, publisher, printer and distributor

of the Asian Wall Street Journal were prosecuted for the publication of an

article which scandalised the court.563

While the law of contempt in Singapore

was based on English laws, the High Court held that “those [English cases]

from the beginning of the last decade onwards are … of no guidance … on the

law of contempt applicable in Singapore”.564

The Canadian decisions, such as

R v Kopyto 39 CCC 1, could not be regarded as authorities because they were

“based on the Canadian Charter of Rights and Freedoms which has no parallel

in Singapore”.565

Decisions in the Commonwealth jurisdictions were of no

562

Attorney-General v Hertzberg Daniel and Others [2009] 1 SLR 1103, para 20 which refers

to Phang JA’s view in Pertamina Energy Trading Ltd v Karaha Bodas Co LLC and Others

[2007] 2 SLR 518, para 22.

563 The article reported the comments made in New York by Peter Kann, the president of Dow

Jones & Co., the owner of Far Eastern Economic Review, about a defamation case in which

the court awarded aggravated damages against the Review in favour of Singapore’s Prime

Minister Lee Kuan Yew. According to the article, Kann said what the Review had published

was “an essentially accurate portrayal of highly newsworthy events” and “(s)oley because it

was read to be critical of Mr. Lee, however, it has resulted in this unwarranted determination

against the Review”: AG v Wain (No 1) [1991] 1 SLR 383, p 387.

564 Ibid, p 393.

565 Ibid. Kopyto was decided by the Ontario Court of Appeal. While the Court unanimously

allowed the appeal by the defendant in the contempt proceedings, the judges were divided as

160

authority either because they turned on the facts of each case and the judges

were “concerned with the social, political, industrial and other economic

conditions prevailing in their respective societies at the particular time”.566

The socio-political and economic situations in Singapore were markedly

different from those in other countries. However, the only difference

mentioned in the judgment was that there was no jury trial in Singapore.567

Thio argues that the difference means the judges in Singapore wield more

powers and therefore need greater accountability.568

“The Canadian approach

is more protective of free speech and, indeed, displays both judicial

confidence in being able to withstand hardy criticism and faith in the public’s

ability to discern truth from falsehood. To deny the applicability of this

reasoning would be to suggest that the Singapore public was undiscerning and

that judicial reputation rests on tenuous foundations!”569

That Singapore judges decide both questions of fact and law was again

mentioned in Attorney General v Chee Soon Juan as a reason why “any

attacks on a judge’s impartiality must be ‘firmly dealt with’ ”.570

Another

reason based on geography was added. While holding that Commonwealth

case law and “recent jurisprudence from the UK had to be treated with

considerable caution because of the differing legislation in those countries”,571

the judge quoted from a Privy Council’s case on contempt in Mauritius that

to the circumstances in which the law of contempt could be consistent with the freedom of

expression guaranteed by s 2(b) of the Canadian Charter. The only consensus in the majority

view was that a requirement of the offence was that the impugned speech must pose a clear

and present or imminent danger to the administration of justice: C. J. Miller, Contempt of

Court (Oxford: Oxford University Press, 3rd

edn, 2000), para 12.52.

566 AG v Wain (No 1) (n 563 above), p 393.

567 Ibid, p 394.

568 “Beyond the ‘four walls’ ” (n 539 above), p 470.

569 Ibid, p 471.

570 [2006] 2 SLR 650, para 26.

571 Ibid, para 23.

161

“(t)he need for the offence of scandalising the court on a small island is

greater”.572

In Ahnee the Privy Council went on, immediately after the quoted

statement, as follows:

“Moreover, it must be borne in mind that the offence is narrowly

defined. … There must be a real risk of undermining public confidence

in the administration of justice. The field of application of the offence

is also narrowed by the need in a democratic society for public

scrutiny of the conduct of judges, and for the right of citizens to

comment on matters of public concern.”573

The law of contempt in Singapore certainly does not follow the narrow

definition and application mentioned in Ahnee. In AG v Chee Soon Juan, the

judge described Singapore’s law in the following terms:

“Liability for scandalising the court does not depend on proof that the

allegedly contemptuous publication creates a ‘real risk’ of prejudicing

the administration of justice; it is sufficient to prove that the words

complained of have the ‘inherent tendency to interfere with the

administration of justice’ (per Sinnathuray J in Wain’s case at 397

[50]). In addition, the offence is also one of strict liability; the right to

fair criticism is exceeded and a contempt of court is committed so long

as the statement in question impugns the integrity and impartiality of

the court, even if it is not so intended (see AG v Lingle [1995] 1 SLR

696 at 701, [13]).”574

572

Gilbert Ahnee and Others v Director of Public Prosecutions [1999] 2 AC 294, at 306A.

Quoted in AG v Chee Soon Juan (n 570 above), para 25.

573 Ahnee (n 572 above), p 306B – C.

574 Note 570 above, para 31.

162

Thus framed, the offence simply does not take account of “the need in a

democratic society for the public scrutiny of the conduct of judges, and for the

right of citizens to comment on matters of public concern”.575

6.2.3.2.2 Defamation

The same one-sidedness in protecting the reputation of persons

exercising public powers exists in the law of defamation. A commentator

writing in 2006 observes that “no PAP leader has ever lost a defamation action

against an opposition leader in the Singapore courts, and no foreign publisher

has ever successfully defended a defamation action brought by a Singapore

political leader in the Singapore courts”.576

The Singapore judiciary has

adhered to its version of common law on defamation despite developments in

other jurisdictions towards enhancing freedom in the debate of political and

public affairs. Incidentally, “the reputation of others” – an interest for

“respect” under the ICCPR 577

and “protection” under the ECHR 578

– is not

specifically mentioned in Part IV of the Constitution of Singapore.579

The common laws on defamation in the major common law

jurisdictions include three basic principles which are against the defendants

and not conducive to free speech. First, a defamatory statement is presumed to

575

Note 573 above.

576 Tey Tsun Hang, “Defamation and Political Speech”, paper delivered at the HKU-NUS

Symposium on The Common Law in the Asian Century, 11-12 December 2006, Hong Kong,

pp 5 – 6. See also Tsun Hang Tey, “Singapore’s Jurisprudence of Political Defamation and Its

Triple-whammy Impact on Political Speech” [2008] Public Law 452, pp 452 – 453.

577 Art 19(3) of ICCPR.

578 Art 10(2) of ECHR.

579 The Constitution provides, however, that “Parliament may by law impose – … restrictions

[on the right to freedom of expression] designed … to protect against contempt of court,

defamation …”: art 14(2)(a).

163

be false.580

Secondly, liability is strict and a defendant is liable regardless of

his state of mind when publishing the statement. Thirdly, the plaintiff in a libel

case is presumed to have suffered damages.581

In respect of the first two

principles, the imbalance is redressed by the defences of justification, fair

comment, absolute privilege and qualified privilege. The qualified privilege is

available where the defendant has a duty (whether legal, social or moral) to

publish the information and the recipients have a corresponding interest to

receive it (“the reciprocity principle”).582

The defendant bears the burden of

proving the facts and circumstances which give rise to the privilege. The claim

of privilege can be defeated by proof of “malice”, eg the defendant lacked an

“honest belief” in the untrue defamatory statement 583

or “the defendant

misused the occasion for some purpose other than that for which the privilege

is accorded by law”.584

In recognition of the importance of the free debates on

political and public affairs in a democratic society, courts in the United

States,585

Europe,586

Australia,587

New Zealand588

and the United Kingdom589

580

Dario Milo, Defamation and Freedom of Speech (Oxford; New York: Oxford University

Press, 2008), pp 10 – 12 and Ch V. See also Patrick Milmo, W.V.H. Rogers, Godwin Busuttil,

Richard Parkes and Clive Walker (eds), Gatley on Libel and Slander (London: Thomson

Reuters, 11th

edn, 2008), para 11.3.

581 Milo (n 580 above), pp 10 – 12.

582 Gatley on Libel and Slander (n 580 above), paras 1.10, 14.1 and 14.4 – 14.8.

583 Horrocks v Lowe [1975] AC 135, 150B, per Lord Diplock.

584 Ibid, 150F. According to Milo (n 580 above), p 187 note 11, the Australian law largely

follows English cases in defining “malice”.

585 The US Supreme Court decided in New York Times v Sullivan that the requirement for

defendants to prove truth of defamatory statements would deter would-be critics from

commenting on public conduct since a factual statement, even if true, might be difficult to

prove. In the light of the First Amendment, the Court pronounced “a federal rule that prohibits

a public official from recovering damages for a defamatory falsehood relating to his official

conduct unless he proves that the statement was made with ‘actual malice’ – that is, with

knowledge that it was false or with reckless disregard of whether it was false or not”: (1964)

376 US 254, at 279 – 280

586 The European Court of Human Right held in Lingus v Austria (1986) 8 E.H.R.R. 407 that a

politician should expect to be subject to closer scrutiny by the media. “The limits of

164

acceptable criticism are accordingly wider as regards a politician as such than as regards a

private individual ….” (Para 42). The ECtHR probably had the common defence of qualified

privilege in mind when it said that the press had the task of communicating not just fact, but

also opinions interpreting the facts, and the public had the right to receive such information

(para 41). Opinions were value judgments incapable of being proved. Article 111 of the

Austrian Criminal Code which punished Mr. Lingus, a journalist, unless he could prove the

truth of his defamatory opinions was held to violate Art 10 of the European Convention on

Human Rights (paras 46 & 47).

587 In Lange v Australian Broadcasting Corporation (1997) 145 ALR 96, the High Court of

Australia held that the law of defamation would impose an undue burden on the freedom of

communication under the Commonwealth Constitution of Australia if it provided “no

appropriate defence for a person who mistakenly but honestly publishes government or

political matter to a large audience” (p 114, lines 18 – 19). To render consistency with the

Constitution, the Court expanded the defence of qualified privilege by declaring that “each

member of the Australian community has an interest in disseminating and receiving

information, opinions and arguments concerning government and political matters that affect

the people of Australia. The duty to disseminate such information is simply the correlative of

the interest in receiving it” (p 115, lines 34 – 38). Mindful that the extension might result in

inadequate protection of the reputation of the defamed, the Court required defendants who

invoked the extended category of qualified privilege to prove that their conduct was

reasonable in all circumstances of the case. Furthermore, the defence would be defeated if the

plaintiff could prove that the publication of the defamatory statement was actuated by ill will

or improper motive (p 117, lines 38 – 46). Given the nature of politics, “the motive of causing

political damage to the plaintiff or his or her party cannot be regarded as improper. Nor can

the vigour of an attack or the pungency of a defamatory statement, without more, discharge

the plaintiff’s onus of proof of this issue” (p 118, lines 16 – 19).

588 Shortly after Lange v ABC (n 587 above), the New Zealand Court of Appeal also reviewed

the defence of qualified privilege. After an extensive survey of the development of the

defence in the common law world, it came to the conclusion that the defence applied to

“political statements which are published generally”, ie “generally-published statements

which directly concern the functioning of representative and responsible government,

including statements about the performance or possible future performance of specific

individuals in elected public office”: Lange v Atkinson [1998] 3 NZLR 424, at 468. This

amounted to the same effect as the extended category of qualified privilege in Lange v ABC,

except that the New Zealand Court of Appeal decided not to introduce the reasonableness of

conduct test. Tipping J gave three reasons for not introducing the test: “No other occasion of

qualified privilege has such a requirement; there would be difficulties in drawing the line as to

165

have, during the 20th

century, reversed the onus of proof or expanded qualified

privilege in cases where the plaintiffs are politicians or government officials.

what occasions of qualified privilege were and were not covered by reasonableness

requirement; and however one dressed it up, we would thereby be creating essentially a new

defence which is the prerogative of Parliament and not a bona fide development of the

common law defence of qualified privilege” (pp 474 – 475). On appeal, the Privy Council

remitted the case back to the NZCA for reconsideration in the light of the House of Lords’

judgment in Reynolds v Times Newspapers Ltd (n 589 below). The NZCA decided that since

the constitutional structure, relevant statute law and local political and social conditions in

New Zealand were different from those in the United Kingdom and Australia – and in

particular, the press in NZ was tame and had a relatively small circulation and section 19 of

the Defamation Act 1992 in New Zealand prevented misuse of qualified privilege – its earlier

decision was appropriate: Lange v Atkinson [2000] 3 NZLR 385, pp 395 – 405. The Court,

though, added another point which it said was implicit in its earlier discussion, and that is, “to

attract privilege the statement must be published on a qualifying occasion” (para 41). It did

not explain, however, what “qualifying occasion” meant in relation to “political statement

which are published generally”. Presumably, it would only exclude private communications

on an occasion which does not meet the reciprocity principle.

589 In Reynolds v Times Newspapers Ltd [2001] 2 AC 127, the House of Lords decided against

affording qualified privilege to a generic category of “political information”. Such a privilege

would not give sufficient protection to reputation (p 204G per Lord Nicholls); “it would be

unsound in principle to distinguish political discussion from discussion of other matters of

serious public concern” (p 204H per Lord Nicholls); the privilege might result in plaintiffs

being allowed to access confidential source of information by way of discovery (p 210G to H

per Lord Steyn and p 240B per Lord Hobhouse); it was at variance with the ECtHR’s

jurisprudence about conducting a balancing exercise based on the facts in individual cases (pp

210H – 211C per Lord Steyn); and the category of “political information” privilege could not

be described with precision (pp 230B – 235E per Lord Hope). Instead, the HL considered that

the existing defence of qualified privilege was elastic enough such that a case by case

approach should be adopted taking into account various factors such as the seriousness of the

charge, the nature of the information and urgency of the matter (pp 204H – 205F per Lord

Nicholls, p 213C per Lord Steyn and p 240C per Lord Hobhouse). “The press discharges vital

functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a

publication was not in the public interest and, therefore, the public had no right to know,

especially when the information is in the field of political discussion. Any lingering doubts

should be resolved in favour of publication.” (Page 205F – G per Lord Nicholls).

166

In the leading case of Jeyaratnam Joshua Benjamin v Lee Kuan Yew

[1992] 2 SLR 310, the Court of Appeal declined to follow Sullivan 590

and

Lingus. 591

The reasons were first, the wording of the relevant provisions in

the US Constitution and European Convention on Human Rights were

different from those in the Constitution of Singapore.592

More specifically,

Singapore’s constitution provided for freedom of expression to be restricted

by the law on defamation.593

Secondly, contrary to the premises in Sullivan

and Lingus, politicians and government officials in Singapore were entitled to

the same protection of reputation as other people.594

Thirdly, Sullivan opened

the gate too widely and might deter sensitive and honourable persons from

seeking public office.595

The first and second reasons evade the argument that

the law should develop in order to give greater latitude to political speeches.

As regards the different wording in constitutional provisions, comparative

constitutionalism could never be practised if such difference were in itself a

sufficient reason for refusing any foreign law. The US Constitution and ECHR

do permit freedom of expression to be restricted by law but “the law” does not

mean, as interpreted by the Singapore courts, just any enacted law or common

law. The third reason – at least the first part – is probably shared by the

Australian High Court and the House of Lords, as evidenced from their

reasoning in Lange v Australia Broadcasting Corporation596

and Reynolds v

Times Newspapers Ltd.597

The High Court of Singapore discussed the developments of qualified

privilege in New Zealand, Australia and the United Kingdom in Lee Hsien

590

Note 585 above.

591 Note 586 above.

592 [1992] 2 SLR 310, p 330.

593 Ibid, pp 330 – 332.

594 Ibid, p 332.

595 Ibid, p 333.

596 Note 587 above.

597 Note 589 above.

167

Loong v Singapore Democratic Party. 598

As the CA had rejected Lingus on

the ground that the wording of the ECHR differed from that of the

Constitution of Singapore, Ang J refused to follow Reynolds because its

decision was influenced by the ECHR. 599

With regard to Lange v ABC and

Lange v Atkinson, she noted that the approach of granting special privilege to

information on political and government matters was rejected by Lord

Nicholls in Reynolds.600

Ang J’s reasoning, justifiably, did not impress Woo Bih Li J. The latter

let in a breathe of fresh air when he attempted to crack the four walls with his

statement, in Lee Hsien Loong v Review Publishing Co. Ltd, that:

“It is only necessary for me to say that Reynolds was influenced by Art

10 [of the European Convention on Human Rights]. It matters not how

great that influence was as that influence in itself does not necessarily

mean that Reynolds should not apply in Singapore. Likewise for the

point about legislation and/or circumstances prevailing in Australia or

New Zealand.”601

In the end, however, he held there was no general media privilege as he was

“bound by the doctrine of precedence to adopt the same position as Ang J

which was endorsed by the Court of Appeal”.602

598

[2007] 1 SLR 675.

599 Ibid, para 76.

600 Ibid, para 77.

601 [2009] 1 SLR 177, para 211.

602 Ibid, para 221.

168

6.2.3.3 Decisions by international tribunals

The third category of foreign cases consists of the jurisprudence of

international tribunals. The UN Human Rights Committee and the European

Court of Human Rights are two rich sources of authorities for human rights

adjudications. Yet, it appears that Singapore courts never refer to any decision

by the HRC.603

The courts mentioned the ECtHR’s decisions, on most

occasions, only indirectly – when referring to UK or other common law

courts’ rulings which were based on or influenced by the ECtHR’s

jurisprudence. Direct references to the ECtHR’s decisions had been made only

in several cases concerning the freedom of speech. In defamation, the Court of

Appeal held that it could not follow the ECtHR’s decisions because “(t)he

terms of our art 14 of our Constitution differs materially from … art 10 of the

European Convention on Human Rights”.604

The resistance is more distinct

when it comes to the law on contempt of court. The High Court held that

though Singapore’s law on contempt was derived from the common law of

England, English cases from the beginning of the 1980s became of no

guidance because of the changes brought about by the Contempt of Court Act

1981 and because the United Kingdom was now bound by the decisions of the

European Court of Human Rights.605

The Singapore courts’ resistance to the ECtHR’s decisions – and

consequently, also the human rights decisions made by the English courts

after the Human Rights Act 1998 – was set out clearly in Chee Siok Chin v

Minister for Home Affairs .606

After reviewing a series of English cases

concerning the right to public demonstration, the High Court observed that

603

Based on a Lexis search of the Singapore Law Reports conducted on 11 September 2009

for “Human Rights Committee”.

604 J. B. Jeyaratnam v Lee Kuan Yew [1992] 2 SLR 310, p 330.

605 Attorney General v Wain & Others (No 1) [1991] 1 SLR 383 at 393

606 [2006] 1 SLR 582.

169

“(i)t is obvious that a distinct and decisive legislative and judicial

transformation has taken place in England over the last decade, in particular,

on the resolution and/or adjudication of public order issues”.607

Turning

specifically to the ECtHR, the court said “the terms and tenor of Art 10(2) of

the … Convention … are very different from Art 14 of the Constitution”;608

the margin of appreciation “restricts different members of the European Union

from straying too widely from perceived common standards in interpreting

and applying legislation involving human rights”;609

and proportionality, a

more exacting requirement than reasonableness, was not part of the law of

Singapore.610

The relevant paragraphs in the judgment amount to an

elaboration of the government’s reason in 1989 for abolishing appeals to the

Privy Council. The Minister for Law who introduced the constitutional

amendment said then that “all these developments connected with the

European Community are contrary to Singapore's experience and irrelevant to

our circumstances”. 611

6.3 HONG KONG

6.3.1 Authority for use of foreign precedents

While Singapore courts emphasise local conditions in resisting foreign

judicial decisions in constitutional adjudication, Hong Kong courts place

much reliance on foreign materials. In R v Sin Yau-ming,612

the first

constitutional review case reaching the Hong Kong Court of Appeal, the court

607

Ibid, para 84.

608 Ibid, para 86.

609 Ibid, para 86

610 Ibid, para 87.

611 Singapore Parliamentary Reports for sitting on 25 January 1989 (n 332 above), column

472.

612 (1991) 1 HKPLR 88

170

sought guidance from the decisions of the UN Human Rights Committee, the

ECtHR and national courts of the United Kingdom, United States and Canada.

The approach was endorsed and elaborated upon by the Privy Council in

Attorney General v Lee Kwong-kut:

“Reference was also made in the judgments in the Sin Yau-ming case

to the decisions in other common law jurisdictions, including the

United States and Canada, and of the European Court of Human

Rights in relation to the European Convention on Human Rights. Such

decisions can give valuable guidance as to the proper approach to the

interpretation of the Hong Kong Bill, particularly where the decisions

in the other jurisdictions are in relation to an article in the same or

substantially the same terms as that contained in the equivalent

provision of the Hong Kong Bill. However, it must not be forgotten

that decisions in other jurisdictions are persuasive and not binding

authority and that the situation in those jurisdictions may not

necessarily be identical to that in Hong Kong. This is particularly true

in the case of decisions of the European Court, … The European Court

is not concerned directly with the validity of domestic legislation but

whether, in relation to a particular complaint, a State has in its

domestic jurisdiction infringed the rights of a complainant under the

European Convention; whereas, in the case of the Hong Kong Bill, the

Hong Kong Courts, and on appeal the Board, have to determine the

validity of domestic legislation having regard to the entrenched

provisions of the Hong Kong Bill.”613

After 1 July 1997, the practice receives constitutional backing by way

of BL 84, which provides that the courts “may refer to precedents of other

common law jurisdictions”. Yet, the practice has been so firmly established

that probably no judge finds it necessary to cite any authority. I shall mention

613

(1993) 3 HKPLR 72, p 90 line 38 to p 91, line 12, per Lord Woolf.

171

just two cases to illustrate how the courts have used foreign materials,

including but not confined to judicial decisions, in finding the solutions to

novel, constitutional issues.

6.3.2 Examples of use of foreign materials

6.3.2.1 Scandalising the court

The Oriental Daily News, which has the largest circulation among

newspapers in Hong Kong, ran a series of articles for several days which

made “abusive, offensive and scurrilous attacks with … racial slurs”614

against

Obscene Articles Tribunal members and two judges and in addition, mounted

a paparazzi operation on one of the judges. As a result, it was prosecuted for

scandalising the court. In both the trial and the appeal, the defence relied on

the Canadian case R v Kopyto615

to argue that the offence of scandalising the

court was inconsistent with the freedom of expression guaranteed by the

ICCPR. Like Singapore, Hong Kong judges decided not to follow Kopyto.

However, while the former did so on the bland assertions about differences in

the wording of constitutional provisions and in social circumstances, the latter

gave very detailed reasons, which included why the English and New Zealand

decisions, though made without any constraint posed by a bill of rights, were

preferred.

The offence had never been judicially considered in Hong Kong and

there were widely different approaches in other common law jurisdictions.616

614

Secretary for Justice v The Oriental Press Group Ltd & Others [1998] 2 HKLRD 123, p

140H.

615 (1988) 47 DLR (4

th) 213. Also, see n 565 above.

616 S for J v Oriental (n 614 above), pp 163J – 164A.

172

Having regard to the English and New Zealand authorities, the trial judges617

formulated the ingredients of the offence. On the actus reus, they arrived at

the following test: “was there a real risk that the acts complained of would

undermine confidence in the due administration of justice in the minds of at

least some of the persons who were likely to become aware of the publication

or acts complained of?”618

“The phrase ‘a real risk’ should be given its

ordinary meaning. It means a good chance as opposed to a mere possibility.

Whether such a risk has been established will depend on the circumstances of

each case including the nature of the act done or the language of the

publication used. It will also depend on whether there is a pending action or

whether the act or publication is targeted at a particular case or at the court or

judge generally.”619

On the question whether the offence was necessary for the

maintenance of public confidence in the administration of justice, the court

commented on three points coming out of selected passages in Kopyto. First, it

disagreed with the view that “a modern advanced society is too sophisticated

to be taken by invective aimed at the judiciary”.620

In the instant case, readers’

letters which the newspaper claimed to have received after the publication of

the articles complained of showed a significant risk of public confidence in

the administration of justice having been undermined. Secondly, it disagreed

with the view that “(t)he judges should not be seen to be suppressing criticism

of themselves, however vitriolic or extreme that criticism may be”.621

In a trial

for scandalising the court, judges were protecting the system of administration

of justice and not themselves personally. Thirdly, it also disagreed with the

617

The Chief Justice directed, under s 32(3) of the High Court Ordinance (Cap 4), that the

case be heard by two High Court judges instead of one, as is normally the case: S for J v

Oriental (n 614 above), p 172F.

