Singapore Law Gazette (August 2014)

An Official Publication of The Law Society of Singapore | August 2014

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Upgrading Works!is completed, Council decided to not hold back but start on the renovations right away. I am glad we did. Visiting the renovated premises for the fi rst time at the Council luncheon on 21 August 2014, I was happy to enjoy with members there, the new, more powerful and quieter air conditioners, brighter lighting, more comfortable and fi rmer chairs and the fl at screen TV. The renovated SCBR may be light years away from the level of plush furnishings and comforts of the VIP lounges at the airport, but the improvements here are palpable and it is the very least what our members deserve.

Renovations at SBR Premises

For the SBR premises, members will recall Council seeking views since 2013 on whether to rent additional or to buy new premises. At one of the Council luncheons last year, many members felt that in view of the strengthening property market, there was a case to be made for the existing SBR premises to be sold and for a larger property to be bought both as an investment for the future as well as to accommodate the growing Secretariat. Support for this view soon waned as the property market began to soften quite perceptibly by the end of last year and the economic situation dimmed further by early this year. Investment enthusiasm slowly gave way to conservatism and the risk appetite reduced considerably.

The SBR premises were meanwhile struggling to fi t our 65 staff members into space originally designed to accommodate 20. Although some of our staff members were re-deployed to our Golden Shoe PBSO offi ce, the squeeze at the SBR premises was still crying out for merciful relief. If we were not going to buy new premises, we had to do something, either create more space at the SBR premises or otherwise take additional rental space.

Offi ce rental rates unfortunately have not moved down as quickly as hoped. Calculations show that if the Society is to take additional space at another location, we would

August 2014 has been an unusually busy month. We moved operations back to our newly renovated State Courts Bar Room (SCBR) and moved operations out of our South Bridge Road (SBR) premises. And by the time you read this, we would have just launched the Societys Justice for All project, a roll out of a series of community outreach events and initiatives and which we hope will be enthusiastically supported by members as part of the Societys contribution to our nations SG50 celebrations.

In this issue on pages 5-9, you will see photos of the renovated SCBR as well as photos of the on-going renovations at the SBR premises and the architects impressions post renovations. As many members know, renovations at both the SCBR and the SBR premises are both long overdue. They were held back for different reasons. For the SCBR, renovations were held back pending the release of more details about the construction timelines involving the existing State Courts Building and the new State Courts Complex. For the SBR premises, we were closely tracking both the property trends as well as our space requirements; making sure that we do not rush into risky decisions involving the Society and our members funds.

New State Courts Bar Room

The SCBR is a favourite chill out place for many of our members. On a typical weekday morning, you will fi nd lawyers there in friendly banter, some tucking into a simple breakfast, groups in debate over the latest issues in Court or in society. As a member aptly puts it, In this Bar room, you will fi nd a bit of everything you would fi nd in a typical bar, except the alcohol! He has a point; so it will be and so it will remain, even after the renovations. This favourite chill out place was, however, showing signs of severe wear and tear and had looked in need of some urgent freshening up.

Although construction of the new State Courts complex got underway by middle of the year and works on the existing State Courts Building are expected once the new complex

01Presidents

Message

Singapore Law Gazette August 2014

Upgrading Works! 01Presidents Message M

Diary and Upcoming Events 05More Facilities for Members, Increased Capacity for Secretariat 06Michael Hwang, SC is Conferred Honorary Doctor of Laws Degree 10

NewsN

The Constitution of Our Constitution: A Vindication of the Basic Structure Doctrine 12When Rehabilitation Trumps Deterrence: PP v Lee Han Fong Lyon [2014] SGHC 89 22- A Case Note Syariah Criminal Justice Explained 28

FeaturesF

Legal Business Non Lawyer Ownership: The View from England and Wales 34Tea with the Law Gazette In Conversation with Lisa Sam, Chairperson of 36the State Courts Committee & Co-chairperson of the Small Law Firms Committee Pro Bono Publico CLAS Heroes (Part Two) 40The Young Lawyer Amicus Agony 43

ColumnsC

Alter Ego The New Singapore 44Bookshelf Costs in International Arbitration 46by Colin Y.C. Ong and Michael Patrick OReilly Travel A Very Caffeinated Day in Melbourne 48

LifestyleL

Notices Professional Moves 52Information on Wills 53N 55Appointments

A

Contents

Th e Singapore Law Gazette

An Offi cial Publication of Th e Law Society of Singapore

Th e Law Society of Singapore39 South Bridge Road, Singapore 058673Tel: (65) 6538 2500Fax: (65) 6533 5700Website: http://www.lawsociety.org.sgE-mail: [email protected]

Th e Council of Th e Law Society of SingaporePresident Mr Lok Vi Ming, SCVice Presidents Mr Th io Shen Yi, SC Mr Kelvin WongTreasurer Mr Gregory Vijayendran

Mr Lim Seng Siew, Ms Kuah Boon Th eng, Ms Rachel Eng, Mr Adrian Tan, Mr Steven Lam, Ms Sunita Sonya Parhar,

Ms Lisa Sam, Mr Anand Nalachandran, Mr Lee Terk Yang,Ms Usha Ranee Chandradas, Mr Chiam Tao Koon,Mr See Chern Yang, Mr Yeo Chuan Tat, Mr Paul Tan,Mr Josephus Tan, Ms Simran Kaur Toor, Mr Grismond Tien

Editorial BoardMs Malathi Das, Mr Prakash Pillai, Mr Chua Sui Tong, Mr Gregory Vijayendran, Ms Alicia Zhuang, Mr Benjamin Teo, Mr Cameron Ford, Ms Celeste Ang, Ms