618 Ibid, p 152B – C.

619 Ibid, p 151I – J.

620 Ibid, p 162I.

621 Ibid, p 163A.

173

view that the law of defamation would be sufficient to protect the judges. The

offence of scandalising the court was necessary in order to put a quick stop to

any act which posed a real risk of undermining public confidence in the

administration of justice. That was why the proceedings for the offence was a

summary process. Furthermore, individual judges could not institute

defamation action if the attack was directed at the judiciary as a whole.622

The

court already had the proportionality test in mind when it formulated the

ingredients of the offence. In particular, the mens rea – an intention to

undermine public confidence in the administration of justice was not an

ingredient of the offence – was compensated by the actus reus, which required

a real risk to be established.623

Kopyto was rejected with more reasons in the appeal proceedings. The

defendant’s counsel asked why, given the similarity of the Canadian Charter

of Rights and Freedoms with the relevant provisions in Hong Kong, what was

unconstitutional in Canada could be necessary in Hong Kong. In a reply which

reminds one of Choudhry’s genealogical interpretation and Tushnet’s

expressivism or Yap’s exposition, Mortimer VP said “(t)he answer … lies

partly in the Commonwealth tradition and partly in what is necessary in the

particular circumstances of Hong Kong”. Kopyto, he said, was influenced by

the American jurisprudence and its “clear and present danger” test, such that

the offence of contempt could only be committed if there was interference

with the fair trial of present or pending proceedings. In contrast, the

Commonwealth tradition treated the administration of justice as a continuing

process and protected all the factors which contributed to such a process.624

The “real risk” test in the Commonwealth tradition – derived from Solicitor

General v Radio Avon Ltd [1978] 1 NZLR 225 at p 239 – was, even though

the case was decided before New Zealand’s Bill of Rights, not of practical

622

Ibid, p 163E – H.

623 Ibid, p 164A – C.

624 Wong Yeung Ng v Secretary for Justice [1999] 2 HKLRD 293, p 312A – C.

174

difference from the minority views of Dubin and Brooke JJA in Kopyto that

“(w)hat must be shown is that, by reason of the statement made by the

appellant, there was a real risk that the administration of justice would be

interfered with”.625

As regards the local circumstances, it was true that Hong

Kong’s legal system was held in high repute. However, court proceedings

were widely publicised and in view of the relatively small size of the legal

system here, many judges were known by name in reporting. “Sustained

scurrilous, abusive attacks made in bad faith, or conduct which challenges the

authority of the court, are not susceptible to reasoned answer.”626

Such attacks,

if they went unchecked, would undermine the ordinary citizens’ confidence in

the administration of justice.627

Mayo JA countered Kopyto with the ECtHR’s

decision in The Sunday Times v United Kingdom [1980] 2 EHRR 245, which

showed that the newspapers’ freedom of expression could be restricted, on

ground of contempt of court, in certain circumstances.628

Leong JA’s rejection of Kopyto was less forceful. He held that the

Canadian case “was decided in the light of the Canadian Charter according to

the Canadian social circumstances and therefore decided against a background

totally different from that of Hong Kong”.629

He did not elaborate on the

differences. Instead, he referred to the article complained of in Kopyto as

compared with those in the instant case, before ending with a remark which

should be true of all foreign cases: “In any case, the Canadian approach

should be treated as providing guidance and it cannot be said that the Judges

were not justified in refusing to follow R v Kopyto”.630

625

R v Kopyto (1988) 47 DLR (4th

) 213, p 290. Quoted in Wong Yeung Ng (n 624 above), p

312F.

626 Wong Yeung Ng (n 624 above), p 313B.

627 Ibid, p 313C – F.

628 Ibid, p 320E.

629 Ibid, p 329D.

630 Ibid, p 329F.

175

6.3.2.2 “Flag case”

About four months after the NPCSC’s Interpretation of BL 22(4) and

24(2)(3), the “flag case” – in which two activists were prosecuted for the

offences of desecrating the national flag and the HKSAR flag, in

contravention of the National Flag and National Emblem Ordinance and the

Regional Flag and Regional Emblem Ordinance respectively – reached the

Court of Final Appeal. At issue was whether the relevant criminalising

provisions in the ordinances were consistent with the freedom of expression

guaranteed by the Basic Law. The Court was in a no-win situation. The former

ordinance was enacted after the NPCSC had decided, under BL 18(3), to

apply in Hong Kong the PRC Law on the National Flag. If the CFA upheld its

constitutionality, it would be susceptible to criticisms about backing down to

the Central Government to the detriment of rights and freedoms in Hong Kong.

A contrary verdict would result in backlash from the Mainland officials and

scholars and local “patriots” about the Court, again, acting out of turn; the

possibility of another re-interpretation was there.

Under article 19 of the ICCPR, the freedom of expression may be

restricted only if the restriction is necessary to achieve the specified objectives,

including “the protection of … public order (ordre public)”. Having regard to

the Siracusa Principles agreed to by a group of experts in 1984 and an

advisory opinion issued by the Inter-American Court of Human Rights in

1986, the CFA reached the view that the concept of ordre public could not be

precisely defined but included “what is necessary for the protection of the

general welfare or for the interests of the collectivity as a whole”.631

In

considering whether the criminalisation of flag desecration was “necessary”

for the protection of ordre public, the Court performed the proportionality test.

The test originated from the German Federal Court; influenced the European

631

HKSAR v Ng Kung Siu & Another [1999] 3 HKLRD 907, at 925A.

176

Court of Justice; spread to the Member States of the European Union;632

had

implicitly been incorporated into the limitation clauses in the European

Convention on Human Rights, the American Convention on Human Rights

and the ICCPR; and was anchored in general international law.633

The test was

to be conducted with the Court according due weight to the view of the

HKSAR’s legislature that it is appropriate to enact the two ordinances. On one

side of the balance, four of the five judges regarded the criminalisation to be

“only a limited restriction on the right to the freedom of expression”.634

On

the other side, the national and regional flags were unique symbols of national

unity and regional integrity. Their protection played an important part in the

attainment of the “one country, two systems” at the early stage of China’s

resumption of the sovereignty over Hong Kong. Hence, the Court concluded

that “the test of necessity is satisfied”.635

In support, the Court noted, without

naming the countries concerned, that “a number of democratic nations which

have ratified the ICCPR have enacted legislation which protects the national

flag by criminalising desecration or similar acts punishable by

imprisonment”.636

What would be more interesting for the purpose of our present

discussion is the concurring judgment by Bokhary PJ, in which he referred to

a host of foreign decisions (in the United States, Italy and Germany) and

diversity of practices. From them he identified two approaches. One was to

tolerate flag desecration as a form of expression though there were more

effective ways, than such desecration, to make the same point. The other

approach was to protect the national or regional flag from desecration for

632

“The Judge as Comparatist” (n 525 above), p 80.

633 Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of

Proportionality in the Jurisprudence of the ECHR (Antwerp; Oxford; New York: Intersentia,

2002), p 190.

634 Ng Kung Siu (n 631 above), p 926C per Li CJ.

635 Ibid.

636 Ibid, p 926F per Li CJ.

177

reason of reverence because people could still put their point across in many

other ways. “Both [approaches] accord respect to the national flags and

emblems. And both recognise that freedom of expression is not confined only

to what is expressed but extends also to how it is expressed.”637

The question

of which approach to adopt was one for the legislature under the separation of

powers. The legislature, through enacting the ordinances under discussion,

had gone for the second approach. The court’s role was to examine whether it

was possible to protect the flags and emblems while maintaining the freedom

of expression. In conclusion, Bokhary stated:

“This is possible if its flag and emblem protection laws are specific, do

not affect the substance of expression, and touch upon the mode of

expression only to the extent of keeping flags and emblems impartially

beyond politics and strife. In my view, our laws protecting the national

and regional flags and emblems from public and wilful desecration

meet such criteria.”638

Bokhary PJ’s judgment – more specifically, his deducing from foreign

materials the two different approaches towards flag desecration – is regarded

by Yap as an example of functionalism.639

Yap does not discuss Li CJ’s

majority judgment presumably because it makes few explicit references to

overseas materials. The principle of proportionality is now such an essential

feature of human rights adjudications across the world that its foreign origin –

foreign to Hong Kong and also, to its former source of common law the

United Kingdom – can easily be overlooked. The universal principle was used

in Ng Kung Siu to diagnose and solve the problem of how to determine

whether the restriction was “necessary … for the protection of … ordre

public” (“diagnosis” and “universalism”). The Siracusa Principles and

637

Ibid, p 932D – E, per Bokhary PJ.

638 Ibid, p 933B – C.

639 Yap (n 524 above), p 1037.

178

decision of the Inter-American Human Rights Court threw light on what ordre

public meant (“functionalism”). The special situation in Hong Kong was fed

into the balancing exercise (“exposition”) while the reference to ICCPR

countries which punished flag desecration is an example of “affirmation”. The

CFA did attract criticisms because of the “flag case”. This will be discussed in

the section below concerning the proportionality test.

6.4 Comparison

Andrew Phang Boon Leong, a legal scholar now a Judge of Appeal,

explains the concept of legal autochthony in the following terms:

“Simply put, legal autochthony is related to the development of an

indigenous (here, Singapore) legal system that is sensitive to (and

reflective of) the needs and circumstances of the nation concerned and

its people. In other words, the legal system has, in the final analysis,

uniquely local roots which are run deep in local soil and which,

consequently, produce a uniquely local plant, bearing local fruit.

Taking the metaphor further, whilst acknowledging that the initial seed

was English in origin, the present mission is to cultivate the soil and

surrounding circumstances in order that the legal tree which grows is

wholly in tune with the local context. On occasion at least, some

pruning and even engrafting may be necessary. Such pruning already

takes place, it is suggested, through the application of the concepts of

suitability and modification. Engrafting can take place with either

local or even foreign legal stems.” 640

(Emphases added)

He also opines that “in the context of a country like Singapore where

its only substantive resources comprise people and its focus is on commerce

640

Andrew Phang Boon Leong, From Foundation to Legacy: The Second Charter of Justice

(Singapore: Singapore Academy of Law, 2006), p 52.

179

as well as the provision of financial services”, “law in general and legal

scholarship in particular must reflect the ever-increasing interconnectedness of

nations and their respective legal system”.641

As an expert on private law,

Phang JA has the commercial law particularly in mind with those words. They

are, however, equally applicable to human rights. The “ever-increasing

interconnectedness” is brought about not just by economic inter-dependence

but also, by sharing similar moral values. Yet, in constitutional rights

adjudications, no occasional engrafting has taken place. Under Singapore’s

version of the four walls doctrine in Kelantan v Malaya, the judges are

expressivists practising Yap’s exposition, except that there is no genuine

inquiry into the question of whether – and if so, how – Singapore’s conditions

are different from other jurisdictions. Choudhry’s dialogical interpretation,

aimed at a deeper understanding of – and consequently improvement to –

Singapore’s own legal system is nowhere to be seen. Phang JA’s extra-judicial

writing and Woo J’s dictum,642

however, inspire hope that perhaps changes

are on the horizon.

In Hong Kong courts could have adopted in entirety Phang JA’s words

quoted in the two preceding paragraphs. The engrafting and “ever-increasing

interconnectedness of nations” advocated by him are very much the order of

the day. The reasons for the different treatments of “foreign legal stems” in

the two places can be explained by the difference in soil. The Singapore

constitutional tree has “uniquely local roots … run deep” in the Shared Values

whereas the Hong Kong soil is reflected in the HKSAR Government’s slogan

of “Hong Kong, a world city”. The Hong Kong constitutional tree has grown

to its present size through the engrafting of “foreign legal stems”, with

nutrition from the local – yet cosmopolitan – rights-commitment soil.

641

Ibid, 62.

642 See n 601 above and accompanying text.

180

CHAPTER 7 –

PRINCIPLES ON RESTRICTION OF

ENTRENCHED RIGHTS:

“LAW”, PROPORTIONALITY

AND ONUS OF PROOF

7.1 ECtHR JURISPRUDENCE

Few rights are absolute. In the ICCPR and ECHR, for example, only

specified rights, notably the right not to be subject to torture and the right not

to be held in slavery or servitude, are non-derogable even in time of war and

emergency.643

In normal times, most rights may be restricted by “law”.

Express provisions to that effect are contained in Part IV of the Constitution of

Singapore and in the Basic Law as well as those ICCPR provisions applicable

to Hong Kong pursuant to BL 39(1). The differences in constitutional

interpretation between Singapore and Hong Kong boil down to three aspects:

What is the meaning of “law”? What is the test to determine constitutionality?

Who bears the burden of proving the constitutionality of the “law” in question?

In the jurisprudence of the ECtHR, for any limitation of the rights

protected by the ECHR to be acceptable, three standards have to be met. First,

the limitation must be “in accordance with law” or “prescribed by law”.644

Second, it must be for the purpose of protecting one or more of the legitimate

aims which are exhaustively specified in the relevant articles.645

Even where 643

ICCPR art 4(2) and ECHR art 15(2).

644 Yutaka Arai, “The Systems of Restrictions”, Ch 5 in Pieter van Dijk, Fried van Hoof,

Arjen van Rijn and Leo Zwaak (eds), Theory and Practice of the European Convention on

Human Rights (Antwerpen; Oxford: Intersentia, 2006), pp 334 – 336.

645 Ibid and pp 336 – 340.

181

no express limitation is provided for in the relevant article and except for the

non-derogable rights under art 15(2), the ECtHR may read into the relevant

article an inherent or implied limitation. These include the right to access to

court – an implied right derived from art 6 – and the right to property under art

1 of the First Protocol.646

Third, the limitation must be “necessary in a

democratic society”.647

In Sunday Times v UK, the ECtHR held that the expression “prescribed

by law” covered both unwritten and statute law648

which “must be adequately

accessible: the citizen must be able to have an indication that is adequate in

the circumstances of the legal rules applicable to a given case” (the

“accessibility test”) and “is formulated with sufficient precision to enable the

citizen to regulate his conduct: he must be able – if need be with appropriate

advice – to foresee, to a degree that is reasonable in the circumstances, the

consequences which a given action may entail” (the “foreseeability test”).649

For the second and third standards, the ECtHR has stated time and

again that “inherent in the whole of the Convention is a search for a fair

balance between the demands of the general interests of the community and

the requirements of the protection of the individual’s fundamental rights”.650

The limitation of rights must, therefore, be “proportionate to the legitimate

aim pursued”.651

The principle of proportionality also applies to art 14

646

Ibid, pp 343 – 350.

647 Yutaka Arai, “The Systems of Restrictions”, Ch 5 in Pieter van Dijk, Fried van Hoof,

Arjen van Rijn and Leo Zwaak (eds), Theory and Practice of the European Convention on

Human Rights (Antwerpen; Oxford: Intersentia, 2006), pp 334 – 336.

648 [1980] 2 EHRR 245, para 47.

649 Ibid, para 49.

650 David Harris, et al Harris, O’Boyle & Warbrick: Law of the European Convention on

Human Rights (Oxford: Oxford University Press, 2nd

edn, 2009), p 10.

651 Ibid.

182

prohibiting discrimination.652

Arai-Takahashi observes that “the notion of

proportionality at times appears to play a merely rhetorical role” and

“(e)xpress reference to proportionality does not necessarily accompany a

genuine assessment, in particular, of the effects of the interference on the

individual”.653

In a search for a theory of constitutional review, Beatty claims to have

found it in the principle of proportionality. “Building a theory of judicial

review around a principle of proportionality, it turns out, satisfies all the major

criteria that must be met for it to establish its integrity. It qualifies both as a

‘neutral principle’ in Herbert Wechsler’s famous turn of phrase and it meets

Ronald Dworkin’s tests of ‘fit’ and ‘value’ as well.”654

The principle,

according to him, is subscribed to by judges all over the world and applies to

the adjudication of all rights and freedoms.655

The ECtHR applies the proportionality test alongside the margin of

appreciation – another doctrine not expressly stated in the Convention – which

gives national authorities latitude in weighing the competing public and

individual interests.656

The latitude, out of the national authorities’ specialist

knowledge on the local conditions, varies in degree depending on various

factors, eg the nature of the particular right involved,657

whether the right

imposes any positive obligation on the national authorities,658

whether

national security or national fiscal policies are involved,659

whether there is

652

Ibid, p 11.

653 Arai-Takahashi (n 633 above), p 16.

654 David M. Beatty, The Ultimate Rule of Law (Oxford: Oxford University Press, 2004), pp

160 – 161.

655 Ibid, Ch 5: “Proportionality”, in particular pp 159 – 166.

656 Arai-Takahashi (n 633 above), pp 11 – 14.

657 Ibid, pp 8 – 9.

658 Ibid, pp 85 – 86 and 217 – 222.

659 Ibid, pp 43 – 45.

183

consensus among the Member states 660

and the question of derogation in

times of emergency.661

The Court appears to regard certain rights as

fundamental to a democratic society and hence, allows a narrower margin than

for other rights lower on the hierarchy.662

For example, equality being such a

fundamental right, non-discrimination is one of the areas in which national

authorities are allowed the narrowest margin.663

In contrast, the margin is

wider in respect of moral issues, such as sexual obscenity or propriety,

because of the absence of uniformed standard among states.664

When it comes

to derogation in times of emergency, national authorities have wide discretion

as to whether emergency conditions exist but there is closer supervision by the

Court on whether a particular derogating measure is justified.665

In an adversarial litigating system, a general rule is that the party who

makes an allegation – which can safely be presumed to be one favourable to

his position – bears the burden of proving the allegation. The general rule

becomes inappropriate when it comes to the question of whether a particular

legislative or executive act is constitutional. First, the assumption that the

allegation of unconstitutionality, if proved, is favourable to only the individual

who makes it is invalid. It is, indeed, a matter of both collective and

individuals’ interests that such acts should comply with the constitution.666

Secondly, from the pragmatic point of view, to place the burden of proof on

the state would press it to consider the constitutional implications carefully

660

Ibid, p 84.

661 Ibid, pp 8 – 9.

662 Ibid, p 246.

663 Ibid, pp 165, 223 – 225 and 247.

664 Ibid, pp 102 – 104 and 206 – 208.

665 Ibid, pp 176 – 184.

666 See Juliane Kokott, The Burden of Proof in Comparative and International Human Rights

Law (Hague; London: Kluwer Law International, 1999) pp 11 – 14 on the difficulty in

applying the German “norm theory” to constitutional adjudication.

184

before introducing any rights-limiting measures. Thirdly, the proof may

require resources and information not possessed by a private individual.

The overwhelming majority of the ECtHR’s case laws relate to

“individual applications” made under art 34 of the ECHR. Pursuant to art 35,

such an application is admissible only if, among other things, all domestic

remedies have been exhausted in respect of the act complained of. The Court’s

consideration is, therefore, divided into two stages: the admissibility stage and

the merits stage. “At the merits stage, the approach to the burden of proof is

subtle and context dependent. The level of persuasion necessary for reaching a

particular conclusion and the distribution of the burden of proof are linked to

the specific circumstances of the case, the nature of the allegation made, and

the Convention right at stake. The Court may also be attentive to the

seriousness that attaches to a ruling that a contracting party has violated

fundamental rights.”667

In general, for those rights under articles 8 – 11, which

permit interference if “necessary in a democratic society”, the onus is on the

state to prove necessity.668

The standard of proof is that of “beyond reasonable

doubt”.669

This is, however, not to be equated to the standard under the same

description in the national criminal or civil law system. “A reasonable doubt is

a doubt for which reasons can be drawn from the facts presented and not a

doubt raised on the basis of a mere possibility or to avoid a disagreeable

solution.”670

Based on the results of Arai-Takahashi’s detailed study, it would

appear that the standard of proof varies according to the same factors which

influence the margin of appreciation. For example, in the case of sex

discrimination, where the margin of appreciation is so narrow as to become

667

Harris et al (n 650 above), p 849.

668 Ibid, p 850.

669 Ibid.

670 Ibid.

185

meaningless, a high burden is placed on the state, which has to prove the

existence of “very weighty” or “compelling” justification for any differential

treatment based on sex.671

At the other end of the spectrum, when it comes to

the right of transsexuals to private and family life, the Court gives a wide

margin to national authorities because of the absence of common ground

among the Member states. It exercises restraint on the standard of

proportionality and shift the burden to the applicants “to provide hard

evidence that … medical scientists have conclusively settled doubts on the

causes and conditions of transsexuality”.672

7.2 SINGAPORE

In Singapore, the courts specifically rejected comparison with the

ECtHR’s jurisprudence because the wording of the ECHR differed from that

of the rights provisions in the Constitution of Singapore and because of the

principle of proportionality and margin of appreciation.673

The latter reason is

difficult to understand. One would have thought that the two doctrines,

especially the margin of appreciation, would give the judiciary flexibility in

deciding whether or not to interfere with a particular act by the legislature or

executive. The peremptory rejection of the two doctrines appears to amount to

an outright abdication of the judicial role, under the separation of powers, to

maintain check and balance vis-à-vis the political branches.

As discussed in section 5.2.3.1 above, part IV of the Constitution of

Singapore contains express provisions to the effect that the individuals’ rights

guaranteed therein are to be exercised “in accordance with law” or subject to

restriction imposed by “law”. In strict textualism, the courts have interpreted

“law” to include any enactment, regardless of its content. “There is a strong

671

Arai-Takahashi (n 633 above), p 224.

672 Ibid, p 73.

673 See notes 544 and 604 and accompanying texts.

186

presumption of constitutional validity of written law. The [citizens who allege

unconstitutionality] bear the burden of placing all relevant materials before the

court to show that a statutory provision or the exercise of the power under it is

arbitrary and unsupportable (see the Court of Appeal’s decision in PP v Taw

Cheng Kong [1998] 2 SLR 410 at [60]).”674

The accessibility and foreseeability tests do not apply, not to mention

the principle of proportionality. Hence, the existence of an enactment is

already a sufficient condition for the constitutional rights to be restricted. The

only exception is that for a law impinging on equality, “the factor which the

legislature adopts as constituting the dissimilarity in circumstances is not

purely arbitrary but bears a reasonable relation to the social object of the

law”.675

This is a low standard of rationality, similar to the Wednesbury

unreasonableness, which can be easily satisfied. The result of the textualist

interpretation of the word “law”, the rejection of the proportionality test and

placing on the citizens the onus of proving the unconstitutionality of

legislation is that the repeated judicial pronouncements that the court may

strike down any legislation inconsistent with the Constitution 676

are just

empty words.

It is true that the bill of rights in the Singapore Constitution differs in

structure from the ECHR. In particular, art 14(2) specifically empowers the

Parliament to enact laws to impose “such restrictions as it considers necessary

or expedient in the interests of …” (emphasis added) various objectives.

However, for the abovementioned judicial pronouncements to mean anything,

the least the judiciary should do is to require “laws” to pass the foreseeability

test and to require the government to adduce evidence on the grounds and

allegations of fact to prove to the court that the Parliament’s decision was in

674

Johari bin Kanadi v Public Prosecutor [2008] 3 SLR 422, para 10.

675 Ong Ah Chuan (n 443 above), 673H – 674A and n 447 above.

676 See n 421 above.

187

fact based on national security or other objectives specified in the Constitution.

Such burden of proof is what Chua J said, in Teo Soh Lung v Minister for

Home Affairs & Others,677

the executive had to discharge in order for its

discretion to be held intra vires. Logically, the same requirement should apply

to render an enactment constitutional. The proposed standard is not higher

than that mentioned in the preceding paragraph in respect of legislation

affording differential treatments to different classes of citizens.678

7.3 HONG KONG

7.3.1 Leading case on meaning of “law”

Hong Kong embraces the ECtHR’s jurisprudence in respect of the

meaning of “law”, proportionality test and burden of proof. The leading case

applying the accessibility and foreseeability tests is Shum Kwok Sher v

HKSAR, which held the common law offence of misconduct in public office to

be “law” for the purpose of restricting constitutional rights. 679

Bokhary PJ

echoed Sir Anthony’s words that “the degree of certainty required will depend

on the context of the law in question”.680

He emphasised that his view that the

offence was sufficiently certain was “crucially influenced by the fact that it is

not the type of offence which criminalises conduct in such a way as to limit

the exercise of a fundamental freedom eg free speech”.681

Though there was

no direct reference to the proportionality test, the dicta show that the Court, in

answering the question about certainty, had balanced the nature and degree of

rights restricted against the importance of regulating the conduct of public

officers in a clean government. 677

Note 333 above, p 507.

678 Note 675 above and accompanying texts.

679 [2002] 2 HKLRD 793.

680 Ibid, para 4.

681 Ibid.

188

7.3.2 Proportionality test and onus of proof

The proportionality test has been an essential feature of constitutional

review since the enactment of the Hong Kong Bill of Rights Ordinance in

1991.682

After 1997, the CFA applied the proportionality test in the flag case

without making direct reference to its ECtHR origin.683

It was common

ground that the Government bore the burden of proving that the restriction of

freedom of expression was justified.684

The CFA elaborated the test and its

origin in Leung Kwok Hung & Others v HKSAR.685

Any restriction to the right

to public assembly must be “necessary in a democratic society in the interests

of … public order (ordre public)”.686

The ECtHR has interpreted a similar

phrase in the ECHR to mean that any restriction must correspond to a

“pressing social need” and be “proportionate to the legitimate aim pursued”.687

In contrast, the CFA repeated its ruling in Ng Kung Siu (which applied the

Privy Council’s decision in Ming Pao Newspapers Ltd & Others v Attorney-

General of Hong Kong [1996] AC 907) that “the word ‘necessary’ in this

requirement should be given its ordinary meaning and no assistance is to be

gained by substituting for ‘necessary’ a phrase such as ‘pressing social

need’ ”.688

The Court formulated the proportionality test in these terms:

“(1) the restriction must be rationally connected with one or more of

the legitimate purposes; and (2) the means used to impair the right of

682

R v Ng Po Lam (1991) 1 HKPLR 25 appears to be the first case in which the court (the

District Court in that case) invalidated a legislative provision (a presumption clause in the

Dangerous Drugs Ordinance) for failing the proportionality test

683 Ng Kung Siu (n 631 above), pp 921A – 922E and 925F – 926H.

684 Ibid, p 922D.

685 [2005] 3 HKLRD 164

686 BOR art 17.

687 Arai (n 644 above), p 340.

688 Leung Kwok Hung (n 685 above), para 31.

189

peaceful assembly must be no more than is necessary to accomplish

the legitimate purpose in question.”689

The CFA’s decisions in both Ng Kung Siu and Leung Kwok Hung have

attracted criticisms, which will be discussed below. It has been firmly

established in numerous precedents that where a constitutional right is

restricted, the government or the decision-maker bears the burden of proving

that the restriction is justifiable and proportionate.690

7.3.2.1 “Flag case”

In Ng Kung Siu, the CFA held that the offences of desecrating the

national and regional flags and anthems to be constitutional.691

Wacks opines

that the CFA was retreating from the libertarian position it took in Ng Ka

Ling. He disagrees with the Court’s conclusions that the desecration of the

national and regional flags may undermine public order and the restriction

posed by criminalising desecration is de minimis. His objection is summarised

in his rhetorical question: “Why this omission [of any flag desecration offence

in any of the leading common law jurisdictions] if a burning flag constitutes

so powerful an invitation to violence?”692

Yap also sees the case as a retreat in

the CFA’s judicial power. A piece of national legislation was involved. The

Court wished neither to refer the question to the NPCSC nor to risk its

decision being reversed again by another NPCSC interpretation. “Given that

flag desecration is symbolic and its message could be communicated in many

alternative ways, the CFA, in the interests of safeguarding its long term

689

Ibid, para 36.

690 For example, Hung Chan Wa & Another v HKSAR [2005] 3 HKLRD 291, Secretary for

Justice v Yau Yuk Lung Zigo & Another [2007] 3 HKLRD 903 and Kwok Hay Kwong v

Medical Council of Hong Kong [2008] 3 HKLRD 524.

691 For more details of the case, see section 6.3.2.2 above.

692 Raymond Wacks, “Our Flagging Rights” (2000) 30 HKLJ 1, p 2..

190

autonomy and independence, probably chose the wiser option of allowing

flag-burning rights to go up in smoke.”693

The above comments serve to show that for all the praises Beatty has

heaped on the principle of proportionality,694

a degree of value judgment is

inevitable in the test. What is the degree of deleterious effect to the ordre

public required to justify restricting the right to freedom of expression to the

extent of making flag desecration an offence punishable up to a fine of

$50,000 and imprisonment for three years? There is no doubt reasonable

disagreement in the community and the above commentators’ judgment

differs from that of the five judges in the CFA.

To answer Wacks’s rhetorical question, it should be noted that even in

the United States, where the freedom of expression probably receives greater

constitutional protection than in any other country in the world, similar law

was only held by the Supreme Court to be unconstitutional by a bare majority

of five to four.695

In Europe, German and Italian laws protecting the national

flags were held to be constitutional.696

Nationalism is stronger in China,

including Hong Kong, than in the leading common law jurisdictions owing to

the humiliation suffered by China in the hands of the foreign powers during

the Qing Dynasty.697

National unity is still an unachieved target in the political

agenda of China. In Hong Kong, a riot in 1956 was caused by the removal of

the Nationalist flags and emblems (ie flags and emblems of the then Republic

of China based in Taiwan and until 1971, occupying China’s seat in the

693

Po Jen Yap, “Constitutional Review under the Basic Law: The Rise, Retreat and

Resurgence of Judicial Power in Hong Kong” (2007) 37 HKLJ 449, p 459.

694 See n 654 above and accompanying text.

695 Ng Kung Siu (n 631 above), p 930F – H.

696 Ibid, p 931D – F.

697 See Peter Hays Gries, China’s New Nationalism: Pride, Politics and Diplomacy (Berkeley:

University of California Press, 2004), Ch 3: “A ‘Century of Humiliation’ ”.

191

United Nations) pasted on walls.698

The people of Hong Kong have become

much more dispassionate in the last fifty years. Still, much emotion is attached

to the national flag. Defiling, if unchecked, could trigger off ugly incidents.

These factors could have influenced the judges though it would not be

politic to mention them in the judgment. Anyway, in a borderline case of such

sensitivity arising less than a year after the reversion of Hong Kong’s

sovereignty to China – the offences were committed on 1 January 1998 – the

judiciary should, on ground of the margin of appreciation, defer to the

legislature’s judgment. “If in doubt, defer to legislative determinations.”699

This is the suggestion made by three American jurists, in regard to the South

African Constitution, to alleviate the counter-majoritarian difficulty.

Admittedly, the Provisional Legislative Council which enacted the impugned

legislation was far from democratically elected. The Court, of course, could

not possibly regard this as a valid factor. Legally, the CFA had already held,

in Ng Ka Ling, that the formation of the PLC was consistent with the Basic

Law.700

Many, including myself, would share Yap’s suspicion that the CFA’s

decision was politically motivated. The more pertinent question is whether the

decision can be justified on legal ground. As argued in the preceding

paragraph, I do think it is justified on ground of proportionality. Yap

apparently intends his comment to be a description, and not an indictment, of

the decision. After all, to safeguard the court’s “long term autonomy and

698

During the riot on 10 and 11 October 1956, “approximately 6,000 persons [were arrested]

many of whom were subsequently brought before the courts on serious charges connected

with the rioting, including 5 persons charged for murder”: Hong Kong Government, Hong

Kong Annual Report 1956, p 191.

699 Dennis Davies et al, “Democracy and Constitutionalism: The Role of Constitutional

Interpretation” in Dawid van Wyk et al (eds), Rights and Constitutionalism: The New South

African Legal Order (Kenwyn: Juta & Co. Ltd, 1994), p 19.

700 Ng Ka Ling (n 363 above), p 357B – H.

192

independence” is not a selfish objective. Such calculation, another form of

Bickel’s “passive virtues”, is not a legally justified consideration. However, it

is not morally wrong for it to go into the proportionality test. The safeguarding

of judicial autonomy and independence, and hence the maintenance of public

confidence in the administration of justice, is to protect the “public order

(ordre public)”, as held by the CFI701

and CA.702

7.3.2.2 Notification scheme for public assemblies

The Public Order Ordinance (Cap 245) prescribed a notification

scheme for the holding of public processions.703

A person who organised or

701

S for J v Oriental Press Group (n 614 above).

702 Wong Yeung Ng (n 624 above).

703 The Ordinance provides that where such a procession participated by more than thirty

persons is to be held in a public highway or thoroughfare or in a public park, the organiser has

to notify the Commissioner of Police at least one week in advance (sections 13 and 13A(1)).

The CP has discretion to accept shorter notice and must do so if he is reasonably satisfied that

earlier notice cannot have been given (section 13A(2)). Upon such notification, the CP may

object to the event “if he reasonably considers that the objection is necessary in the interests

of national security or public safety, public order (ordre public) or the protection of the rights

and freedom of others” (section 14(1)). He must notify the organiser in writing as soon as

practicable, and in any event within the time limit specified in the Ordinance, whether or not

he objects to the event (section 14(2), (3) and (4)). If he does not issue any notification within

the time limit, he is deemed to have issued a notice of no objection (section 14(4)). He is

obliged not to object if the relevant legitimate objective can reasonably be met by imposing

conditions (sections 14(5) and 15(2)). If he objects, the notification must set out the reasons

for the objection (section 14(2)). The organiser, if aggrieved by the CP’s objection or the

conditions imposed by him, may appeal to an Appeal Board (section 16(1)). Members of the

Board – a Chairman, two Deputy Chairmen and thirteen other persons – are appointed by the

Chief Executive (section 43(1) and (2)). The Chairman must be a retired Judge of the High

Court or District Court or a former Magistrate with more than ten years’ experience as a

magistrate (section 43(2)). Each appeal will be considered by four persons: the Chairman (or a

Deputy Chairman) plus three persons (section 44(1)). The Chairman (or Deputy Chairman)

193

assisted in organising a public procession of more than thirty persons on a

public highway or thoroughfare or in a public park committed an offence if he

did not comply with the notification requirement (section 17A(3)(b)(i)). An

activist Leung Kwok Hung was convicted of the offence. When the case

reached the CFA, the main issue was whether the notification scheme was

constitutional. The CFA held that section 13(2), which empowered the

Commissioner of Police (“CP”) to object to a public procession on ground of,

inter alia, “public order (ordre public)” did not pass the foreseeability test

because the term “ordre public”, when used in a statute instead of a

constitution, did not give an adequate indication of the scope of CP’s

discretion.704

For the provision to pass the test and be regarded as “law”, the

CFA read down “public order (ordre public)” to mean purely public order,

which was sufficiently certain.705

The CFA accepted that the notification was

required for the Government to discharge its duty of taking reasonable

measures to ensure that public assemblies could take place peacefully.

Following the reading down, the CP might object to or impose conditions on a

public procession only when the restriction was no more than necessary to

protect public order. Taking into account the positive duty, the limited

discretion and the other main features of the notification system (in particular,

the notification requirement applied only to public processions of more than

thirty persons), the CFA concluded that the notification scheme passed the

proportionality test. The conviction of Leung and others for refusing to

comply with the notification requirement was upheld.

Yap comments that “(t)he reasoning of the CFA was unfortunately

seriously flawed” because “no where in the judgment did the CFA explain

why it was necessary and proportionate for the Commissioner to possess the

has a casting vote in case of a tie (section 44(2)). The Appeal Board’s decisions are, under the

common law, subject to judicial review.

704 Leung Kwok Hung (n 685 above), para 77.

705 Ibid, para 84.

194

powers of prior restraint. Nowhere in the judgement did the Court explain why

‘public order’ in the law and order sense was constitutionally certain and clear.

It merely asserted as being so. In fact all the various statutory grounds for

prohibiting notified processions were wide and vague.”706

In response, it should be noted that Leung Kwok Hung dealt with a

very narrow issue: whether the relevant sections in the Public Order

Ordinance requiring the Commissioner of Police to be given advance

notification of any public procession participated by more than thirty persons

were constitutional. Leung and others were convicted for failing to comply

with the requirement even though the police officer at the scene invited him to

go through the statutory notification procedure on the spot.707

On conviction,

which they appealed against, they were each bound over on own recognisance

for $500 for a period of three months.708

Once it was established that the Government had a positive duty to

take reasonable and appropriate measures to enable lawful assemblies to take

place peacefully,709

prior notification was obviously necessary. Without prior

notification, there is no way in which the Government can discharge such a

duty by making the necessary arrangements in the interests of “various facets

of public order such as traffic conditions and crowd control”.710

Except by

making non-notification an offence, there appears to be no other practicable

means to ensure that the notification requirement will be complied with.

It should be noted that the penalty meted out in the present case was

indeed a light one and proportionate to the need to ensure compliance with the

706

Yap (n 693 above), p 466.

707 Leung Kwok Hung (n 685 above), para 6.

708 Ibid, para 5.

709 Ibid, paras 22 – 24.

710 Ibid, para 92(3).

195

notification requirement. Brabyn suggests that the maximum penalties of three

years’ imprisonment or a fine of HK$5,000, which are comparable to those for

serious crimes such as inflicting grievous bodily harm, “are much in excess of

maximum penalties for comparable offences in any democratic society

anywhere in the world”.711

However, as she has also noted, the maximum

penalties are reserved for the worst case scenarios. Since the courts have

discretion on the actual penalties in individual cases, it is submitted that in

administering the proportionality test, little weight need be attached to the

statutory maximum penalties. If necessary, the courts may read down the

statutory provisions to render them proportionate and constitutional.

In saying so, I am conscious of the CFA’s view in HKSAR v Ng Po On

that “a relatively low level of penalty is merely a negative factor in the

proportionality assessment … and does not provide any positive justification

for the encroachment ”.712

The CFA’s view was expressed in the context of

the presumption of innocence: whether the legitimate objective of combating

corruption was so important as to warrant transferring to a suspect the burden

of proving his innocence. The difference between guilt and innocence is one

of quality, which cannot be changed by a relatively low penalty. In Leung

Kwok Hung, if it is accepted that criminalisation is the only way to prevent

non-compliance with the notification requirement, the level of penalty

becomes a matter of degree. A relatively low penalty amounts to less

restriction of the freedom of expression. In the absence of any mandatory

minimum penalty, any deterrence effect of the offence lies more in the level of

actual penalties than in that written in the statute.

The need for the police to possess the power of prior constraint is in

fact implicit from the factors, set out in paragraph 92(3) of the judgment, the

711

Janice Brabyn, “Leung Kwok Hung & Others Through the Hong Kong Courts” (2006) 36

HKLJ 83, p 113.

712 [2008] 4 HKLRD 176, para 58, per Ribeiro PJ.

196

police should consider. It is easy to think of circumstances in which such prior

constraint may be necessary, eg two opposing political groups both propose to

hold rallies involving tens of thousands of participants in the same place and

at the same time in order to promote emotionally contested causes. In any case,

rather than considering the notification requirement or the police discretion in

isolation, the CFA examined the notification scheme as a whole and

concluded that it was proportionate to, and hence necessary for, the purpose of

public order.713

The approach was similar to that taken by the House of Lords

in R v Shayler.714

In considering whether a requirement for a retired member

of the security service to obtain approval for disclosure of official information

was a justified interference with the right to freedom of expression, the HL

looked into the scheme as a whole, and not the approval requirement in

isolation, to arrive at the conclusion that there was sufficient protection of the

right.

In examining aspects of the scheme other than the notification

requirement, the CFA in fact did more than necessary to dispose of the appeal

against conviction. The notification requirement and the offence of non-

compliance are independent of the discretion to be exercised by the police and

other parties. The question whether the statutory provisions empowering the

police and other parties to impose restraint was constitutional was irrelevant to

the constitutionality of the notification requirement. The constitutionality of

713

Leung Kwok Hung (n 685 above), paras 90 – 94.

714 [2003] 1 AC 247, [2002] UKHL 11. Shayler was a former member of the UK security

service who was convicted under the Official Secrets Act for disclosing documents and

information to newspaper. He appealed on the ground that the disclosure was in the public

interest and the ban on disclosure was incompatible with the right to freedom of expression.

The HL held that he could have applied, under the Act, for official permission to disclose the

information and if permission was denied, he could have sought judicial review. The Act,

therefore, already contained sufficient protection for the public interest and the right to the

freedom of expression. On that ground, the HL dismissed the appeal.

.

197

those provisions need be considered in a judicial review of the restraint

imposed and not in a criminal charge for breaching the notification

requirement. The CFA said as much in its paragraph 97: “The offences for

which the appellants were convicted did not relate to the statutory provisions

conferring on the Commissioner the discretion to object or to impose

conditions on a public procession where he considers it reasonably necessary

in the interests of ‘public order (ordre publc)’ ”. Subject to more detailed

research, which would go beyond the scope of this thesis, it appears that this

line of argument is consistent with the Court of Appeal’s recent decision in

Secretary for Justice v Ocean Technology Ltd & Others. 715

The CFA

subsequently refused to give leave to appeal against the decision.716

On Yap’s comment that the CFA did not explain why “ ‘public order’

in the law and order sense was constitutionally certain and clear”, there should

be no dispute that those matters mentioned in paragraph 92(3) of the judgment

relate to “public order”. An elaboration of the meaning of the expression was

unnecessary because, as discussed above, the case was not about the police’s

exercise of discretion. It was an example of Sunstein’s minimalism for the

Court to make a narrow and shallow decision which was sufficient to dispose

of the dispute in the case. Minimalism – to decide no more than required by

715

[2009] 1 HKC 271: Several activists, whose application for a broadcasting licence under

the Telecommunications Ordinance was unsuccessful, went ahead with radio broadcast

without a licence. For that, they were prosecuted for broadcasting without licence, an offence

created by the Ordinance. The magistrate dismissed the charge after holding that the licencing

scheme was unconstitutional. The Court of Appeal considered that “(t)he key question raised

by this appeal is whether the constitutionality of the statutory licensing scheme prescribed by

the Telecommunications Ordinance has any bearing on the constitutionality of the offence-

creating provisions” (para 5). The CA held, based on the construction of the relevant

provisions in the Ordinance, that in a prosecution for broadcasting without licence, “it is not

open to the defendant to raise by way of defence the legality of a licensing decision or of the

licensing scheme” (para 95).

716 Secretary for Justice v Ocean Technology Ltd & Others, unreported, FAMC 1/2009, Court

of Final Appeal, 19 May 2009

198

the facts in the instant case – is, incidentally, also the answer to Brabyn’s

comment that “the constitutionality of the POO bottom line … did not receive

that full and express scrutiny from the CFA majority in this case”.717

Despite

the CFA’s conclusion about the constitutionality of the notification scheme as

a whole, the problems mentioned by her, eg the police’s exercise of its prior

restraint powers, can – and should – be addressed in appropriate cases in

future.

7.4 COMPARISON

The literal meaning attached to the word “law” and the use of the

rationality or reasonableness test instead of proportionality mean that in

Singapore, if ever a statute could be struck down on ground of infringement of

constitutional rights, it would have to be Wednesbury unreasonable or a case

of “clear mistake”718

Even if such an extreme case does arises, a citizen who

wishes to challenge bears the burden of proof and the result may depend on

what proof or argument is required for the court to be satisfied of

unreasonableness or “clear mistake”.

Hong Kong adopts all the ECtHR’s – and potentially universal –

principles as regards the restriction of entrenched rights. The proportionality

test, while injecting common grounds and objectivity in assessing whether a

restriction is “necessary in a democratic society”, does not foreclose debates.

717

Brabyn (n 711 above), p 116.

718 Under James Bradley Thayer’s “rule of clear mistake”, the Court could strike down a

statute as unconstitutional only “when those who have the right to make laws have not merely

made a mistake, but have made a very clear one, – so clear that it is not open to rational

question.": James Bradley Thayer, “The Origin and Scope of the American Doctrine of

Constitutional Law” in Legal Essays (Boston: Boston Book Co., 1908) – accessed via

HeinOnline.org on 14 June 2008 – pp 1-40, at p 21. See also n 86 above and accompanying

text.

199

With evidence and arguments based on commonsense and social science, such

debates would facilitate resolving reasonable disagreements in the society.

200

CHAPTER 8 –

IMPLICATIONS

OF CONSTITUTIONAL REVIEW

FOR SUBSTANTIVE RIGHTS

8.1 COMPARATIVE SUBSTANTIVE RIGHTS

As can be seen from Chapters 5 to 7, the Singapore courts are more

restrained – to the extent of deferential – than their Hong Kong counterparts in

striking down the legislature’s decisions. In theory, this would not necessarily

result in lower human rights standards in Singapore. For argument’s sake, the

political branches may be fully committed to rights in all their decisions and

hence, an equally rights-committed judiciary subscribing to Cross’s and

Fallon’s theories 719

might have no cause to exercise its veto power. In reality,

the human rights standards in Singapore do fall below those in Hong Kong

and for that matter, in the major common law jurisdictions. This is shown in

the comparisons below. Far from being a comprehensive account of all

constitutional rights, the comparisons represent a summary of those rights

engaged in the cases discussed in Chapters 5 to 7.

8.1.1 Freedom of expression

8.1.1.1 Jehovah’s Witnesses compared with Falun Gong

The differences are most significant in the freedom of expression –

including freedoms of speech, assembly and association. In Singapore, the

719

See sections 3.4.6 and 3.4.7.

201

adherents of the Jehovah’s Witnesses in Singapore, simply because of their

religious beliefs to refuse military service and salutation of the national flag,

were subject to the following treatments:

(a) all their publications were banned regardless of the contents720

and even possession of such publications constituted an

offence;721

and

(b) their organisation was deregistered and hence, became an

unlawful society. As a result, it was an offence to be a member

of the organisation722

or to be engaged in a worship and bible

study meeting in a private home.723

Further, an adherent who was a teacher lost his job because he refused to take

the National Pledge and sing the National Anthem in the school’s morning

assemblies.724

In contrast, the Falun Gong, a group declared by the mainland

authorities as an evil cult in the mainland, has been operating freely in Hong

Kong. Its members regularly and frequently distribute leaflets and display

placards and banners accusing Chinese national leaders of committing

atrocities towards Gong members in the mainland. A search of the Judiciary’s

database suggests that no criminal or civil action has ever been taken against

the publication of such information. Unlike the Undesirable Publications Act

in Singapore, there is no pre-censorship of information published on paper .

720

Chan Hiang Leng Colin v M for I & A (notes 481 and 484 above and accompanying texts)

721 Chan Hiang Leng Colin v PP (notes 464 and 483 above and accompanying texts), Liong

Kok Keng v PP (n 485 and accompanying text) and Quak Siew Hock David v PP (n 488

above).

722 Chan Cheow Khiang v PP (n 486 above).

723 Kok Hoong Tan Dennis v PP (n 487 above).

724 Nappalli Peter Williams v I of TE (n 489 above).

202

The Control of Obscene and Indecent Articles Ordinance (Cap 390) prohibits

the publication (but not mere possession) of “obscene” articles to any member

of the public and prohibits the publication of “indecent” articles to persons

aged under 18.725

“Obscenity” and “indecency” “include violence, depravity

and repulsiveness”726

which, though vague, are never intended or interpreted

to control political messages.

Though the Falun Gong is illegal in the mainland and resented by

certain sectors in Hong Kong, its right to public assembly is protected by the

court. When members of the group demonstrated outside the office of the

Central Government’s representatives in Hong Kong and were arrested by the

police for obstructing a public place in contravention of sections 4A and 4(28)

of the Summary Offences Ordinance (Cap 228), the CFA quashed all

convictions because such obstruction did not necessarily constitute an offence.

Taking into account the members’ constitutional right to freedom of

demonstration, a proper construction of the relevant statutory provisions was

that “while exercise of the right to demonstrate must not cause an obstruction

exceeding the bounds of what is reasonable in the circumstances, such bounds

must not be so narrowly defined as to devalue, or unduly impair the ability to

exercise, the constitutional right”.727

While the refusal to salute the national flag and sing the national

anthem led to the banning of all publications of the Jehovah’s Witnesses and

the de-registration of its organisation in Singapore, it is unthinkable in Hong

Kong for the residents’ freedoms to be restricted for similar reason. The

offences of burning and defiling of the national and regional flags were held to

be constitutional in Hong Kong only after careful consideration of the

725

Sections 21 and 22 of Ordinance.

726 Section 2(3) of Ordinance.

727 Yeung May Wan & Others v HKSAR [2005] 2 HKLRD 212, para 44.

203

implications for ordre public and a review of foreign jurisprudence.728

Such

restriction of the freedom of expression is considered to “lie just within the

outer limits of constitutionality”.729

8.1.1.2 Public assembly

In Singapore, a licence is required for the holding of a public rally.730

In Hong Kong, mere notification is required, the purpose of which is to enable

the Government to discharge its positive duty to make reasonable and

appropriate arrangements for the residents to exercise their right to public

assembly in a peaceful manner. The CFA held the notification requirement to

be constitutional only after being satisfied that there were sufficient

safeguards in the scheme as a whole to ensure that the authorities would

follow the principle of proportionality when deciding whether to object, to

impose conditions or raise no objection.731

8.1.1.3 Protection of public figures

Singapore courts are more concerned about protecting public figures

from criticism than protecting the citizens’ right to free speech. This is

manifested in the laws on scandalising the court732

and on defamation. The

court rejected requiring proof of “real risk” in prejudicing the administration

of justice. Instead, it held that the test was “inherent tendency to interfere

with the administration of justice” and “the right to fair criticism is exceeded

and a contempt of court is committed so long as the statement in question

728

Ng Kung Siu (n 631 and accompanying text).

729 Ibid, para 98, per Bokhary PJ.

730 See Chee Soon Juan (notes 457 and 458 and accompanying texts).

731 Leung Kwok Hung (notes 685, 688, 704 and 707 to 710 above and accompanying texts).

732 The effect, though not the rationale, of the offence of scandalising the court is to protect

the reputation of judges: see n 562 above.

204

impugns the integrity and impartiality of the court even if it is not so

intended”.733

In Hong Kong, the “real risk” test was adopted, which

compensated for not requiring the mens rea of intentionally undermining

public confidence in the administration of justice as an ingredient of the

offence.734

Singapore is infamous for the number of defamation suits launched by

members of the People’s Action Party against opposition politicians. As a

result of substantial damages awarded by the courts, several opposition

politicians became bankrupt and hence, ineligible to stand for election.735

The

defamation laws in the major common law jurisdictions afford protection to

debates on political and public affairs.736

Singapore courts have rejected

expanding the scope of qualified privilege to provide for similar protection.737

In Hong Kong, even though government officials up to the Chief

Executive are criticised and ridiculed by the media on a daily basis in the last

ten years or so, none has ever – at least there has not been any reported case –

responded with defamation suits against the critics. An interesting

phenomenon in the “minor epidemic of defamation litigation” referred to by

Cottrell738

was that it included quite a number of cases with media

733

AG v Chee Soon Juan (n 574 above and accompanying text).

734 Wong Yeung Ng (notes 624 and 626 to 630 and accompanying texts).

735 International Bar Association Human Rights Institute, Prosperity versus Individual Rights?

Human Rights, Democracy and the Rule of Law in Singapore (London: International Bar

Association, July 2008), pp 26 – 39.

736 See notes 585 to 589 above.

737 JBJ v Lee Kuan Yew (n 592 above and accompanying text), Lee Hsiang Loong v SDP (n

598 above and accompanying text) and Lee Hsien Loong v Review Publishing (n 601 above

and accompanying text).

738 Jill Cottrell, “Fair Comment, Judges and Politics in Hong Kong”, (2003) 27 Melbourne

University Law Review 33, p 34

205

organisations as the plaintiffs.739

In any case, the kind of hazards faced by J. B.

Jeyaratnam and others from allegedly compliant judges can, in Hong Kong, be

addressed by the defendants’ applying under section 33A(1) of the High Court

Ordinance (Cap 4) for the case to be tried by jury. The jury will decide

whether the statement is defamatory,740

whether any defence is successful741

and also, the quantum of damages.742

(In Singapore, there is no jury trial even

in criminal cases.)743

In contrast to Singapore courts’ resistance to foreign

jurisprudence protecting political speeches, Hong Kong courts applied the

Reynolds factors744

almost as a matter of course.745

The best evidence that the CFA leans on the side of free speech rather

than the right to reputation is its breakthrough decision on the meaning of

“malice” which can defeat the defence of fair comment. In the past, it was

739

“Recently everyone might notice that solicitors’ letters are flying everywhere among the

media – makes people think whether there is not a trend of treading on each other.” This

statement, made by the presenter in a television programme broadcast on 11 March 1995,

indicated the proliferation of potential defamation suits among the media. It led to the

presenter being sued by a newspaper for defamation: Eastern Express Publisher Ltd &

Another v Mo Man Ching & Another [1999] 3 HKLRD 530, p 532H.

740 Rick Glofcheski, Tort Law in Hong Kong (Hong Kong; Singapore; Malaysia: Sweet &

Maxwell Asia, 2nd

edn, 2007), para 22.4.1.3.

741 See, for example, Tse Wai Chun Paul v Albert Cheng & Another, unreported, CACV

170/1998, Court of Appeal, 19 October 1999, para 9.

742 Glofcheski (n 740 above), para 22.6.1.3.

743 In Singapore, jury trial was abolished, except for the capital cases, on 13 Feb 1960. The

Minister for Labour and Law said, when introducing the relevant amendment bill, that “the

jury system is time consuming and expensive”: Singapore Parliamentary Reports for 2 Sep

1959, Column 558. Jury trial for capital cases was abolished on 22 Dec 1969. Moving the

second reading of the relevant bill, the Minister for Law and National Development said the

system was unworkable, there being evidence from former jurors about wrong verdicts being

reached in the jury room: Singapore Parliamentary Reports, 22 Dec 1969, Columns 193 –

196.

744 See n 589 above.

745 Yaqoob v Asia Times Online Ltd [2008] 4 HKLRD 911, paras 17, 29 and 121 to 134.

206

believed that: “(w)hether a defendant can be regarded as having malice

depends on … [among other things] whether he honestly believes in the truth

of what he says, whether he has any motive to serve other than expressing an

honest opinion, whether that other motive is the dominant motive for saying

what he says.”746

In Cheng & Another v Tse Wai Chun, the CFA opined that

“(t)he courts should adopt a generous approach so that the right of fair

comment on matters of public interest is maintained in its full vigour”.747

Delivering the consensus of the Court, Lord Nicholls, who incidentally also

delivered the House of Lords’ decision in Reynolds, set out five objective

limits of fair comment: first, “the comment must be on a matter of public

interest”;748

second, “the comment must be recognisable as a comment, as

distinct from an imputation of fact”;749

third, “the comment must be based on

facts which are true or protected by privilege”;750

fourth, “the comment must

explicitly or implicitly indicate, at least in general terms, what are the facts on

which the comment is being made”;751

and finally, “the comment must be one

which could have been made by an honest person, however prejudiced he

might be, and however exaggerated or obstinate his views”.752

“A comment

which falls within the objective limits of the defence of fair comment can lose

its immunity only by proof that the defendant did not genuinely hold the view

he expressed.” (Emphasis added).753

Proof that the defendant had ulterior

motives – eg “(a)ctuation by spite, animosity, intent to injure, intent to arouse

controversy or other motivation” – would not defeat the defence though it

746

Tse Wai Chun Paul (n 741 above), para 23.

747 [2003] 3 HKLRD 418, p 422H, per Li CJ.

748 Ibid, p 424F.

749 Ibid, p 424G.

750 Ibid, p 424J.

751 Ibid, p 425A.

752 Ibid, p 425B.

753 Ibid, p 438C.

207

would constitute evidence from which his lack of genuine belief could be

inferred.754

8.1.2 Liberty of the person

Capital punishment and caning, still carried out in Singapore, were

abolished in Hong Kong in 1993 755

and 1990 756

respectively. The capital

punishment in Singapore is mandatory for certain offences such as drug

trafficking 757

or possession of controlled drug exceeding a specified quantity,

758 except that it shall not be passed on any person committing the relevant

crime when under the age of 18 or on pregnant women.759

In Hong Kong, the

only mandatory and the heaviest penalty is life sentence, which shall only be

passed on a person convicted of murder.760

The CFA endorsed the mandatory

life sentence because it would only be passed in respect of the most serious of

all crimes, was enacted by the legislature as a compromise of divergent views

in the community and individual cases would be reviewed by the statutory

Long-term Prison Sentences Review Board.761

754

Ibid, p 438C – D.

755 For the history on the abolition of capital punishment, see Lau Cheong & Another v

HKSAR [2002] 2 HKLRD 612, paras 75 – 92.

756 Ordinance No 72 of 1990. When introducing the relevant bill into the Legislative Council,

the Secretary for Security said that corporal punishment was used by the court sparingly

presumably because the court considered the punishment to be unnecessary and outdated,

there being other sentencing options which achieved the penal objectives of punishment,

deterrence and rehabilitation. The Administration was of similar view. According to a public

opinion poll, most respondents thought corporal punishment was less effective than

imprisonment and other forms of punishment: Official Report of Proceedings of the Hong

Kong Legislative Council 1989 – 1990, pp 2019 – 2020 (for sitting on 11 July 1990).

757 For example, Nguyen Tuong Van (n 447 above).

758 For example, Ong Ah Chuan (n 443 above).

759 Sections 213 and 214 of the Criminal Procedure Code.

760 See Lau Cheong (n 755 above).

761 Ibid.

208

8.1.3 Retrospectivity of criminal law

“It is a principle of general policy that a person should not be penalised

except under clear law …”762

The principle is embodied in art 11(1) of the

Constitution of Singapore and was invoked by the Court of Appeal to rule

against the executive.763

One doubts whether the Court would have done the

same if the act being complained of was a legislative decision. After all,

“greater deference is to be paid to an Act of Parliament than to a decision of

the executive or subordinate measure”.764

In Hong Kong, the CFA invalidated,

on ground of inconsistency with art 15(1) of the ICCPR, a retrospective

statutory provision which would have adverse consequences for the persons

concerned.765

8.1.4 Presumption of innocence

Another basic principle of English law is the presumption of innocence.

The Constitution of Singapore does not expressly provide for the principle.

However, in Ong Ah Chuan, the Privy Council held it to be taken for granted

by the makers of the Constitution that the word “law” in articles 9(1) and 12(1)

referred to a system of law which included such a principle for protection of

the individuals’ fundamental liberty.766

The relevant presumption clause in the

762

Bennion (n 353 above), p 825.

763 Public Prosecutor v Manogaran S/O Ramu [1997] 1 SLR 22 and Abdul Nasir bin Amer

Hamasah v Public Prosecutor [1997] 3 SLR 643.

764 International Transport Roth GmbH v Home Secretary [2002] 3 WLR 344, at p 376, per

Laws LJ (dissenting). This is one of the four principles endorsed by the House of Lords in

Regina (ProLife Alliance) v British Broadcasting Corporation [2004] 1 AC 185, para 136.

765 Ng Ka Ling (n 363 above), pp 350G – 352D.

766 The principle is that “a person should not be punished for an offence unless it has been

established to the satisfaction of an independent and unbiased tribunal … that all the physical

and mental elements of the offence with which [the accused] is charged, conduct and state of

209

Misuse of Drugs Act complained of in that case was per se unlawful 767

but

was held to be constitutional only because the specified quantity of controlled

drugs, the possession of which gave rise to a rebuttable assumption that the

accused possessed it for the purpose of trafficking, was “many times greater

than the daily dose taken by typical heroin addicts in Singapore”.768

Michael Hor observes: “In Singapore, apart from the one bright flash

of discussion by the Privy Council in Ong Ah Chuan, courts have been

making decisions impinging on the presumption of innocence without much

analysis of constitutional principle.”769

Ong Ah Chuan, Hor says, failed “to

provide any adequate (or any) framework” for the application of the

presumption of innocence.770

In the absence of such a framework and since

Ong Ah Chuan in fact upheld the constitutionality of the presumption clause,

the principle mentioned above may be regarded as purely obiter. Adding this

to the absence of an express constitutional provision, the result is that there

appears to have been no constitutional challenge against the reverse burden of

proof provided for in section 107 of the Evidence Act.771

In Hong Kong, art 14(2) of ICCPR, incorporated as art 11(1) of the

BOR, has grounded quite a number of constitutional challenges against

statutory provisions which have the effect of transferring part of the burden of

mind as well where that is relevant, were present on the part of the accused”: Ong Ah Chuan

(n 443 above), p 671B – C.

767 Ibid, p 671G.

768 Ibid, p 672A.

769 Michael Hor, “The Presumption of Innocence – A Constitutional Discourse for Singapore”

[1995] Singapore Journal of Legal Studies 365, p 367.

770 Ibid, p 369.

771 Section 107(1) reads: “When a person is accused of any offence, the burden of proving the

existence of circumstances bringing the case within the general exceptions in the Penal Code

(Cap 224), or within any special exception or proviso contained in any other part of the Penal

Code, or in any law defining the offence, is upon him, and the court shall presume the absence

of such circumstances.”

210

proof to the defendants in criminal cases. While Hor opines that “no court

would wish to be labelled ‘soft’ and obstructionist by banishing all

presumptions from drugs legislation in the face of an alarming increase in the

use of illicit narcotics in modern society”, 772

the Court of Appeal in Sin Yau

Ming, despite “abhorrence for the evils inherent in the narcotic trade”, 773

invalidated provisions in the Dangerous Drugs Ordinance which facilitated

enforcement by transferring the burden of proof to the accused. This and other

decisions were based on the principle that for a mandatory presumption of fact

to be constitutional, the onus was on the prosecution to adduce “cogent and

persuasive” evidence 774

to prove “on the preponderance of probability” 775

that “the fact to be presumed rationally and realistically follows from that

proved and also … the presumption is no more than proportionate to what is

warranted by the nature of the evil against which society requires

protection”.776

Hor’s 1995 plea for his country to embark on a new discourse on the

burden of proof has yet to produce any significant changes in this area of the

law in Singapore. His suggestion that evidential burden would be the

proportionate response in most cases accords with decisions made by the

Hong Kong courts. To tackle smuggling, sections 18A(2) and 35A(2) of the

Import and Export Ordinance (Cap 60) provide that a person proved to be

engaged in such activities “in circumstances that gives rise to a reasonable

suspicion that there is intent … will be presumed to have such intent in the

absence of evidence to the contrary”. In 1992, the Court of Appeal held the

provisions to impose merely an evidential burden on the accused and hence,

772

Hor (n 769 above), p 372.

773 Note 355 above, p 113, lines 41 – 42.

774 Ibid, p 113, line 31.

775 Ibid, p 113, line 30.

776 Ibid, p 113, lines 24 – 27.

211

be consistent with art 11(1) of the BOR.777

That case appeared to be one of

purely statutory interpretation. A recent example of a statutory provision being

read down to render it constitutional was HKSAR v Lam Kwong Wai &

Another, in which the CFA interpreted the expression “satisfies the

magistrate” in section 20(3) of the Firearms and Ammunition Ordinance to

impose merely an evidential burden on the accused, though the legislature did

intend persuasive onus.778

Another recent example is HKSAR v Ng Po On, in

which the CFA read down the relevant provisions in the Prevention of Bribery

Ordinance such that they imposed on the accused evidential burden only. 779

“So read down, the accused would be required to raise the issue of reasonable

excuse, supported by sufficient credible evidence to engender a reasonable

doubt as to the prosecution’s case, but the prosecution would retain

throughout the persuasive burden of proving non-compliance, encompassing a

burden of negativing any purported reasonable excuse.”780

8.2 DIFFERENCES BETWEEN SINGAPORE AND

HONG KONG IN A NUTSHELL

Despite their common British legal heritage, Singapore and Hong

Kong have parted ways as far as constitutional interpretation is concerned.

Notwithstanding the existence of a written constitution, Singapore has, in

practice, retained parliamentary supremacy in the Westminster political

system. The ruling political party has used its dominance in the Parliament to

amend the Constitution at will.781

The judiciary has declined to take a stand on

whether there is any constitutional limit as to how far such amendments may

777

The Queen v Wong Hiu Chor & Another, unreported, HCMA 484/1992, Court of Appeal, 4

December 1992.

778 [2006] 3 HKLRD 808.

779 [2008] 4 HKLRD 176.

780 Ibid, para 77.

781 Note 322 above and accompanying text.

212

depart from the values, such as the separation of powers, embedded in the

British system.782

While the Singapore courts have rejected foreign

constitutional law on ground of the city-state’s unique political and economic

circumstances – which however have not been elaborated in their judgments –

the Hong Kong courts have opened up to the world right from the enactment

of the Hong Kong Bill of Rights Ordinance in 1991. Through the generous

interpretation of the rights enshrined in the Basic Law and a narrow

interpretation of the permissible restriction, the courts have contributed to

human rights standards which, except for the absence of truly democratic

election to the legislature and the executive, are comparable to those enjoyed

in the most liberal countries in the world.

Based on a research on six common law jurisdictions including

Singapore, Thiruvengadam has formulated two models of constitutionalism to

explain transnational judicial influence. He locates Singapore within the

National Formalism model. 783

If so, Hong Kong appears to fit into the

Cosmopolitan Pragmatism model.784

782

See notes 337 to 341 above and accompanying texts.

783 Thiruvengadam (n 556 above), p 128: “ … judges of the National Formalist persuasion

share, apart from their scepticism towards trans-judicial influence, the following traits: i) a

preference for rules because of their tendency to limit judicial discretion while enhancing the

values of certainty, stability and predictability; ii) a preference for the interpretive strategies of

textualism and originalism; iii) a reluctance to overrule settled precedents; iv) a belief in the

superior representative capacity (or democratic legitimacy) of the legislative and executive

branches, leading to a deferential attitude towards them coupled with a general reluctance to

second-guess their decisions; v) a preference for rules over standards; vi) a belief in the

‘limited domain’ of the law and a corresponding privileging of forms of legal reasoning in

their opinions; and vii) avoidance of judicial policy-making.”

784 Ibid, pp 132 – 133: “In summary, the broad features of the Cosmopolitan Pragmatism

model, apart from its embrace of trans-judicial influence, can therefore be summarised as

follows: i) a belief that judges should use the power of judicial review in a manner befitting

the status of judges as partners (and not subordinates) of other constitutional actors; ii) a focus

upon context-specific, inductive modes of reasoning which are sensitive to the facts at hand,

213

In real life, all judges are positivists. They differ only in degree.

Singapore judges are positivists among the positivists, leaving almost all

moral reasoning to the legislature and the executive. Hong Kong judges are at

the other end of the naturalism / positivism continuum. They play a

supervisory role vis-à-vis the political branches to ensure that the human

rights standards in Hong Kong stay close to those enjoyed in democratic

countries in the world. In terms of Bobbit’s six modalities of constitutional

interpretation,785

the Singapore judges’ preference for rules over standards –

and more specifically their avoidance of the proportionality test – means that

prudential modality is not used. In Hong Kong, the prudential modality

features in tackling probably all the highly contested constitutional issues.

Finally, at a higher level of abstraction, if there were a social contract

between the state and the citizens – a concept rejected by Karthigesu JA in

Taw Cheng Kong 786

– Singapore’s government would resemble Thomas

Hobbes’s sovereign. To Hobbes, the sovereign holds centralised and unlimited

and a scepticism towards approaches which hold that correct outcomes can be deduced from

overarching principles; iii) an openness to all forms of authority (including conventional

authorities such as text, precedent, structure, etc) but the absence of an unduly deferential

attitude towards them, and a readiness to jettison them in favour of other authorities that

advance what they perceive as the ‘best results’; iv) a preference for interpretive strategies

that advance a ‘living constitution’ model; v) an acceptance of purposive interpretive

strategies; vi) a preference for standards over rules and for balancing approaches over

categorical ones; vii) the rejection of ‘autonomous’ conceptions of the law and an openness to

interdisciplinary perspectives.”

785 The six modalities are: “the historical (relying on the intentions of the framers and ratifiers

of the Constitution); textual (looking to the meaning of the words of the Constitution alone, as

they would be interpreted by the average contemporary ‘man on the street’); structural

(inferring rules from the relationships that the Constitution mandates among the structures it

sets up); doctrinal (applying rules generated by precedent); ethical (deriving rules from those

moral commitments of the American ethos that are reflected in the Constitution); and

prudential (seeking to balance the costs and benefits of a particular rule).”: Philip Bobbit,

Constitutional Interpretation (Oxford; Cambridge, Massachusetts:1991), pp 12 – 13

786 Note 343 above, paras 52 – 55.

214

powers.787

In Singapore, the People’s Action Party controls the legislature and

the executive. Given the judiciary’s interpretation of the Constitution, the

Parliament may enact any laws, including those taking away a person’s life.

That is wider than the Hobbessian sovereign’s authority because to Hobbes,

men’s right to life is inalienable.788

As far as the individuals’ rights are

concerned, the only limit to the Singapore Parliament’s law-making power is

that it may not derogate from the right not to be held in slavery, there being no

express provision in art 10(1) for such derogation.

In contrast, the situation in Hong Kong is in some ways similar to that

advocated by Locke: separation of legislative and executive powers,789

legislative power to be limited to those necessary for the public good;790

“the

end of Law is not to abolish or restrain, but to preserve and enlarge

Freedom”791

and the government holding powers as trustee.792

The social

contract, if the Basic Law is one, is between the sovereign of China and the

people of Hong Kong. Under the contract, the people do not yet have the

equal right to elect the legislature and executive in Hong Kong, let alone the

sovereign ruling from the Mainland. Without a fair election, the SAR

787

Thomas Hobbes, Leviathan, edited with an introduction by J.C.A. Gaskin (Oxford and

New York: Oxford University Press, 1996), Ch XVIII, paras 16 – 18 and Ch XX, para 18.

788 Ibid, Ch XIV, para 8. Jean Hampton argues that given the people’s self-defence right,

Hobbes’s social contract argument is invalid and the people cannot have instituted an absolute

sovereign – see Jean Hampton, Hobbes and the Social Contract Tradition (Cambridge, et al:

Cambridge University Press, 1986), pp 197-206, reproduced in Richard E. Flatman and David

Johnston (eds), Leviathan: Authoritative Text, Backgrounds, Interpretations (New York;

London: W.W. Norton & Co., 1997), pp 348-359.

789 John Locke, “The Second Treatise of Government: An Essay Concerning the True Original,

Extent and End of Civil Government” in Two Treatises of Government, edited with an

introduction and notes by Peter Laslett (Cambridge, New York, New Rochelle, Melbourne

and Sydney: Cambridge University Press, Student edition, 1988), Ch XII.

790 Ibid, Ch XI

791 Ibid, para 57.

792 Ibid, para 149. See also Laslett’s introduction at pp 113 – 117.

215

Government is holding powers on trust from the sovereign in Beijing more

than from the people of Hong Kong, despite the promises of “one country, two

systems” and “high degree of autonomy” promised in the Basic Law.

217

CHAPTER 9 –

PASSIVE VIRTUES AND MINIMALISM

IN SINGAPORE AND HONG KONG?

9.1 INTRODUCTION

In recognition of the representative role of the elected legislature in a

democratic society, to ameliorate the counter-majoritarian difficulty and to

avoid foreclosing a constitutional debate prematurely, Bickel advocates the

passive virtues, to be exercised by the judiciary, of deciding neither to validate

nor strike down contested legislation until the principle involved is ripe for

adjudication. For similar reasons and also taking into account the more

resources available to the legislature, Sunstein argues for minimalism – the

judiciary should make a constitutional decision not broader or deeper than

required by the facts of the case at hand. Both scholars contend that their

theories are both descriptive and prescriptive of the US judiciary over a

certain period. This chapter will discuss whether there is evidence of the

passive virtues, minimalism or other avoidance canon being practised by the

courts in Singapore and Hong Kong and if so, whether the practice is justified.

9.2 SINGAPORE

In Singapore, judicial minimalism is nowhere to be seen. What we

have seen in Part II – the literal meaning attached to the word “law” in Part VI

of the Constitution, the four-walled approach to foreign jurisprudence and the

rejection of the proportionality test in favour of the Wednesbury rationality

test – are all maximalist approaches, ie reasoning so broad that it effectively

218

bar, across the board, any judicial scrutiny of legislation. Bars, they are,

erected by the judiciary itself. The Singapore approaches illustrate Sunstein’s

point that minimalism does not mean judicial restraint and hence, by

implication, maximalism does not mean judicial activism. The maximalist

judicial decisions in Singapore belong to the category of “rule-bound

decisions that broadly validate possible practices”. 793

In the name of

democracy and the counter-majoritarian difficulty, they provide the legislature

with a carte blanche to do what it will with the individuals’ rights.

To be fair, the Singapore judiciary’s maximalism extends to cases

which do not favour the state. In Abdul Nasir bin Amer Hamasah v Public

Prosecutor,794

the CA could have disposed of the appeal against sentence on

the narrow and shallow ground that there was no mitigating factor to warrant

interfering with the trial judge’s sentence. Instead, apparently of its own

accord, it went into the question of whether the reference to “life

imprisonment” meant imprisonment for the duration of a personal’s natural

life or alternatively – as had been accepted by the courts including the CA, the

Prison Department, police officers and other law enforcement officers –

imprisonment for 20 years. It decided the former was the correct interpretation,

which however did not affect the instant case pursuant to the principle against

retroactivity. Also, in Chng Suan Tze v Minister of Home Affairs, the CA,

instead of striking down a preventive detention order on a narrow technical

ground, chose to do so on the additional ground that the subjective test

adopted by the court in the more than fifteen years before should be replaced

by the objective test, under which the executive had to satisfy the court that

such an order had in fact been based on grounds of national security.795

The

CA, to its credit, made such a decision based on stare decisis instead of

793

Case R. Sunstein, One Case At A Time: Judicial Minimalism on the Supreme Court

(Cambridge, Massachusetts; London: Harvard University Press, 1999), p 28.

794 Note 550 above and accompanying text.

795 Notes 324 - 327 and 558 above and accompanying texts.

219

dodging the issue and leaving it to the Privy Council, the then court of final

appeal, to confront the executive. The constitutional amendments subsequent

to Chng Suan Tze led to the only constitutional case, among those in the last

twenty years or so, in which the court avoided a constitutional issue. In Teo

Soh Lung v Minister of Home Affairs, the CA refrained from taking a view on

the potentially explosive question of whether there was any limit to the

Parliament’s power of constitutional amendment.796

Teo Soh Lung was a Singaporean version of the passive virtues.

However, while Bickel intends the court to play an educational role and

generate a public debate despite refusing a decision one way or the other, the

CA gave no clue as to what would be its preliminary, advisory opinions on the

question. The silence, when viewed against the maximalist stand taken by the

Singapore judiciary in nearly all other constitutional cases, led one to

speculate on the judges’ opinion in their heart of hearts.

9.3 HONG KONG

While Sunstein regards minimalism as “the most striking feature of

American law in the 1990s”,797

Hartmann J (as he then was), referring to the

US Supreme Court case Ashwander v Tennessee Valley Authority (1935) 297

US 288 as an example, opined that it “must be an almost universal rule of the

common law that courts should not anticipate a question of constitutional law

in advance of the necessity of deciding it”.798

Accordingly, he refused to come

to “a broad and definitive interpretation of the nature and effect, for all

796

Note 337 to 341 above and accompanying texts.

797 Sunstein (n 793 above), p xi.

798 Leung Kwok Hung v President of Legislative Council [2007] 1 HKLRD 387, para 43.

220

purposes, of art 74 [of the Basic Law]”799

and disposed of the case by

confining to the declaration that the rule being challenged was not

unconstitutional. There are numerous other examples of the courts refusing to

make broader or deeper decisions than required by the facts of the case at

hand.

In Bahadur, the CFA refrained from ruling whether the right to enter

and leave Hong Kong, guaranteed by BL 31 without any express provision as

regards restriction, could be subject to restriction.800

Even assuming the right

to be subject to restriction, the CFA held, section 11 (10) of the Immigration

Ordinance (Cap 115),801

when applied to a non-permanent resident whose

permission to enter had not yet expired, was unconstitutional because the

denial of entry amounted to destruction of his status as non-permanent

resident and not merely the restriction of his BL 31 right.802

The Court ruled

the section constitutional after reading down the provision to mean that it was

not applicable to a non-permanent resident (during the period when his limit

of stay had not yet expired) whose right to enter was guaranteed by BL 31.803

In Democratic Party v Secretary for Justice, the CFI adopted a “remedial

interpretation” of section 98(4) of the Companies Ordinance (Cap 32) to the

effect that the court might refuse to compel compliance with a request to

inspect a company’s register when the request amounted to an abuse of the

register.804

The host of “presumed innocent” cases discussed in section 8.1.4

above are also examples of the courts using narrow interpretation to save

otherwise unconstitutional statutes.

799

Ibid, para 44.

800 [2002] 2 HKLRD 775, para 38.

801 Section 11(10) reads: “Any permission given to a person to land or remain in Hong Kong

shall, if in force on the day that person departs from Hong Kong, expire immediately after his

departure.”

802 Bahadur (n 800 above), paras 37 – 38.

803 (2002) 5 HKCFAR 480, paras 38 – 42.

804 [2007] 2 HKLRD 804, paras 69 – 75.

221

There are, however, exceptions. In the famous Ng Ka Ling v Director

of Immigration,805

the CFA could have decided the case in favour of Ng Ka

Ling and others, who arrived in Hong Kong before Immigration (No 3)

Ordinance (which required a valid one-way permit issued by the mainland

authorities to be a pre-requisite for mainlanders to claim the right of abode in

Hong Kong) was enacted, on ground of the principle against retrospectivity.806

If it had done so, it would have avoided the broad and controversial

constitutional issue of whether the CFA could interpret BL 22(4) without

reference to the NPCSC. However, “(t)he applicants’ attack was not confined

to the retrospectivity issue”.807

Furthermore, the writing was on the wall that

other mainlanders entering Hong Kong illegally would likewise challenge the

constitutionality of the legislation. Since the CFA had heard full legal

arguments of the issue in Ng Ka Ling, it would save future resources for the

CFA to announce its decisions without another round of submissions in

another case.

In Mok Tai Kei v Constitutional Affairs Bureau of the HKSAR &

Others, the CA could have dismissed the application for judicial review on the

ground that the applicant did not have sufficient interest in the matter. Yet, it

went on to hold that the automatic election system, when there was only one

805

[1999] 1 HKLRD 315. See also section 4.2.2 above.

806 Albert H. Y. Chen, “The Interpretation of the Basic Law – Common Law and Mainland

Chinese Perspectives” (2000) 30 HKLJ 380, pp 428 – 429. Denis Chang, “The Reference to

the Standing Committee of the National People’s Congress under Article 158 of the Basic

Law: The Question of Methodology” in Johannes M. M. Chan, H. L. Fu and Yash Ghai (eds),

Hong Kong’s Constitutional Debate: Conflict over Interpretation (Hong Kong: Hong Kong

University Press, 2000), pp 143 – 150, at pp 146 – 147.

807 Chang (n 806 above), p 146. “Another ground was that the applicants could not validly be

deprived of their constitutionally protected right of abode which had already been conferred

on them by article 24(3) of the Basic Law on 1 July 1997.”: Ibid.

222

candidate, did not infringe the right to vote; nor was it unfair.808

In Secretary

for Security v Sakthevel Prababar,809

the CFA could have struck down the

Secretary’s decision not to grant refugee status on administrative law ground,

namely, she had not taken into account all relevant factors. Furthermore, by

the time the case was decided, the applicant had already been accepted by

Canada. However, the Court decided on a list of matters to be taken into

consideration and also the steps to take in assessing any torture claim.810

While the decisions in the two cases were broader than required by the facts of

the cases, they appeared to be necessary to avoid similar disputes from

reaching the court in future. In the latter case, the two sides were both

represented by teams of high calibre counsel, including two UK Queen’s

Counsel. It would be a waste of resources not to lay down general rulings

which would help the executive to deal with similar future applications in a

lawful manner.

9.4 CONCLUSION

If Bickel’s passive virtues amount to “the 100% insistence on

principles, 20% of the time”,811

what is practised in Singapore is “100%

insistence on principle, 99% of the time”. The principle involved is the

separation of powers without check-and-balance, resulting in unqualified

respect for the elected representatives’ decision. The remaining 1%, where the

principle was not applied, is represented by Teo Sok Lung (“deciding neither”

on the question of limit to constitutional amendment)812

and Taw Cheng Kong

(the only striking down case).813

If Bickel’s prudence is signified by his

808

[2005] 1 HKLRD 861

809 [2005] 1 HKLRD 289

810 Ibid, paras 52 – 60.

811 Gunther (n 133 above and accompanying text).

812 Note 796 above and accompanying text.

813 Note 422 above and accompanying text.

223

prevailing on judges not to move too far ahead of public opinions,

Singaporean judges display their prudence by adhering to what they see as the

elected representatives’ majority’s decisions. If Bickel believes in juricentrism,

Singaporean judges presumably side with the polycentrism of the New

Minimalism,814

except that while the New Minimalists preserve the political

branches’ prerogative to make constitutional decisions by making minimalist

decisions, Singaporean judges do so by making no constitutional decision

other than the maximalist principles purportedly based on democracy.

As Siegel observes and Sunstein tacitly admits,815

minimalist decisions

cannot always be identified. Minimalism / maximalism constitutes a

continuum. Before a decision can be labelled as minimalist, it will be

necessary to identify all possible grounds on which the court can dispose of

the case, list them in order of minimalism / maximalism and decide whether it

is closer to one end or the other of the spectrum. In practice, the litigating

parties may, instead of pursuing all lines of arguments, confine themselves to

the one or two which would give them the best chance of success. In the Hong

Kong cases discussed in section 9.3 above, minimalism or otherwise can be

identified because, from the judgments, other possible grounds for decision

have been argued but not adopted. The description minimalism / maximalism

as applied to the actual decision in a case is merely relative to the other

possible ground.

Hong Kong judges resort to the passive virtues and minimalism not so

much because of any counter-majoritarian difficulty or fear of reprisal but

apparently, simply because of the “almost universal rule of the common law”

alluded to by Hartmann J.816

The rule – which reflects the prudence of

avoiding unnecessary decisions rather than the prudence of waiting for a

814

For juricentrism and polycentrism, see section 3.2.5 above.

815 See section 3.3.3.2 above.

816 See n 798 above and accompanying text.

224

principle to ripe – is applied discriminately. The exceptions discussed in

section 9.3 suggest that occasionally, the courts do take broader decisions than

required by the facts of the instant case but they do so only in some of the

circumstances in which, even Sunstein would agree, maximalism is preferred

to minimalism.817

Lisa A. Kloppenberg, who is critical of the US Supreme Court’s use of

the avoidance techniques in general,818

is particularly concerned about

narrowing statutory interpretation. She opines that when the court applies the

narrowing statutory interpretation, it in effect rewrites the legislation and

decides “constitutional issues on the merits without a full airing of the issue,

without sufficient reasoned elaboration, and without purporting to rule on the

merits at all”.819

The relevant cases discussed in section 9.3 above suggest the

concern to be unjustified. Far from judicial legislation, they illustrate that

narrow or remedial interpretation merely rectified the legislation concerned in

a speedy manner which would incur no further cost and minimise the

disruption to law enforcement.

817

See notes 129 and 130 above and accompanying text for Sunstein’s view on such

circumstances.

818 Lisa A. Kloppenberg, Playing It Safe: How the Supreme Court Sidesteps Hard Cases and

Stunts the Development of the Law (New York: New York University Press, 2001).

819 Lisa A. Kloppenberg, “Does Avoiding Constitutional Questions Promote Judicial

Independence?” (2006) 56 Case Western Reserve Law Review 1031, p 1038.

225

CHAPTER 10 –

CONSTITUTIONAL REVIEW JUSTIFIED IN

SINGAPORE AND HONG KONG?

10.1 INTRODUCTION

As discussed in Part II, the constitutional review of legislation does not,

in practice, exist in Singapore. Citing reasons essentially the same as the

counter-majoritarian difficulty and Waldron’s process-based argument, the

judiciary does not question the propriety of any statute enacted by the

Parliament. In contrast, the Hong Kong judiciary does conduct rigorous

review of the constitutionality of legislation. As discussed in section 3.4.5, the

core of Waldron’s case against judicial review is that in a society where four

conditions are satisfied – democratic political institutions, independent

judiciary administering rule of law, government official and most society

members committed to rights and disagreement about rights – decisions made

through the democratic institutions are more politically legitimate than those

made by appointed, non-representative judges regardless of the contents of the

decisions. Based on the same four assumptions made by Waldron –

especially assumptions (1) and (3), which appear to be the operative ones in

Waldron’s argument – Fallon borrows the multiple-veto theory from Cross

and justifies judicial review on the ground that it is “more morally

troublesome for rights to be underenforced than overenforced” and “better to

err on the side of too much rather than too little protection of rights under

conditions of reasonable disagreement”. 820

In this chapter, I shall examine

whether the four conditions assumed by Waldron and Fallon exist in

820

Richard H. Fallon, Jr, “The Core of An Uneasy Case for Judicial Review” (2008) 121

Harvard Law Review 1693, p 1708. See also sections 3.4.6 and 3.4.7 above.

226

Singapore and Hong Kong and if not, whether constitutional review in the two

places can be justified by other arguments.

10.2 SINGAPORE

10.2.1 Waldron’s argument applied?

10.2.1.1 Political institutions democratic?

On the first condition, Waldron, like Bickel, accepts that in the real

world, democracy is not perfect and democratic decisions are not perfectly fair

(ie all individuals have equal participation in the decision-making process)

and only reasonably fair.821

Even with this qualification, Singapore does not

satisfy Waldron’s first assumption. True, Singapore’s political system

possesses most of the features mentioned by Waldron: universal adult suffrage,

regular election, legislature accustomed to dealing with difficult issues

including those relating to justice and social policy, elaborate and responsible

procedures for lawmaking, legislators thinking themselves as representatives

and the existence of political parties.822

However, the system is not, as

required by Waldron, in “good working order”. He does not elaborate on what

the phrase means except to say that it “goes to process values rather than

outcome values”.823

It would be safe to take it that he means, by that phrase,

that the system will be implemented in such a way that every member of the

society has an equal opportunity to elect and be elected. Otherwise, the system

and the decisions coming out of it can hardly qualify as being fair.

821

Jeremy Waldron, “The Core of the Case Against Judicial Review” (2006) 115 Yale Law

Journal 1346, pp 1386 – 1389.

822 See ibid, p 1361 for Waldron’s description of “democratic institutions”.

823 Ibid, p 1362.

227

Singapore’s legislature has been dominated by the People’s Action

Party since the city-state’s independence in 1965. This is, no doubt, due

mainly to the party’s success in running an efficient, corruption-free

government which solves the problems of a heterogeneous, multi-racial

society and raises the place with no natural resource (except a deep-water

harbour located strategically in international commerce) to one of the most

affluent societies in the world. The party’s dominance, however, has come

about partly because of its suppression of the opposition politicians through

defamation proceedings (sections 6.2.3.2.2 and 8.1.1.3 above).824

In addition,

the PAP government uses its overwhelming majority in the Parliament to

introduce “electoral innovations” 825

to gain unfair advantage over the

opposition political parties. Certain single-member constituencies have been

merged to form Group Representation Constituencies (“GRC”). For a GRC, a

political party has to field a three-, five- or six- person team, which must

include a designated minority (Malay, Indian, or Eurasian). Under the

arrangement, which is for the express purpose of ensuring minority

representation, the other smaller parties would have difficulty in finding

sufficient competent and suitable candidates to form a team and also,

difficulty in securing the number of votes required to win any seat.826

Electoral boundaries are redrawn at short notice, creating time pressure on the

other parties to change their plans.827

In the government’s programme for

upgrading of public housing estates, which provide homes to 90% of the

824

See also Chris Lydgate, Lee’s Law: How Singapore Crushes Dissent (Melbourne: Scribe

Publications, 2003).

825 Diane K. Mauzy and R. S. Milne, Singapore Politics Under the People’s Action Party

(London and New York: Routledge, 2002), Ch 11: “Elections, Electoral Innovations, and the

Opposition”.

826 Ibid, pp 145 – 146. See also Sylvia Lim, “The Future of Alternative Party Politics: Growth

or Extinction?”, Ch 14 in Kenneth Paul Tan (ed), Renaissance Singapore? Economy, Culture

and Politics (Singapore: NUS Press, 2007), p 242.

827 Lim (n 826 above), p 242.

228

population, priority was tied to electoral support for the PAP.828

There have

also been complaints about voting arrangements which handicap the

opposition parties.829

Fairness and equal participation in decision-making entails the

freedom of expression, especially on political affairs. It appears that even PAP

members may have little influence over the government.830

In any case, even

if an adequate network of tapping grassroots opinions did exist, it would not

be an adequate substitute for free, public debates. The government may

genuinely wish to hear dissenting views and “(p)rovided a criticism is

honestly made and backed by convictions, [it is doubtful] that the sky will

come tumbling down on the commentator”.831

However, the fine line between

criticising a policy (which is tolerated) and criticising the government or

government officials (which is not tolerated) can easily be crossed

inadvertently.832

Preventive detention under the Internal Security Act (section

4.1.2 above), censorship of books, licensing requirement for public assemblies

(sections 5.2.3.3 and 8.1.1.1 above), laws of contempt and defamation

(sections 6.2.3.2 and 8.1.1.3 above) and less formally, the use of “out of

828

Cherian George, Singapore: The Air-conditioned Nation (Singapore: Landmark Books,

2000), pp 89 – 90.

829 Diane K. Mauzy, “Electoral Innovation and One-Party Dominance in Singapore”, Ch 11 in

John Fuh-sheng Hsieh and David Newman (eds), How Asia Votes (New York: Chatham

House Publishers of Seven Bridges Press, 2002).

830 See Mauzy and Milne (n 825 above), Ch 4: “The People’s Action Party: The Structure and

Operation of a Dominant Party”, pp 42 – 43 and 49 – 50.

831 Warren Fernandez, Thinking Allowed? Politics, Fear and Change in Singapore (Singapore:

SNP International, 2004), p 11.

832 For an attempt to determine the government’s toleration level, see Tan Chong Kee, “The

Canary and the Crow: Sintercom and the State Tolerability Index”, Ch 9 in Renaissance

Singapore? (n 826 above).

229

bound markers” since 1994 833

all add up to create a strong chilling effect. In a

forum organised by the Feedback Unit of the government, many of the 150

participants agreed that “(w)hether real or perceived, … the climate of fear is

a root cause for political apathy in Singapore”.834

We may sum up the seeming democracy in Singapore by borrowing

Tan’s observation: “The consensus in Singapore does not equate with the

legislative view, which may not be representative of the majority opinion in a

one-party-dominant state like ours, and in which the party whip may not be

lifted and all members may be compelled to vote in a particular manner.”835

In

the absence of democratic institutions “in good working order”, the counter-

majoritarian difficulty does not arise. That in itself would mean the judicial

restraint in Singapore cannot stand on Waldron’s objection to judicial review.

For the sake of completeness, I shall examine whether the other assumptions

in Waldron’s case are satisfied.

833

The PAP government opines that persons who do not openly join and support a political

party should not comment on political affairs. When such persons express any views against

the government, it responds with “out of bounds markers”, ie stinging public rebuttals aimed

at making the persons lose face. “The OB markers represent a trial-and-error approach that

allows for more political commentary and gradually increasing openness, and the approach is

certainly less severe than using some of the tough laws that are on the books.”: Diane K.

Mauzy and R. S. Milne, Singapore Politics Under the People’s Action Party (London and

New York: Routledge, 2002), p 142. See also Kirpal Singh, “Keeping Vigil: Openness,

Diversity and Tolerance”, Ch 7 in Renaissance Singapore? (n 826 above), pp 115 – 116.

834 “ ‘Climate of fear’ a hot feedback topic”, The Strait Times (Singapore), 15 October 2004.

835 Tan Seow Hon, “Constitutional Jurisprudence: Beyond Supreme Law – A Law Higher

Still?”, Ch 3 in Li-ann Thio and Kevin Y. L. Tan (eds) Evolution of a Revolution: Forty Years

of the Singapore Constitution (Milton Park, Abingdon; New York, N.Y., 2009).

230

10.2.1.2 Rule of law administered by politically independent

judiciary?

Peerenboom divides the conceptions of rule of law into two general

types: thin and thick. “A thin conception stresses the formal or instrumental

aspects of rule of law – those features that any legal system allegedly must

possess to function effectively as a system of laws, regardless of whether the

legal system is part of a democratic or non-democratic society, capitalist,

liberal or theocratic.”836

The constitutive elements of this thin conception 837

overlap with Fuller’s internal morality of the law 838

and with Dicey’s rule of

law 839

except that Dicey’s reference to judicial protection of the personal

liberty, freedom of discussion and freedom of public meeting do not form part

of Peerenboom’s thin conception. Peerenboom’s thick or substantive

conception consists of the thin concept plus “elements of political morality

such as particular economic arrangements …, forms of government … or

836

Randall Peerenboom, “Varieties of Rule of Law: An Introduction and Provisional

Conclusion”, Ch 1 in Rendall Peerenboom (ed), Asian Discourses of Rule of Law: Theories

and Implementation of Rule of Law in Twelve Asian Countries, France and the U. S. (London

and New York: Routledge, 2004), p 2.

837 Ibid, pp 2 – 3. The elements are: meaningful restraints on state actors; rules and norms

determining the institutions with authority to make laws; laws to be made public and readily

accessible; laws to be generally and equally applicable to different people; laws to be clear,

consistent, stable and generally prospective; narrow gap between the laws on the book and

those actually applied; laws to be reasonably acceptable to those affected.

838 Lon L. Fuller, The Morality of Law (New Haven and London: Yale University Press,

Revised Ed, 1969), Ch II: “The Morality That Makes Law Possible”: law to be general,

promulgated, prospective, clear, consistent, possible to comply with, constant through time

and congruent between official action and declared rule.

839 A. V. Dicey, An Introduction to the Study of the Law of the Constitution (London:

Macmillan, 10th

edn, 1959), Ch IV: “The Rule of Law: Its Nature and General Applications”:

supremacy of the law; man not punishable except for breach of law established in the ordinary

legal manner before the courts; equality before the law; and judicial protection of personal

liberty, freedom of discussion and freedom of public meeting.

231

conceptions of human rights …”.840

Waldron apparently intends the rule of

law in his second assumption to refer to the thin conception since he has

included the rights commitment as a separate condition on which judicial

review is not justified.

It appears that this thin conception of the rule of law does exist in

Singapore. Putting aside what we have seen in Chapter 4 about the de facto

lack of limit to the Parliament’s legislative power, the state actors – including

elected politicians and appointed officials – are restrained by the criminal and

civil laws, when they act in their private or public capacities. Silverstein

suggests that Singapore satisfies Fuller’s internal morality of law, which

appears to be all that required to win international investors’ confidence in its

adherence to the rule of law.841

We may conclude from Part II of this thesis

that some laws in Singapore are less than just but it cannot be denied that they

“(a)t minimum, … [promise] some degree of predictability and some

limitation on arbitrariness, and hence some protection of individual rights and

freedoms”.842

Accepting that the thin rule of law does exist in Singapore, is it

administered by an independent judiciary as required by Waldron? Explaining

judicial independence, Vanberg identifies two dimensions. “At the broadest

level, the ideal of judicial independence expresses the aspiration that judicial

decisions should not be influenced in an inappropriate manner by

840

Peerenboom (n 836 above), p 4.

841 Gordon Silverstein, “Singapore: The Exception That Proves Rules Matter”, Ch 3 in Tom

Ginsburg and Tamir Moustafa, Rule by Law: The Politics of Courts in Authoritarian Regimes

(New York: Cambridge University Press 2008).

842 Peerenboom (n 836 above), p 6.

232

considerations judged to be normatively irrelevant.”843

To insulate judges

from such possible inappropriate influence from the policy makers requires

the safeguard of a formal, institutional dimension, such as security in tenure of

office.844

In Singapore, the appointment on three-year contract terms of Chief

Justices beyond the normal retirement age of 65, the transfer from the bench a

Senior District Judge who acquitted Jeyaratnum in a criminal trial and the

substantial damages awarded in PAP leaders’ defamation proceedings against

their political rivals do give rise to reasonable suspicion about judges being

subject to undue influences.845

However, this is not the place to conduct a normative appraisal of the

Singapore judiciary’s performance. Here, we are merely addressing the

question whether the Singapore judiciary is, descriptively, that referred to in

Waldron’s second assumption, which includes: the judiciary is capable of

conducting judicial review of executive acts and constitutional review of

legislation, acts in response to claims brought by particular litigants,

adjudicates in adversarial proceedings, practises staire decisis and is manned

by experienced lawyers.846

The Singapore judiciary does answer such

descriptions. By “politically independent”, Waldron means merely that the

judges are appointed and not elected. It would appear that for the purpose of

his second assumption, the requirement of being “politically independent” is

satisfied so long as the judiciary interprets and enforces the legislature’s

decisions faithfully according to legal “consideration judged to be normatively

relevant” and at the same time, refuses to enforce any rule which is not “the

843

Georg Vanberg, “Establishing and Maintaining Judicial Independence”, Ch 7 in Keith E.

Whittington, Keith E., R.Daniel Kelemen, and Gregory A. Caldeira (eds), The Oxford

Handbook of Law and Politics (Oxford: Oxford University Press 2008), p 100.

844 Ibid.

845 International Bar Association Human Rights Institute, Prosperity Versus Individual Rights?

Human Rights, Democracy and the Rule of Law in Singapore (London: International Bar

Association, July 2008), pp 49 – 62. See also Silverstein (n 841 above), pp 83 – 86.

846 “The Core of the Case Against Judicial Review” (n 821 above), pp 1363 – 1364.

233

law” in the positivist sense of that term.847

The case analyses in Part II above

contain nothing to show that the Singapore judiciary is not “politically

independent” in this particular sense. The literalism, textualism and judicial

deference revealed in the analysis appear to represent what, according to

Waldron’s second assumption, the judiciary is doing and should do.

Singapore’s judicial and legal system consistently occupies very high

positions in international rankings, 848

which presumably reflects its

predictability, limited arbitrariness and efficient and decision making. The

ranking is much lower when it comes to participation in selecting the

government and enjoyment of free speech.849

That relates not to Waldron’s

second assumption but to the third one concerning the society’s rights

commitment.

10.2.1.3 Officials and most members of society committed to

rights?

Waldron’s third assumption consists of a rights-committed society

with three elements: (1) a written bill of rights; (2) awareness of the

worldwide consensus on human rights; and (3) officials and members of the

society take rights seriously: keep views of rights under constant debate and

alert to issues of rights when making social decisions.850

The first element is

satisfied by Part IV of the Constitution of Singapore. The restriction of press

freedom and control of the media 851

appear to inhibit criticisms of the

847

See Vanberg (n 843 above and accompanying text).

848 IBA’s July 2008 Report (n 845 above), pp 21 – 22.

849 Ibid.

850 “The Core of the Case Against Judicial Review” (n 821 above), p 1365.

851 IBA’s July 2008 Report (n 845 above), pp 39 – 45. See also Garry Rodan, Transparency

and Authoritarian Rule in Southeast Asia (London and New York: Routledge, 2004), Ch 4

“Keeping Civil Society at Bay: Media in Singapore After the Crisis”.

234

Singapore government only. The media publishes world news freely.

Singaporeans have wide international contacts. The second element, therefore,

is also satisfied.

Not the third one, however. It has been shown in Chapter 8 that the

civil rights, in particular the right to freedom of expression, fall well below the

standards enjoyed in the major common law jurisdictions. It suggests that the

legislature and the executive either do not care or are not alert to issues of

rights in their decision-making. The laws impinging on the freedom of

expression and the government’s harshness towards criticisms have apparently

resulted in such a chilling effect as to cause political apathy among ordinary

members of the society. 852

Singh observes that the “heartlanders”, ie 90% of

the population who are living in public housing estates situated in the

heartland of the residential areas, seem to agree with Lee Kuan Yew that the

US and European kinds of freedoms, particularly the freedom of expression,

are not yet ripe for Singapore.853

Tan’s observation is that “(i)n the popular

imagination, the dominant image of the Singaporeans has been one who

remains interested in ‘politics’ not to pursue the larger ideals that govern

questions of public concern, but to secure maximum material benefit for the

self”.854

Given the attitude of the officials as well as most members of the

society, Singapore belongs to Waldron’s “non-core cases societies in which

the commitment to rights is tenuous and fragile”.855

852

See note 834 and accompanying text.

853 Singh (n 833 above), p 115.

854 Kenneth Paul Tan, “New Politics for a Renaissance City?”, Ch 2 in Renaissance Singapore?

(n 826 above), p 21.

855 “The Core of the Case Against Judicial Review” (n 821 above), p 1366.

235

10.2.1.4 Disagreements about rights?

Waldron’s fourth assumption is that within a general commitment to

rights, there exist disagreements about the central applications, and not just

marginal applications, of rights. Examples in the United States include

abortion, affirmative action and regulation of speech and spending in electoral

campaigns.856

Given the absence of a general commitment among the

government officials and most members of the society, one is tempted to

conclude that the fourth assumption is not satisfied. However, such a

conclusion does not do justice to those Singaporeans – notably the opposition

politicians, academics and journalists – who have been frequently publishing

dissenting views about the human rights situation in Singapore. These are

influential people, whose views will no doubt be taken into account – though

not necessarily adopted at the end – by the government when deciding on

policies. Waldron’s purpose of his fourth assumption is to make the point that

the eventual legislative decisions already strike a right balance among the

reasonable disagreements in the society and hence there is no place for the

appointed judiciary to interfere with it. For that purpose and without implying

that judicial restraint is justified, I would regard the fourth assumption to be

satisfied in Singapore. However, if Waldron’s point is that the disagreements

would result in pluralism in the decision-making process, this does not appear

to have happened in Singapore so far.

10.2.2 Fallon’s argument applied?

Since Singapore does not satisfy Waldron’s first and third assumptions,

it belongs to what he refers to as a non-core society, to which his argument

against judicial review does not apply. That does not mean that the institution

is necessarily justified. Let us see whether such justification can be provided

856

Ibid, p 1367.

236

by Fallon’s argument. The answer, I am afraid, is in the negative. Fallon’s

argument is also based on the same four assumptions. In particular, since the

third assumption concerning a general commitment to rights is not satisfied,

there is no ground for believing that it is morally better to err on the side of

overenforcement than underenforcement in the protection of rights.

10.2.3 Case for judicial review

If it is agreed that Singapore’s present legislature and executive are not

democratically elected because of the PAP’s manipulating the election system

and suppressing the freedom of expression, the government’s moral

legitimacy is in doubt. So are the decisions made by the government,

including the appointments to the judiciary. The government as a whole

cannot be regarded to have received the consent of the people. However, to

invalidate all the existing governmental institutions would mean the place

reverting to the state of nature described by Hobbes and Locke. As the two

thinkers argue, the people would rather sacrifice part of their natural freedoms

in exchange for security and stability. The doctrine of necessity dictates that as

a transitional arrangement, all existing institutions should continue. The

ultimate aim is to modify them to the extent that the government can be

genuinely regarded to be the people’s representatives.

The work involved cannot be fully entrusted to the existing legislature

because it may, and probably will, act on its members’ self-interest. The

Elected Presidency, created primarily for the purpose of checking the possible

mismanagement by an “irresponsible government” of the country’s reserve,

does not fit into such democracy building work. First, the functions on which

the President may act in his own discretion 857

does not cover most of the

matters referred to in section 10.2.1.1 above as impeding democracy.

Secondly, the stringent requirements for a person to become a candidate “not 857

Art 21(2) of the Constitution of Singapore.

237

only make the office of president fundamentally elite, but are also likely to fail

its objectives”.858

Thirdly, the pre-qualification of candidates conducted by the

Presidential Elections Committee under art 19(2) of the Constitution and

section 8 of the Presidential Elections Act 1991 “appear(s) to enhance the

likelihood of selecting candidates who are most unlikely to fulfill these

objectives of [the candidates being politically neutral and fiercely

independent]”.859

As a result, “in the guise of the separation of powers, the

institution provides merely the semblance of an additional safeguard” 860

and

the aura of legitimacy from the elective element “masks the concentration of

power and the perpetuation of the political status quo”. 861

In the

circumstances, the judiciary, being the “least dangerous to the political rights

of the constitution … because it will be least in a capacity to annoy or injure

them” and having “no influence no influence over either the sword or the

purse” and “neither FORCE nor WILL, but merely judgment”, 862

appears to

be the only appropriate party to monitor the political branches during this

transitional period and to contribute to democracy building by striking down

any legislative or executive act which inhibits the people from exercising their

right to elect their representatives in compliance with the principle of fairness.

During this transitional period, the judiciary should exercise its

invalidating power in respect of the democracy-impeding measures only. The

idea is that when the reform is completed and truly democratic institutions are

858

Kevin Tan, “The Presidency in Singapore: Constitutional Developments”, Ch 3 in Kevin

Tan and Lam Peng Er (eds), Managing Political Change in Singapore: The Elected

Presidency (London and New York: Routledge, 2004), p 70.

859 Ibid, p 72.

860 Thio Li-ann, “The Elected President and the Legal Control of Government: Quis Custodiet

Ipsos Custodes?”, Ch 5 in Tan and Lam (eds) (n 858 above), p 134.

861 Ibid.

862 Alexander Hamilton, “Federalist 78” in Alexander Hamilton, James Madison and John Jay,

The Federalist, edited with Introduction and Historical Commentary by J. R. Pole

(Indianapolis and Cambridge: Hackett Publishing Co., 2005), pp 411 – 418, at p 412.

238

in place, the people can, through deliberative democracy, decide on the

priority of the individuals’ rights (not only those conducive to democracy) vis-

à-vis other values in a democratic society. In case the democratic decision

were reached that such rights are trumps, it would provide the justification for

judicial review to continue and extend beyond the representation-reinforcing

rights. That should not, however, preclude the people from dropping the

strong judicial review in favour of a weak one or even non-judicial means,

such as bi-cameralism to police the constitutional limits of the democratically

elected legislature.

10.3 HONG KONG

10.3.1 Waldron’s argument applied?

10.3.1.1 Political institutions not democratic

The political structure in Hong Kong during the colonial days was

undemocratic.863

When sovereignty reverted to China on 1 July 1997, the

Chief Executive replaced the Governor as head of the executive authorities of

the HKSAR Government. The English title of the legislature remained

863

The Governor, being the head of the executive and until 1988 also the President of the

Legislative Council (“LegCo”), was appointed by the British government. The first elections

to the LegCo – being indirect elections through electoral colleges and functional

constituencies – were held in 1985 to fill twenty-four of the fifty-seven seats, the remainders

being either government officials or appointed by the Governor. The first direct elections on

geographical basis, which filled eighteen of the sixty seats, were conducted in 1991. By 30

June 1997, directly elected members occupied only one-third of the sixty LegCo seats, the

remaining two-thirds being elected indirectly through electoral colleges (10 seats) and

functional constituencies (20 seats): see Norman Miners, The Government and Politics of

Hong Kong (Hong Kong: Oxford University Press, 5th edn, 1998), Ch 8: “The Legislative

Council: Composition and Passing of Ordinances”.

239

unchanged. The respective methods for selecting the first two CEs are

prescribed in Annex I of the Basic Law and the respective methods for

forming the first three terms of the LegCo respectively are prescribed in

Annex II. These methods are undemocratic too. However, BL 45(2) 864

and

BL 68(2), 865

read in conjunction with the two annexes, mean to many,

including the author of this thesis, that “the ultimate aim” of democratic

election “by universal suffrage” to both institutions would be achieved in 2007

and 2008 respectively. The “principle of gradual and orderly progress” stated

in the two provisions, it is thought, is satisfied by the gradual and orderly

changes set out in Annexes I and II respectively. That, unfortunately, turned

out to be wishful thinking. On 26 April 2004, the NPCSC decided, by way of

interpretation of Annexes I and II, that:

(a) the election of the third CE to be held in 2007 “shall not be by

means of universal suffrage”;866

and

(b) the election of the fourth term of the LegCo to be held in 2008

“shall not be by means of an election of all the members by

universal suffrage” and “the ratio between members returned

by functional constituencies and members returned by

864

BL 45(2): “The method for selecting the Chief Executive shall be specified in the light of

the actual situation in the Hong Kong Special Administrative Region and in accordance with

the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief

Executive by universal suffrage upon nomination by a broadly representative nominating

committee in accordance with democratic procedures.”

865 BL 68(2): “The method for forming the Legislative Council shall be specified in the light

of the actual situation in the Hong Kong Special Administrative Region and in accordance

with the principle of gradual and orderly progress. The ultimate aim is the election of all the

members of the Legislative Council by universal suffrage.”

866 Article 1 of “Decision of the Standing Committee of the National People’s Congress on

issues relating to the methods for selecting the Chief Executive of the Hong Kong Special

Administrative Region in the year 2007 and for forming the Legislative Council of the Hong

Kong Special Administrative Region in the year 2008”.

240

geographical constituencies through direct election, who shall

respectively occupy half of the seats, is to remain

unchanged”.867

The NPCSC also decided that subject to the above constraints,

“appropriate amendments that conform to the principle of gradual and orderly

progress may be made” to the CE election in 2007 and LegCo election in

2008.868

In 2005, the Government proposed a limited reform package to the

election methods but failed to gain the votes of two-thirds of the legislators, as

required under BL 159 for amendment of the Basic Law, for it to be adopted.

869 On 29 December 2007 the NPCSC decided that universal suffrage would

not be introduced in the two elections held in 2012. However, universal

suffrage for CE election “may be implemented” in the year 2017, to be

followed by universal suffrage for election of all LegCo members.870

In June

2010, the LegCo passed by two-thirds majority the HKSARG’s proposals to

867

Ibid.

868 Article 2 of NPCSC’s Decision (n 866 above).

869 The package included an increase of five directly elected seats in the LegCo, which would

be matched by five additional functional constituency seats to be elected by the District

Councillors. Also, the 800-member Election Committee stated in Annex I for CE election

would be expanded to 1,600 members. Twenty-three pro-democracy legislators voted en bloc

against the proposal after the Government rejected their demands for (a) the abolition of

appointed District Councillors and (b) a roadmap and timetable for full democracy: see Ma

Ngok, “Democratic Development in Hong Kong: A Decade of Lost Opportunities”, Ch 1 in

Joseph Y. S. Cheng, The Hong Kong Special Administrative Region in Its First Decade (Hong

Kong: City University of Hong Kong Press, 2007) and Carine Lai and Christine Loh, From

Nowhere to Nowhere: A Review of Constitutional Development: Hong Kong – 1997 – 2007

(Hong Kong: Civic Exchange, 2007), Ch 6; “The Fifth Report (2005)”.

870 “Decision of the Standing Committee of the National People’s Congress on issues relating

to the methods for selecting the Chief Executive of the Hong Kong Special Administrative

Region and for forming the Legislative Council of the Hong Kong Special Administrative

Region in the year 2012 and on issues relating the universal suffrage”.

241

amend the methods to elect the CE and form the LegCo in 2012.871

The

amended methods, which will have to be approved by the NPC pursuant to BL

159, represent a step forward but are still some way short of full democracy.

The existing method for CE election is undemocratic because there is

very limited elective element in the 800-member Election Committee. Though

some of them are elected based on “one person one vote” (eg representatives

of teachers, lawyers and accountants), the vast majority of adults in Hong

Kong have no vote in the formation of the Committee. For LegCo, half of the

sixty seats are directly elected by universal suffrage on geographical basis

through proportional representation. The election of the remaining thirty

functional constituency seats suffers from similar inequalities as the Election

Committee.872

There is also the procedure in enacting legislation. Under BL 74, the

CE’s consent is required for a LegCo Member to introduce any bill relating to

government policies. Hence, from the legal point of view, the CE elected by

the “small circle” may block any proposed legislation relating to government

policies even if it is supported by all the LegCo Members. For a bill

introduced by the executive, rule 57(6) of the LegCo’s Rule of Procedure,

made under BL 75, provides that a Member has to obtain the CE’s written

consent before proposing any committee stage amendment (“CSA”) which has

a charging effect on the public funds.873

Furthermore, under Annex II, the

passage of any CSA proposed by a Member requires a simple majority vote of

each of the two groups of members present: those returned by geographical

constituencies through direct election and those returned by functional

871

Hong Kong (China) Official Record of Proceedings for sitting from 23 to 25 June 2010, pp

9727 – 10339.

872 See Simon N. M. Young, A Critical Introduction to Hong Kong’s Functional

Constituencies (Hong Kong: Civic Exchange, 2004), pp 54 – 55 for the systematic

inequalities arising from the functional constituencies.

873 Leung Kwok Hung v President of Legislative Council [2007] 1 HKLRD 387

242

constituencies. Hence, a Member’s proposed CSA can be defeated even if it

receives the support of all thirty members in the first group and fourteen of the

thirty members in the second group.

It is true that for any contested legislative proposal, the executive as

well as the legislature conduct wide public consultations and the people do

speak up through the print media, radio phone-in programmes, internet and

public demonstrations. That, however, does not adequately compensate for the

structural inequalities in the CE and LegCo election methods and in the

legislative procedure. Hence, Hong Kong cannot be regarded to satisfy the

first assumption behind Waldron’s objection to judicial review.

10.3.1.2 Rule of law administered by politically independent

judiciary

The judicial decisions discussed in Part II will, it is hoped, constitute

sufficient evidence that thick rule of law exists in Hong Kong and is

administered by a politically independent judiciary. There have been several

cases which cause commentators to suspect that the CFA is being deferential

to the Central Government or HKSAR Government, namely the rulings

concerning the NPCSC’s power of interpreting the Basic Law (section 4.2.5),

the constitutionality of the legislation making flag desecration an offence

(sections 6.3.2.2 and 7.3.2.1 ) and the constitutionality of the notification

scheme for public assemblies (section 7.3.2.2 ). I hope the defence I have

mounted in those sections has shown that there are sound legal reasons for

those rulings. Or, even if my defence has been unsuccessful, there is certainly

nothing to suggest that the Hong Kong judiciary, in particular the CFA, has

been “influenced in an inappropriate manner by considerations judged to be

normatively irrelevant”.874

After an appraisal of constitutional review in the

874

Vanberg (n 843 above).

243

HKSAR’s first decade, Professor Johannes Chan concludes that “by and large,

fundamental rights have been upheld in the last decade. The judiciary is

conscious of its role of being the guardian of human rights, and has adopted a

liberal approach to constitutional interpretation”.875

As regards the institutional dimension, BL 85 provides that the courts

“shall exercise judicial power independently, free from interference”.

“Judges … shall be appointed by the Chief Executive on the recommendation

of an independent commission composed of local judges, persons from the

legal profession and eminent persons from other sectors.” (BL 88). The

commission for this purpose is the Judicial Officers Recommendation

Commission established under the Judicial Officers Recommendation

Commission (Cap 92). Chaired by the Chief Justice, the Commission’s

membership consists of the Secretary for Justice, two judges, one barrister,

one solicitor and three persons not connected with legal practice (section 3(1)

of Cap 92). The CE shall consult the Bar Council of the Hong Kong Bar

Association and the Council of the Law Society of Hong Kong regarding the

appointment of the barrister and the solicitor respectively and the two bodies

may recommend other persons than those proposed by the CE (section 3(1A)

and (1B) of Cap 92). Regular judges from the CFA down to the District

Courts are appointed until retirement age.876

They may only be removed for

inability to discharge their duties or for misbehaviour in accordance with the

procedure laid down in BL 89 and in the case of the Chief Justice and regular

judges of the CFA, in accordance with section 14(6) to (10) of the Hong Kong

Court of Final Appeal Ordinance (Cap 484).

875

Johannes Chan, “Basic Law and Constitutional Review: The First Decade” (2007) 37

Hong Kong Law Journal 407, at p 445.

876 Peter Wesley-Smith, “Individual and Institutional Independence of the Judiciary”, Ch 5 in

Steve Tsang (ed), Judicial Independence and the Rule of Law in Hong Kong (Hong Kong:

Hong Kong University Press, 2001), p 109.

244

The above provisions apply to the regular judges. The Hong Kong

judiciary includes some non-permanent judges giving rise to unsatisfactory

aspects. The CE may appoint eligible lawyers to be recorders of the Court of

First Instance for regular periods, for example one month per year. They will

return to their private practice afterwards. A perceived, even if not real,

problem arises over the possibility of their being pressured by their clients in

private practice to decide, as a recorder, an issue in a particular manner. There

is doubt as to whether they can constitute an independent and impartial

tribunal.877

The CJ may, on his own, appoint Deputy Judges of the Court of

First Instance (section 10(1) of High Court Ordinance (Cap 4)) and the

practice for District Court judges to act as Deputy Judges before confirmation

as CFI Judge creates the possibility – though, again, only perceived – of their

being influenced by the CJ in their judicial decisions.

A special feature which contributes to judicial independence is that as

permitted by BL 92 and section 16(1)(c) of the Hong Kong Court of Final

Appeal Ordinance (Cap 484), the court hearing a final appeal may include a

non-permanent judge from other common law jurisdictions. The list of such

non-permanent judges include highly respected judges in the House of Lords

and the High Court of Australia.

Judicial independence also entails financial security. In the past,

judges’ pay scales were linked to – and adjusted annually on the same line

as – those for the civil service. The judiciary’s recommendation in 2008 to

enact legislation to prohibit absolutely the reduction of judges’ pay was

declined by the government. Instead, it was decided that the annual review of

judicial pay scale be conducted by the existing Standing Committee on

877

Ibid, p 117.

245

Judicial Salaries and Conditions and Service.878

In 2009, for the first time, the

government, based on the Committee’s recommendation, decided to freeze the

judicial pay scale though, for the civil service, an about 5% reduction was

contemplated to take account of pay trend in the private sector.879

In a book chapter published in 2001 which reviews also the financial

security and resources for the judiciary and other aspects of judicial

independence (such as occasional critical comments by quasi-government

officials), Wesley-Smith concludes:

“The judicial branch of government, it might be concluded, enjoys a

high degree of autonomy in an arrangement of ‘one public service, two

systems’. Judicial independence, in both its individual and institutional

manifestations, seems largely secure; there are deficiencies, certainly,

but regular judges are in general well protected from interference from

outside in their exercise of judicial functions. … [However,] (w)hen the

position of some non-regular judges is taken into account it seems that

the constitutional requirement of judicial independence has not been

fully implemented. The practical consequence is that in some cases

judicial decisions could be subject to challenge under Art 10 of the Bill

of Rights.”880

For the purpose of Waldron’s case against judicial review, he assumes

merely “a well-established and politically independent judiciary … in

reasonably good working order”.881

While Wesley-Smith assessment shows

878

Chief Secretary for Administration’s Office, “System for the Determination of Judicial

Remuneration and Interim Arrangement for the 2008 – 09 Judicial Service Pay Adjustment

Exercise”, Legislative Council Brief reference CSO/ADM CR 6/3221/02, 20 May 2008.

879 “Judicial independence cited in decision not to cut judges’ pay”, South China Morning

Post, 23 September 2009.

880 Wesley-Smith (n 876 above), pp 125 – 126.

881 “The Core of the Case Against Judicial Review” (n 821 above), p 1363.

246

certain aspects of judicial independence in Hong Kong to leave room for

improvement, his conclusion on the overall situation, coupled with the case

analyses in Part II, leaves no doubt that Waldron’s second assumption is

satisfied in Hong Kong.

10.3.1.3 Officials and most members of society committed to

rights

Chapter III of the Basic Law, the BORO, the various rights protecting

legislation 882

and the fact of Hong Kong being a party to the major

international human rights conventions 883

speak for the officials’ rights

commitment. It is true that deficiencies are always identified in the

Concluding Observations issued by the relevant Treaty Monitoring Bodies in

response to regular reports submitted under the international conventions.

However, if the absence of such comments on areas requiring improvement

were the deciding criterion, probably no society in the world could count as

committing to rights. Speeches in the LegCo show strong consciousness of the

individuals’ rights. In particular, more than one-third of the legislators,

labelled by the media as “pro-democracy”, would not hesitate to voice strong

views on any public affairs in which rights infringement is suspected. The

legislative and executive acts judicially reviewed in the cases discussed in Part

II, for example, those concerning public assemblies (sections 7.3.2.2 and

8.1.1.1), show that the principle of proportionality is very much in the

officials’ minds.

882

Including the Sex Discrimination Ordinance (Cap 48), Family Status Discrimination

Ordinance (Cap 527), Disability Discrimination Ordinance (Cap Cap 487), Race

Discrimination Ordinance (Cap 602) and Personal Data (Privacy) Ordinance (Cap 486).

883 These include the ICCPR, ICESCR, Convention on the Rights of the Child, International

Convention on the Elimination of All Forms of Racial Discrimination and Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

247

The fact that twenty of the thirty directly-elected geographical

constituency seats are occupied by legislators of the pro-democracy camp

reflects clearly the rights commitments on the part of most members of the

society. In Hong Kong, there is not only a free and vigorous press but also, a

proliferation of interest groups and dedicated social workers. As a result, even

minority groups’ rights receive full airing in the media. For example, in the

last couple of years, the enactment of the Race Discrimination Ordinance has

resulted from the lobbying of not just the ethnic minorities, but also of interest

groups and social welfare agencies made up of mainly local Chinese. Also,

after a couple of sex workers were robbed or killed, social workers assisted

them to air their grievances and the police had to face them in a LegCo panel

to explain what police measures could or could not be taken to prevent similar

incidents. There is also that famous peaceful and orderly demonstration on 1

July 2003 participated by about half a million people for multifarious causes:

to protest against the government’s proposed legislation to implement BL 23

concerning national security, to demand democracy and to underline their

grievances about the government’s various inadequacies. It is the clearest

indication that when it comes to fundamental rights, the people will stand up

and be counted.

10.3.1.4 Disagreements about rights

Again, the LegCo, despite the unfair element in its composition, is an

epitome of the society at large. Issues which require the balancing of the

individuals’ rights against the collective interests are always fiercely debated

between the pro-democracy and pro-establishment camps. For example, the

support for the proposed legislation under BL 23 was so evenly balanced that

eventually, the CE had to “postpone” the bill after the chairman of the Liberal

Party resigned from the Executive Council and withdrew his party’s support.

The Interception of Communications and Surveillance Ordinance (Cap 589)

248

was enacted after a Second Reading debate which lasted four days and took up

more than 2,300 pages of the Hansard.884

10.3.2 Fallon’s argument applied

Owing to the absence of a democratic decision-making mechanism,

Hong Kong, like Singapore, is Waldron’s non-core society, to which his

process-based argument against judicial review does not apply. However,

unlike Singapore, Hong Kong has a rights-commitment culture, which

justifies Fallon’s multiple-veto argument that “it is more morally troublesome

for rights to be underenforced than overenforced” and “better to err on the side

of too much rather than too little protection of rights”.885

That judicial review

in Hong Kong does contribute to the government’s legitimacy is indicated by

the positive media response which nearly always meets a judicial decision

declaring a legislative or executive act to be unconstitutional.

10.4 CONCLUSION

The counter-majoritarian consideration – or democracy as relied on by

the Singapore judiciary – cannot justify the de facto non-existence of

constitutional review of legislation in Singapore. Given the hurdles created by

the ruling political party to free debates and political participation and the low

standards of fundamental rights enjoyed by the people compared with those

enjoyed in the democratic countries, the legislature’s decisions do not satisfy

Dworkin’s principles, discussed in section 3.4.4.1, of participation, stake and

independence for democracy. Presumably even Waldron would not support

the extent of judicial restraint as witnessed in Singapore. The human rights

decisions validated by the courts are morally illegitimate because they fall

884

Hong Kong (China) Legislative Council Official Record of Proceedings 2006, pp 9989 –

11,345. 885

See n 820 above.

249

below the minimum standard of justice, legally illegitimate because the legal

principles adopted depart from the norm in the common law world but

arguably, socially legitimate because the majority of the citizens have

signified their acceptance through the ballot box – though it is a Hobson’s

choice in the absence of any other political party capable of running the

country.

While the counter-majoritarian difficulty does not justify judicial

restraint in Singapore, the lack of such difficulty in Hong Kong is one of the

justifications – the other being the existence of a pro-rights culture – for

vigorous judicial review. Even so, as we have seen in Part II, the principles

adopted by the court and the standards of substantive rights emerging from the

review merely follow, and are not more activist than, those in the democratic

countries. Hence judicial review is a legitimate institution in Hong Kong from

the moral, legal and social point of view even though owing to the lack of

democracy – more specifically, the unfairness resulting from inequality in

political participation – the government as a whole lacks moral and social

legitimacy.

250

CHAPTER 11 –

RIGHTS CULTURE

AND

LEGITIMACY

11.1 INTRODUCTION

In Chapter 10, I argue that the governments of Singapore and Hong

Kong lack moral legitimacy. Bickel suggests that judicial review performs a

legitimating function in respect of the government as a whole. He appears to

have in mind both moral and social legitimacy.

Despite the low standard of human rights and the virtual non-existence

of constitutional review, election results in Singapore show that its

government as a whole enjoys social legitimacy. If the number of

demonstrations against government actions is a reliable indiciator of social

illegitimacy, the Hong Kong government, despite more committed to rights

and the existence of vigorous constitutional review, has a social legitimacy

way below that of its Singapore counterpart. The political structure is

obviously an important reason for the difference in social legitimacy of the

two governments. Another no less important reason is what may loosely be

referred to as the cultural difference, namely the political apathy of the

Singapore people versus the Hong Kong people’s demand for human rights.

251

The word “culture” has many meanings.886

Cultural relativism

involves several dimensions.887

When the Singapore School argues that

human rights are Western values and should not be imposed on the Asian

countries because of the cultural and ethical differences there,888

it is

apparently attaching to “culture” a meaning similar to that used by some

sociologists: “the total lifestyle of a people, including all the ideas, values,

knowledge, behaviours and material objects that they share”.889

It is in the

same sense that I refer to Waldron’s third assumption – the existence or

otherwise of rights commitment on the part of the officials and most members

of the public – 890

as the “rights culture” in this thesis. The term is neutral. A

“pro-rights culture” is one where such commitment is prevalent, the antithesis

being “political apathy”.

By using cultural differences as the reason for not following the

Western standards of human rights, the cultural relativists seem to imply that

culture evolves from race, history, religion etc and therefore, cannot be

changed by the government at will. The claim is difficult to sustain. In

sociology, a culture includes three types of norms which influence human

886

A list compiled in 1952 contains 164 definitions: A.L. Kroeber and Clyde Kluckhohn,

Culture: A Critical Review of Concepts and Definitions (New York: Vintage Books, 1952),

available on www.questia.com/read/100067373 on 10 August 2010.

887 For a chronological account of the debate on cultural relativism, see Randall Peerenboom,

“Beyond Universalism and Relativism: The Evolving Debates about ‘Values in Asia’ ” (2003)

14 Indiana International and Comparative Law Review 1. For a discussion of Singapore’s

view on the “Asian values”, see Simon S.C. Tay, “Human Rights, Culture, and the Singapore

Example” (1996) 41 McGill Law Journal 743.

888 Eva Brems, Human Rights: Universality and Diversity (The Hague; Boston; London:

2001), p 41.

889 Thomas J. Sullivan, Sociology: Concepts and Applications in a Diverse World (Boston;

Hong Kong: Pearson Education/ Allyn and Bacon, 7th edn, 2007), p 39, which refers to C.

Geertz, The Interpretation of Cultures (New York: Basic Books, 1973) and Kroeber and

Kluckhohn (n 886 above).

890 Section 3.4.5.2.

252

behaviours: legal, moral and social. The third one is purely descriptive – a

statistical account of the frequency of particular conducts or behaviours. The

three norms influence each other. Some moral norms are to be enforced

through legal norms. While legal norms are not necessarily moral norms, no

legal norm should be created which is morally wrong. Through enacting a

legal norm, a government using the coercive power conferred by the relevant

legislation can create a social norm. The existence of a social norm, especially

if it is long established, can be an obstacle to – or even a valid reason against –

the creation of a legal norm which conflicts with the social norm. However,

occasionally, that a social norm (for example, discrimination) is rampant may

constitute the very reason why it must be changed by law. A legal norm will

change not only a social norm but also, may in time be regarded as a moral

norm. The creation of a legal norm is not the only way open to a government

to change the social and moral norms. Education and publicity will in some

cases be equally, if not more, efficient as they avoid the negative effects which

will result from the use of coercive measures.

It is beyond the scope of this thesis to explore in depth the

development of the rights culture in Singapore and Hong Kong respectively.

This chapter will merely take a brief look at the historical, economical,

political and social factors which appear to lead to the difference between the

two places. Another question to be addressed is what, given political reality

and the existing rights culture, the two judiciaries can do to enhance the moral

legitimacy of their respective governments.

253

11.2 SINGAPORE

11.2.1 Formation of heartlanders’ political apathy

When Singapore became independent in 1965, after a Malay-Chinese

race riot the year before, it was a small, poverty-stricken third-world country

891 which had little resources other than a deep-water harbour and a

heterogeneous, multi-racial but hard-working workforce. Internally, tension

existed between the Chinese, the largest race in the population, and the

Malays. Externally, it was under threat from two much larger countries –

Malaysia and Indonesia. The British forces, which contributed to Singapore’s

economy as well as security, would withdraw by 1972.892

The PAP was

formed in 1954 and had been successful in election first held in 1959, when

Singapore was part of Malaysia. It decided that the country’s economic future

lay in international commerce. “Singapore had found that good government, a

developed infrastructure, and an attractive workforce were necessary draws to

foreign investment. With its exit from Malaysia, Singapore had to convince

investors that this new country was a safe place to put their money and that it

was stable politically and socially.”893

For national defence, Singapore built up a sophisticated military

service, including a high-tec airforce. Conscription for males was introduced

in 1967 and encountered little resistance as the government succeeded in

portraying Singapore as a small state under siege.894

In diplomacy, Singapore

mended fences with Malaysia and Indonesia, cultivated a friendly relation

891

This description is used in Lee Kuan Yew, From Third World to First – The Singapore

Story: 1965-2000” (New York: HarperCollins, 2000)

892 Jim Baker, Crossroads: A Popular History of Malaysia and Singapore (Singapore; Kuala

Lumpa: Times Books International 2000), p 365.

893 Ibid, p 367.

894 Mauzy and Milne (n 825 above), p 170.

254

with China and through participation in multi-lateral organizations, developed

its international influence.895

Internally, “(c)entral to the PAP leaders’ thinking on the role of

government was their view that the compulsion to achieve economic progress

and ethnic harmony made it imperative that the government in Singapore

controlled all instrument and centres of power and did not allow the growth of

political pluralism.”896

This was achieved partly by the Barisan Sosialis’s (the

Malay for Socialist Front) decision to withdraw from the 1966 election and

partly by the use of preventive detention under the Internal Security Act, left

over from the colonial days, against the radicals.897

In the 1968 general

election, fifty-one PAP candidates were returned unopposed and the

remaining seven seats also went to PAP candidates who beat their

opponents.898

The party also won all the seats in the parliament in 1972, 1976

and 1980.899

Economically, commercial activities were carried out through

state-owned enterprises operating on free market principle.900

The

concentration of economic power facilitated the concentration of political

powers in the government.

In view of the heterogeneous and multi-racial nature of the population,

social cohesion was to be achieved – and a distinct national identity

developed – through “civil values [which] are the embodiment of common

norms, shared values and expressive symbols which citizens of a state identify

895

Ibid, Ch 13: “Deterrence and Diplomacy”.

896 Selvaraj Velayutham, Responding to Globalisation: Nation, Culture and Identity in

Singapore (Singapore: Institute of Southeast Asia Studies, 2007), p 27.

897 Ibid, p 369

898 Alex Josey, Lee Kuan Yew: The Crucial Years (Singapore; Kuala Lumpa: Times Books

International, 1980), p 67.

899 Baker (n 892 above), p 370.

900 Velayutham (n 896 above), pp 27 – 28.

255

with”.901

Instead of waiting for such values to evolve, the PAP adopted a top-

down approach.902

The western, liberal values would not serve the country.

Instead, Confucianism and the Asian values were the right ones to adopt: “a

set of ideals which include an emphasis on the community rather than

individual, the privileging of social order and harmony over individual

freedom, an insistence on hard work, a particular emphasis on saving and

thriftiness, a respect for political leadership, a belief that government and

business need not necessarily be natural adversaries, and an emphasis on

family loyalty”.903

Compulsory military service was introduced, which had the

effect of fostering the people’s sense of unity.904

For the people to fight for

their country, they must have their own homes to protect.905

To address the

acute housing shortage, the PAP embarked on a massive public housing

programme. Through a quota system based on race, the programme also

helped to promote racial harmony by mixing different ethnicities in the same

estate.906

The Letters Patent granted by the British government in 1826, referred

to as the Second Charter of Justice (the First being the Letters Patent granted

in 1807) formally applied English law to Singapore.907

The Second Charter,

which provided for modifications to be made in the light of local

circumstances, formed the foundation for the development of an 901

Hussin Mutalib, “Singapore’s Quest for a National Identity: The Triumphs and Trials of

Government Politics”, Ch 4 in Ban Kah Choon, Anne Pakir and Tong Chee Kiong (eds),

Imagining Singapore (Singapore: Eastern University Press, 2nd

edn, 2004), p 54.

902 Ibid, p 55.

903 Velayutham (n 896 above), p 54.

904 Lee Kuan Yew (n 891 above), p 27.

905 Ibid, p 96.

906 Beng-Huat Chua, Communitarian Ideology and Democracy in Singapore (London and

New York: Routledge, 1995), Ch 6: “Not Depoliticised but Ideologically Successful: The

Public Housing Programme”, pp 140 – 141.

907 Connie Carter, Eyes on the Prize: Law and Economic Development in Singapore (The

Hague; London; New York: Kluwer Laws, 2002), p 45.

256

autochthonous legal system.908

Carter observes that “Singapore’s legal system

crossed the Rubicon [and stood on its own] when the PAP leadership

committed itself irrevocably to a development, nation-building course of

action (by 1965), and opted for pragmatic state intervention as the way of

orchestrating the desired results”.909

The umbilical cord connecting the British

and Singapore legal systems was cut when Singapore abolished appeal to the

Privy Council in 1994.910

In many areas, the laws seem to facilitate and

legitimise government policies, which might or might not have been

implemented effectively without law.911

Thus, economic development entails universalism in commercial law

to facilitate business operations.912

For the sake of law and order, the

individuals’ liberties are sacrificed. Instead, strict controls backed by stiff

penalties are imposed. To uphold the authority of those who wield the

concentrated powers and also, to avoid persons of the right calibre being

deterred from entering public service, the laws on defamation and contempt of

court are tilted in favour of those in power. “(T)he need to maintain the

integrity of the system and the leaders triumphs over the individuals’ freedom

of expression.”913

The PAP’s success in raising the people’s livelihood from the third

world to the first, combined with the stiff laws, reinforces the heartlanders’

political apathy referred in section 10.2.1.3 above. Jolene Lin observes:

908

Andrew Phang Boon Leong, From Foundation to Legacy: The Second Charter of Justice

(Singapore: Singapore Academy of Law, 2006).

909 Carter (n 907 above), pp 59 – 60.

910 Ibid, p 57.

911 Ibid, p 162.

912 Eugene Kheng-Boon Tan, “Law and Values in Governance: The Singapore Way” (2000)

30 Hong Kong Law Journal 91, pp 109 – 114.

913 Ibid, p 107.

257

“Because economic and social regulation in Singapore is almost

entirely oriented toward the development agenda, which has been

successfully promoted as a shared national aspiration for all sectors of

Singaporean society, there has not been that demand for external

checks on the regulatory machinery. Instead, it appears to be conceded

that the executive branch needs all the powers, discretion, and

flexibility it can have to pursue economic development for Singapore.

Within this paradigm, the overarching goal of regulation is economic

survival and progress.”914

11.2.2 The judiciary’s role in the formation of the rights

culture

Politicians in the United States appoint to the bench people of their

own political inclination. This can also be expected to be the case in

Singapore. Even though the top judges are appointed by the elected

President915

who must not belong to any political party,916

the appointments

are made on the Prime Minister’s advice. Since the PAP has been the only

ruling party since independence, it can safely be assumed that the bench is

filled by judges sharing the PAP’s philosophy. That is evident from the

judicial decisions discussed in Part II of this thesis.

The literal, textual approach to constitutional interpretation – and

consequently, the de facto impossibility for any legislation to be invalidated

914

Jolene Lin, “The Judicialisation of Governance: The Case of Singapore”, Ch 13 in Tom

Ginsberg and Albert H. Y. Chen, Administrative Law and Governance in Asia (London and

New York: Routledge, 2009), pp 288 – 289.

915 Article 95(1) of the Constitution of the Republic of Singapore provides: “The Chief Justice,

the Judges of Appeal and the Judges of the High Court shall be appointed by the President if

he, acting in his discretion, concurs with the advice of the Prime Minister.”

916 Article 19(1)(f) of the Constitution of the Republic of Singapore.

258

on ground of breaching constitutional rights – means the executive as well as

the legislature have “all the powers, discretion, and flexibility [they] can have

to pursue economic development for Singapore”.917

It also means certainty,

which contributes to administrative and judicial efficiency though at the

expense of justice. Pragmatism, regarded by Yeo et al to be the first of the

PAP’s ruling strategies, in fact also permeates in the other three strategies:

“ensuring economic progress”; “racial harmony, social stability and national

identity”; and “elitism”.918

The harsh treatment of the Jehovah’s Witnesses,919

simply because its

doctrine prohibits its adherents from saluting the national flag and joining

military service, reflects Singapore’s utmost concern for the slightest

perceived threat to national identity and national security. National security

and national identity are no doubt of top priority to any country. In the case of

Singapore, one should not underestimate the precariousness of a small country

surrounded by much bigger, potentially hostile neighbours. There was also

evidence of the religion’s adherents actually refusing to perform military

service or salute the national flag.920

However, is it not already a sufficient

response to criminalise such refusal, instead of banning all the publications

and activities of the religion?

When holding the banning of the religion to be not unconstitutional,

the court said “it was not for this court to substitute its view for the minister’s

as to whether the Jehovah’s Witnesses constituted a threat to national

security”.921

The counter-majoritarian difficulty applies to the legislature’s

acts and not the executive’s as in this case. The decision can, however, be

917

Note 914 above.

918 Yeo Lay Hwee, Tan Hsien Li and Joanne Lin, Governing Singapore: How, Why, and

Where Are We Heading? (Hong Kong: Civic Exchange, 2005).

919 See section 8.1.1.1.

920 Notes 465 and 477 above and accompanying texts.

921 Chan Hiang Leng Colin v PP [1994] 3 SLR 662, 685H.

259

defended on the ground that matters relating to national security should best

be left to the executive’s judgment. However, even so, to follow Bickel’s

passive virtues, the court could have at least floated the question why less

draconian measures, short of banning the religion, had not been considered.

Chief Justice Yong revealed a little more his own views when ruling

the licensing requirement of public rally to be constitutional. “In any society,

democratic or otherwise, freedom of speech is not an absolute right. Broader

societal concerns such as public peace and order must be engaged in a

balancing order exercise with the enjoyment of his personal freedom”.922

His

reference to the balancing exercise was not backed up by any explanation on

why the right balance had been struck in the instant case. The mere mention of

“public peace and order” was regarded to have settled the issue. That also

explains why capital punishment and caning, which have been abolished in

most “first world” countries, are still being practised in Singapore despite Lee

Kuan Yew’s not unjustified claim that he has brought his country from the

third world to the first.923

If the above judicial decisions allowing the collective interest to trump

the individuals’ rights are merely due to the counter-majoritarian difficulty,

the same defence is not available for the common law decisions. By making

the offence of scandalising the court one of strict liability “which is committed

so long as the statement in question impugns the integrity and impartiality of

the court, even if it is not so intended” and as it is sufficient for the words

complained of to have the “inherent tendency to interfere with the

administration of justice”, 924

the judiciary inhibits public discussion of any

judicial decisions. While the rationale of the offence is to protect the public

interest, its side effect is to protect the judges’ reputations. That coincides with

922

Notes 457 and 458 and accompanying texts.

923 Note 891 above.

924 AG v Chee Soon Juan [2006] 2 SLR 650, para 31.

260

the PAP’s strategy of elitism, which goes hand in hand with upholding the

authority of those who wield public powers.

Elitism means, to the PAP, that not only the best people should run the

country but also, people with “ideas which are threatening to the harmony of

Singapore” should be kept away from the Parliament.925

Conceivably, any

opposition politicians who openly criticise the government will fall into the

latter category, which explains the PAP’s numerous defamation suits against

opposition politicians.926

There can be more than one explanation as to why

the court has decided all cases in favour of the PAP leaders and awarded hefty

damages against their political opponents. One which does not impugn the

judges’ integrity is that they simply share the PAP’s philosophy and strategies

as regards what is in the country’s best interests. This is understandable. After

all, Singapore is a small country. Given Mr Lee’s charisma and the PAP’s

control over the political as well as economic organs, those who make their

way to the bench are likely to have internalised the PAP’s ideas on their way

up the ladder even if they did not subscribe to them in the beginning.

The political apathy in Singapore results, on the positive side, from the

government’s ability to satisfy the material needs of the people and, on the

negative side, from the disproportionate suppression of dissenting view in

order to protect national security and law and order. The latter is implemented

925

J. B. Jeyaretnam, The Hatchet Man of Singapore (Singapore: Jeya Publishers, 2003), p 118.

The book contains an account of the defamatory proceedings instituted by PAP leaders

against Jeyaretnam. Goh Chok Tong, then Prime Minister, said under cross-examination: “I

thought it as my duty to prevent unsavoury characters from entering Parliament. So, it’s my

duty to check the opposition members who could do harm to the whole system of a

government in Singapore.” When pressed whether “unsavoury characters” means “people

with unsavoury ideas” or “unsavoury behaviour”, he replied, “Unsavoury behaviour, character.

And in some cases, ideas which are threatening to the harmony of Singapore”.

926 See n 737 above.

261

through the legal norms. The judges are as much a party as the politicians to

the creation and maintenance of those norms.

11.2.3 What can the judiciary do in the interests of the

government’s moral legitimacy?

Bickel’s passive virtue is intended to be a self-preservation technique

by the judiciary to forestall the interference of judicial independence by the

executive and the legislature. In Singapore, the decision in Teo Suk Lung not

to rule whether there is any limit to constitutional amendment (section 4.1.3)

appears to be the only incidence of the avoidance technique being used.

Indeed, the courts have been making maximalist but deferential decisions. The

most maximalist one is that of interpreting the word “law” in Part IV of the

Constitution to include any law enacted by the legislature regardless of

substance. To regard this as a self-preservation technique would probably be

unfair to the judges concerned, who may believe, from the bottom of their

hearts, that such judicial restraint is the right one under Singapore’s

autochthnous legal and political systems. Under art 95 of the Constitution, the

Chief Justice, Justice of Appeal and High Court judges are appointed by the

President on the advice of the Prime Minister. As discussed in section 10.2.3

above, the President is likely to be an elitist like the PAP leaders. The

appointment procedure would no doubt produce judges who share the PAP’s

ideology. Even if somehow the Supreme Court is filled by reformist judges

who subscribe to the argument in section 10.2.3 above and wish to raise the

human rights standards by reforming constitutional review, there is probably

not much they can do on their own.

For one thing, they are bound by stare decisis. The literal interpretation

of the word “law” in Part IV of the Constitution has been firmly established.

The smallest step to take by way of reform is to adopt the ECtHR’s tests of

accessibility and forseeability. The latter would have wide implications for all

262

legislation restricting constitutional rights. Most if not all such laws would

have to be revised. It would be irresponsible for the judiciary to make such a

change before the review and revision are completed. Such review and

revision can only be undertaken by the executive and the legislature.

There is perhaps one area in which reform is possible while its

implications are within judicial control. That relates to the presumption

clauses transferring the burden of proof to the accused. As Hor suggested back

in 1995, it would be appropriate for the accused to bear the evidential and not

persuasive burden.927

The change, being a matter of statutory interpretation

only, is well within the judiciary’s constitutional power. The judiciary can

look at each presumption clause separately as it comes along. The propriety of

each clause depends very much on the circumstances in which it may be

invoked. One clause can easily be distinguished from another. Another reason

for choosing this as a priority area for reform is that many such presumption

clauses relate to offences which carry severe punishment up to the death

penalty, for example, drug trafficking. The grave consequence for the

individuals concerned underlines the argument that it would be morally better

to err on the side of acquittal than on the side of conviction.

Politically, however, the judiciary is unlikely to win with such a move.

Given the importance attached by the PAP to law and order and given the

grave social evils which can be caused by drug trafficking and other illicit

activities targeted by such presumption clauses, the PAP legislature and

executive will not accept such narrow statutory interpretation lying down. The

political branches refrain from interfering with judicial independence only

because of the adverse consequence which would follow. When the PAP

introduced constitutional amendments after Chng Suan Tze to oust judicial

927

Michael Hor, “The Presumption of Innocence – A Constitutional Discourse for Singapore”

[1995] Singapore Journal of Legal Studies 365. See also section 8.1.4 above.

263

review in preventive detention cases,928

there appeared to be little adverse

public reaction.929

That was an indication of the heartlanders’ political apathy.

It was probably merely coincidental that the percentage of votes won by the

PAP in the first general election held after the incidence happened to be the

lowest it has won among all elections.930

When it comes to illicit activities like

drug trafficking, the PAP would probably have little difficulty in garnerning

public support against any liberalisation by the judiciary, which would be

vulnerable to accusation of judicial legislation.

Perhaps the PAP would take into account the possible effect on

international investors’ confidence in judicial independence if it were to resort

to similar action as that after Chng Suan Tze? The fact, however, is that the

post-Chng interference with judicial independence and restriction of press

freedom – which other governments, the HKSAR Government for one, would

refrain from out of concern for investors’ confidence – do not appear to affect

investors’ confidence in Singapore.931

There are hypotheses that a free market

economy and the emergence of a strong middle class would result in liberal

institutions and convergence with the world as far as human rights are

concerned. “Singapore’s experience does not support these postulated causal

links between economic development and the emergence of laws and liberal

institutions.”932

928

See section 4.1.2 above.

929 When the relevant constitutional amendment bill was debated in the Parliament, Chiam

See Tong, an opposition MP, said, “I believe the majority of the people will oppose it”:

Singapore Parliament Reports, 25 January 1989, Column 485. He then mentioned the

detainees and their relatives as the persons who would object. This seems to show that not

even the legal profession, who should be sensitive to any erosion of judicial independence,

raised any objection.

930 In the 1991 general election, the PAP obtained 61% of the votes, which is the lowest

percentage of votes it won in the ten general elections from 1968 to 2006: see

www.singapore-elections.com, last accessed on 24 November 2009.

931 Silverstein (n 841 above).

932 Carter (n 907 above), p 259.

264

Fortunately, the sign is that the political branches do see the need for

liberalisation. In a 2004 speech, Lee Hsien Loong, then Deputy Prime

Minister and now Prime Minister, said that in order to cope with the challenge

posed by the increasingly unpredictable market and to meet the aspirations of

the better educated and more informed Singaporeans, Singapore “must open

up further”. “We will promote a political culture which responds to people’s

desire for greater participation, in a manner which supports Singapore’s

growth as a nation.” However, he also said, in the same breath, apparently

with reference to the western culture, “that we will not ape others blindly and

do something simply because it appears fashionable”. “Rigorous debates” of

policies are encouraged “(b)ut a criticism that scores political points and

undermines the government’s standing, whether or not this is intended, is

another matter altogether”.933

Hopefully, it is not wishful thinking that the political branches will wish

the judiciary to become less self-restrained as part of the intended opening up.

If it is agreed that the judiciary has a role to play in the “rigorous debate” of

policies, a minimalist approach is to adopt the ECtHR’s concept of “law” and

principle of proportionality initially, in respect of the democracy-impeding

measures referred to in section 10.2.3 above only. Far from eroding the de

facto parliamentary sovereignty practised in Singapore, the foreseeability test

merely entails the parliament stating its intentions in more specific terms to

facilitate the people’s compliance. The principle of proportionality amounts

to a form of cost-benefit analysis which a rational government should and

does conduct in policy-making in any case. The principle goes hand in hand

with the margin of appreciation, which gives the judiciary flexibility to

933

Lee Hsien Loong, “Building a Civic Society”, Speech by Deputy Prime Minister at the

Harvard Club of Singapore’s 35th

Anniversary on 6 January 2004, available on

http://unpan1.unorg/intradoc/groups/public/documents/apcity/unpan015426.pdf, last accessed

on 24 November 2009.

265

determine the standard of review taking into account the particular social,

economic and political situations in Singapore.

One of Waldron’s arguments against judicial review is that the legalistic

language inhibits public participation in the deliberation of the subject matter.

The proportionality test can be conducted in languages easily understood by

non-lawyers. Its adoption in policy-making and judicial review, coupled with

a relaxation of the existing state control over the freedom of expression, would

promote deliberative democracy and enhance the government’s legitimacy.

11.3 HONG KONG

11.3.1 Formation of rights culture

In the colonial days, Hong Kong was, until the last governor Chris

Patten, ruled by UK civil servants, whose general attitude has been described

as “benevolent paternalism”.934

There was no democracy but there was no

lack of freedom. The paternalistic benevolence was due, in large part, to the

fact that ultimately, the colonial government was accountable to the liberal,

democratic legislature in Westminster. Like Singapore, Hong Kong after the

Second World War had no natural resources other than a deep-water harbour.

Unlike Singapore, the sort of racial tension existing in 1965 Singapore did not

exist here. A high proportion of the population was migrants from the China

mainland after the Communist Party had gained power. While there was no

racial tension, there were conflicts between those who were pro-Kuomintang

and those who were pro-Communist Party. Some of the migrants remained in

Hong Kong because they had no other choice; others did so because of the

934

Steve Tsang, Governing Hong Kong: Administrative Officers from the Nineteenth Century

to the Handover to China, 1982 – 1997 (Hong Kong: Hong Kong University Press, 2007), Ch

3: “Benevolent Paternalism”.

266

freedoms enjoyed here. The British government ruled out the introduction of

representative government on the claim that the Communist government in

China would not tolerate political reform.935

Like Singapore, Hong Kong had to rely on international trade and

foreign investments for its economic survival. The government’s policy was

one of laissez-faire. Economic freedom was supplemented by civil liberties. It

was thought, especially when Hong Kong aspired to be an international

financial centre, that the rule of law, judicial independence and personal

freedom were essential in maintaining Hong Kong’s international image and

investors’ confidence. Unlike Singapore, the government did not take part in

commercial activities, leaving them entirely to the private sector. Hence, the

colonial government wielded only political powers while the economic

powers were in the hands of the businessmen. Up to the 1970s, the economy

and material well being were uppermost in the people’s minds. There was

little demand for democracy. Freedoms were taken for granted. In 1976, the

British Government extended the ICCPR and ICESCR to cover Hong Kong

subject to reservations concerning democracy and immigration control.

In the early 1980s, as the Chinese and British government were

negotiating on the future of Hong Kong after 30 June 1997, the possibility of

Hong Kong reverting to China – where there had been disastrous political

movements but no civil liberties – became a distinct possibility. People were

worried about the loss of freedom after a change in sovereignty. To prevent

the exodus of people, the Sino-British Joint Declaration contained guarantees

of “one country, two systems”, “high degree of autonomy”, “Hong Kong

people ruling Hong Kong” and various fundamental rights, including those

enshrined in the ICCPR and ICESCR.

935

Leo Goodstadt, Uneasy Partners: The Conflict between Public Interest and Private Profit

in Hong Kong (Hong Kong: Hong Kong University Press, 2009), p 31.

267

All these assurances became insufficient after 4 June 1989. To address

the people’s fear about possible tyranny after 1997, the colonial government

enacted the BORO and amended the Letters Patent such that all laws must

comply with the ICCPR as applied to Hong Kong. To pave the way for

Britain’s “glorious retreat” in 1997, the colonial government enacted in its last

years in Hong Kong several anti-discrimination statutes.936

The publicity

concerning all the human rights protection measures resulted in a strong pro-

rights culture when Hong Kong reverted to China as a Special Administrative

Region in 1997. It has since been reinforced by the human rights stand taken

by the CFA and the lower courts.

11.3.2 The judiciary’s role in the formation of the rights

culture

The judiciary was a key player contributing to the pro-rights culture

mentioned in the preceding section. For many years, most members of the

bench were recruited or transferred from the United Kingdom or its colonies

and dependent territories.937

The Privy Council remained as the final appellate

court up to 30 June 1997. Until the mid-1970s, nearly all the barristers

practising in Hong Kong were trained and qualified in the United Kingdom.

All these factors ensured that the British concepts of rule of law, judicial

independence and respect for the individuals’ rights took root firmly in the

judiciary, the legal profession and also, the community – the social norms

being influenced by the legal norms.

The judiciary’s role became even more prominent after 8 June 1991,

when judges acquired the power to invalidate legislation inconsistent with the

936

See note 882 above. The Race Discrimination Ordinance was enacted after 1997.

937 Yang Ti-liang was the first ethnic Chinese, called to the bar in England in 1954, to become

the Chief Justice in 1988 after joining the judiciary as a magistrate in 1956.

268

core provisions of the ICCPR.938

Accessibility to the court was encouraged by

the relative ease to obtain legal aid in any case where breach of the BOR or

inconsistency with the ICCPR is an issue.939

The media attention invariably

attracted by each human rights case, especially one in which a statutory

provision or a long established practice was declared unconstitutional,

heightened the people’s awareness. The court’s use of foreign precedents as

persuasive authorities, which coincides with the government’s advertising

Hong Kong as a “world city”, means the court will probably follow such

precedents unless there are cogent reasons for not doing so.940

The judicial

reasoning in all sensitive human rights cases comes under the scrutiny of not

only the counsel for the litigating parties but also the vocal, rights-committed

Hong Kong Bar Association.

A study in the United States suggests that “judges care more about

evaluations of their work by other lawyers than they do about the approval of

more diffuse groups”.941

This is perhaps true of Hong Kong judges too. In

addition to being the evaluators, the legal profession also provides the

judiciary with moral support when judicial independence comes under threat.

On 30 June 1999, after the NPCSC’s reversal of part of the CFA’s decisions in

Ng Ka Ling,942

several hundred lawyers dressed in black mounted a silent

protest march.943

On the other hand, when any judicial decision appears to

attach insufficient weight to human rights, one group of activists or another

can be counted upon to voice their disapproval in the street or appeal, with

938

See section 4.2.1 above.

939 Under section 5AA of Legal Aid Ordinance (Cap 91), the Director of Legal Aid may waive

the means test in such cases such that for legal aid to be granted, an applicant has to pass the

merit test only.

940 See section 6.3 above.

941 Lawrence Baum, Judges and Their Audiences (Princeton and Oxford: Oxford University

Press, 2006), Ch 4: “Social and Professional Groups”, p 98.

942 Note 379 above.

943 “600 lawyers in silent protest march”, South China Morning Post, 1 July 1999, p 2.

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legal aid financed by the public fund or assistance of lawyers acting pro bono,

all the way up to the CFA. Though judicial dependence requires judges to

uphold justice without fear or favour, it is humanly impossible – and arguably,

even a breach of the people’s trust – for them to ignore such public opinions.

The effect of the pro-rights culture, therefore, is that the judges would, as

Fallon defends that they should, err on the overenforcement, rather than

underenforcement, of constitutional rights.

11.3.3 What can the judiciary do in the interests of the

government’s moral legitimacy?

As discussed in section 10.3.1 above, the absence of a democratic

political structure renders Hong Kong Waldron’s non-core society and his

case against judicial review does not apply here. On the other hand, the rights

commitment by the official and the people justifies judicial review based on

the multiple-veto argument by Cross and Fallon. Politically, judicial review

has been performing the legitimating function, mentioned by Black and agreed

by Bickel, in the midst of the fragmentation of powers in Hong Kong.

Powers are fragmented because, as from 1 July 1997, the executive has

no vote in the legislature while the legislators who hold the vote cannot

introduce any proposal relating to public expenditure or government policies

without the CE’s consent.944

In view of the nature of functional constituencies

(the representatives of which may be elected because of their social status in

the sectors concerned regardless of their political affiliation) and the

proportional representation system in the election of the geographical

constituencies, even the largest political party commands only about ten votes

in the 60-member LegCo. In terms of political inclination, roughly about 30

members have been labelled as “pro-government”, about 25 “pro-democracy”

944

BL 74. See also section 10.3.1.1 above.

270

and the remainders “independent”. The “pro-democracy” members take a

libertarian stand on any proposal which may have the effect of restricting the

individuals’ rights. The executive cannot take the “pro-government”

members’ support for granted because the latter will have to consider the

possible adverse effect which an “anti-right” vote may have on their chance of

re-election.

Now and then, heated public disagreements continue after a contested

legislative proposal is bull-dozed through the LegCo with the “pro-

government” members out voting the “pro-democracy” members. Matters

which should have been resolved through the political process occasionally

reach the court by way of judicial review.945

The judiciary in Hong Kong

enjoys much higher legitimacy than the executive and the legislature. Had it

not been for the legitimating function of judicial review, the public dissent

could have been prolonged and become violent. Such legitimating function

was indeed relied upon by the executive in the Bills Committee on the

proposed legislation under BL 23 to resolve disagreements. The “pro-

democracy” members insisted on adopting the “direct and immediate

connection” test in Principle 6 of the Johannesburg Principles to define the

offence of sedition. The executive rejected the suggestion on the ground that it

was too restrictive. In support, it stated that “(t)he prevailing tests as are now

applied by the courts in respect of the ICCPR and European Convention of

Human Rights (ECHR) are that of balancing competing interests”946

and

“(t)he fact that Principle 6 may not in all cases be satisfied would not prevent

945

For example, harbour reclamation, rent increase in public housing and privatisation of

commercial units in public housing estates: see Johannes Chan, “Administrative Law, Politics

and Governance: The Hong Kong Experience”, Ch 8 in Tom Ginsburg and Albert H. Y. Chen

(eds), Administrative Law and Governance in Asia (London and New York: Routledge, 2009),

pp 161 – 163.

946 Security Bureau, “Proposals to Implement Article 23 Broadly Consistent with

Johannesburg Principles”, March 2003, para 13 – available on

www.basiclaw23.gov.hk/english/resources/legco/legco_article11.htm on 26 May 2009.

271

a court from upholding these offences as being consistent with the Basic Law

or ICCPR”.947

This is a non-reason. Whether the “direct and immediate

connection” test should be enacted is a policy decision to be made by the

legislature. If the legislature had so enacted, the court, acting as a multiple

veto point, would not tamper with it. On the other hand, the non-inclusion of

the test in the legislation would not prevent the court from adopting it when

applying the principle of proportionality to assess the constitutionality of the

legislation.

The Hong Kong judiciary has been contributing to the government’s

social legitimacy not only through the multiple-veto and legitimating function

but also through educating the executive on future actions. For example, the

police’s handling of demonstrators is always a delicate and controversial

subject. In the Falun Gong demonstration case,948

the CFA clarified the legal

basis of the police’s power of arrest and in doing so, provided guidelines

which would enable the police to draw up instructions to be observed by

frontline police officers, thus avoiding similar conflicts between the police and

demonstrators in future. However, since the root cause of the Hong Kong

government’s moral and social illegitimacy is the lack of a democratic

political structure, it cannot be cured by the judiciary no matter how

independent it is and how just its decisions are. Indeed, with the wide range of

social issues settled through judicial review, there is a danger of the judiciary

being perceived as politicised, 949

in which case the social legitimacy of the

judiciary itself would be at stake. That appears to be the reason why in his

speeches at Ceremonial Opening of the Legal Years 2005 and 2006, 950

the

947

Ibid, para 14.

948 Yeung May Wan & Others v HKSAR [2005] 2 HKLRD 212

949 Johannes Chan, “Basic Law and Constitutional Review: The First Decade” (2007) 37

HKLJ 407, at pp 434 – 445.

950 Last accessed via the Judiciary’s website www.judiciary.gov.hk on 21 January 2010.

272

Chief Justice had to state the limit of judicial review and appeal for social,

political and economic problems to be addressed through the political process.

11.4 CONCLUSION

In a study comparing how Singapore and Hong Kong rulers cope with

political opposition, Ortmann concludes:

“While Hong Kong experienced a rising opposition movement in the

1970s and 1980s, Singapore’s leaders have successfully contained

nearly all contentious politics in the city-state. This occurred in a

climate in which ruling elite and oppositional groups both share

similar goals. While the oppositional groups usually stress reform

goals over revolutionary demands, Singapore and Hong Kong’s

leaders prioritise economic growth and government efficiency … The

main difference between these two states can be found in the tactics of

the oppositional and ruling elite groups. While Hong Kong leaders

opted most often for co-option and the opposition relied mostly on

non-institutionalised tactics, such as protests, sit-ins, or strikes,

Singapore’s rulers have been much more willing to resort to

repression when necessary and opposition has been largely resigned to

remaining within the institutional framework.” (Emphases added).951

The social norms of political apathy and pro-rights culture in

Singapore and Hong Kong respectively are both the results of the legal norms

instituted by the legislature and the judiciary, with the former playing the

leading role. In Singapore, repression by the PAP is possible because the

judiciary appears to share the party’s philosophy and strategy that an iron fist

is required in the interests of harmony, law and order and national security.

951

Stephan Ortmann, Politics and Change in Singapore and Hong Kong: Containing

Contention (Milton Park, Abingdon, Oxon; New York: Routledge, 2010), p 179.

273

Political apathy develops partly because of the chilling effect of the

disproportionate legal sanctions and partly because the PAP has been able to

satisfy the people’s material demands. The colonial government in Hong

Kong was restrained from resorting to repression partly by its democratic

political master in Westminster, partly by the Chinese government’s possible

intervention to protect its nationals and partly, by an independent judiciary

administering the thick rule of law. When repression is not available, the

tactics of co-option means the opposition’s reform demands which have

gathered some – though not majority – public support have to be acceded to.

This, coupled with the British government’s desire for a glorious retreat,

explains the colonial government’s various human rights initiatives in the run-

up to 1997. A strong pro-rights culture, therefore, was formed. After 1997, it

was fortified by an equally independent judiciary interpreting liberally the

fundamental rights and freedoms guaranteed by the Basic Law.

Thus, the political apathy in Singapore is largely the result of the

political leaders’ actions while in Hong Kong, the pro-rights culture has

developed owing to the political branches’ initiative. Without the political

branches’ support or at least forebearance, there is little the judiciary in either

place can do to cultivate a pro-rights culture. Similarly, to enhance the moral

legitimacy of the two governments would require the political branches to take

the lead. No matter whether one believes in juricentrism or polycentrism, it

cannot be denied that the judiciary can only play a support, supplementary

role.

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CHAPTER 12 –

CONCLUSION

In view of the significant difference between Singapore and Hong

Kong in terms of the rights culture, the Asian Values often cited by Singapore

leaders to justify cultural relativism are just a myth. The much higher degree

of human rights enjoyed in Hong Kong, despite its similarities with Singapore

in economic and social conditions, suggests that such a culture can be

cultivated by the state if it has the will to do so. Neither an entrenched bill of

rights nor a democratic political structure is a necessary or sufficient condition

for the formation of such a culture. A democratic political structure which

does not satisfy Dworkin’s principles of participation, stake and independence

may just provide the judiciary with the rationalisation to defer to the political

branches in the name of the counter-majoritarian difficulty. The rule of law is

then liable to become rule by law.

In the name of autochthony, Singapore has parted way with its legal

mother and also its legal brothers and sisters in the common law world as far

as the protection of fundamental rights is concerned. In contrast, in Hong

Kong, it is exactly because of the absence of a democratic political structure

that for the sake of their social legitimacy, the political branches have to

respect, protect and promote rights. That creates a pro-rights culture, which

constitutes a solid moral as well as political foundation for the judiciary to

conduct judicial review in a manner no less vigorous that that practised in the

democratic juridictions.

Like Waldron and Fallon, Bickel no doubt predicates his theory on a

rights-committed society. The passive virtues, as self-preservation techniques,

mean the judiciary has to balance between the risk of reprisals from the

political branches against that of frustrating the people’s rights expectation. In

275

Singapore, the people’s low rights expectation weakens the moral justification

as well as the people’s political protection which are required for the judiciary

to counter the purportedly majority decisions by the elected legislature. In

Hong Kong, the risk of reprisal by the HKSAR Government probably does not

exist since it requires a truly independent judiciary to bolster the social

legitimacy of the government’s decisions. The threat, perceived or real, comes

from the north because “judicial independence, though to some extent

recognised in constitutional and statutory provisions in China today, is by no

means an established practice in the operation of the legal and political

systems [there]”.952

If ever the judiciary has to resort to deference or

avoidance for the sake of self-preservation, it will be in relation to matters

highly sensitive to the Central Government, such as those with implications

for the principle of “one country, two systems”. Before doing so, for the sake

of its own social legitimacy, it will have to weigh very carefully the likely

reaction of the rights-committed people of Hong Kong. The distancing of the

appointment of judges from the political process contributes to, rather than

detracts from, the social legitimacy of judicial review.

Economic incentives and foreign investors’ confidence were cited by

Hong Kong’s colonial government before 1997 when pushing any human

rights legislation in the face of possible protest from the Chinese Government.

Singapore’s experience – and now China’s too – shows that investors care

more about profit, certainty and stability. The local people’s rights and

freedoms, such as the right of political participation which does not affect the

foreign investors personally, carry little, if any, weight in their commercial

decisions. The impetus for developing a rights culture has to be sought

internally.

952

Albert Hung-yee Chen, An Introduction to the Legal System of the People’s Republic of

China (Hong Kong; Singapore; Malaysia: LexisNexis, 3rd

edn, 2004), p 151.

276

To be fair to Singapore, it has been facing difficulties not existing in

Hong Kong: the internal tension arising from a multi-racial population and

security threats from neighbouring, much larger countries. A concentration of

political powers and a population committed to the collective interest were

considered, not without justification, to be necessary for the country’s survival.

The rapid improvement in the people’s livelihood provides the economic

justification for the sovereign’s illiberal means. The threat faced by Hong

Kong from its neighbour, now its sovereign, is the loss of freedom. The

maintenance of a world standard in the rule of law, judicial independence and

human rights is probably the only safeguard against that threat. Economically,

the rule of law and freedoms enjoyed in Hong Kong also constitute

competitive advantages for it to face the economic challenge from the

mainland, where much cheaper land, much cheaper labour and abundance of

capital are in supply.

The present systems in both Singapore and Hong Kong are

unsustainable, probably more so in Hong Kong. Owing to the fragmentation

of powers in Hong Kong, essential but controversial measures proposed to

meet the long-term needs – notably a sales tax to widen the tax base and the

future financing of medical services – have been shelved, apparently

indefinitely. The political parties, which hold the votes in the legislature but

can never become the government under the present political system, has no

political incentive to oppose the negative public opinions. The executive, on

the other hand, does not have the social and moral legitimacy to influence

public opinions and force the legislators’ hands. As a result of freedom

without democracy, Hong Kong is on the verge of becoming ungovernable.

The introduction of a democratic political structure which complies with the

management principle that whoever carries the responsibility must be granted

the necessary power is urgently required. Despite the NPCSC’s decision that

the election of the Chief Executive and the election of all members of the

LegCo “may be implemented” by universal suffrage in 2017 and 2020

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respectively,953

the prospect of a truly democratic political structure emerging

in Hong Kong in ten years’ time is dim given the distrust between the Central

Government and the “pan democrats” among the politicians.

In Singapore, as its present Prime Minister admits, the country needs,

for its economic development and the aspirations of its people, greater public

participation and “rigorous debates” in policies and national issues. However,

though that was said more than five years ago, the case laws covered in this

thesis show no sign that the judiciary is moving in the direction of enhancing

the freedom of expression. Presumably, being the branch which has neither

purse nor sword – and more importantly, nor the necessary support from a

rights-committed people – it is waiting for the initiative and clearer signals

from the political branches.

Singapore is a modern real-life rendition of Hobbes’s absolute

sovereign exercising unlimited powers. It works but at the expense of Chia

Thye Poh,954

Jeyaratnam, the adherents of Jehovah’s Witnesses, Emran and

many others.955

Put a person in Rawls’s original position. Would he / she

953

NPCSC’s decision adopted at its 31st Session on 29 December 2007.

954 A member of the Barisan Sosialis who was detained, under the Internal Security Act

without trial, for 32 years since 1966: “Singapore’s gentle revolutionary”, South China

Morning Post, 28 November 1998, p 15.

955 Mohamed Emran Bin Mohamed Ali v Public Prosecutor [2008] 4 SLR 411. Emran was a

drug addict in the process of weaning himself from Subutex. Subutex was a legally

consumable drug up to 14 August 2006: Johari bin Kanadi v Public Prosecutor [2008] 3 SLR

422. The judgment in Emran v PP contained nothing to suggest that Emran had any previous

conviction or was in any way under reasonable suspicion to be a drug trafficker. In about the

first week of November 2006, he was introduced to Kechik. One week after the introduction,

Kechik began to phone him two or three times a day claiming himself to be in desparate need

of the drug to relieve his withdrawal symptoms and asking to be supplied with the drug. One

week after Kechik’s first request, Emran, who empathised with Kechik’s withdrawal

symptom, obtained two tablets of Subutex. Kechik sent Ijat, an undercover Central Narcotics

Bureau officer, to collect. Emran was arrested when he passed the drugs to Ijat in return for

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rather live in Hong Kong, where Locke’s natural freedoms and equality

flourish but where, in the absence of a democratically elected sovereign to

operate the divided and limited government, there are signs of regressing to

the state of nature?

- END -

300 Singapore dollars. The prosecution did not present Kechik as a witness in the trial or

disclose his identity to the defence. Emran was sentenced to the minimum five years’

imprisonment and five strokes of the cane. He appealed on the ground that his right under art

12 (equality before the law) had been breached because Kechik was not charged. The court

held that Kechik’s identity should be protected regardless of whether he was an agent

provocateur or a passive informer. The entrapment was lawful because the government’s

conduct did not amount to “particularly egregious conduct” warranting judicial intervention.

Emran’s appeal was dismissed.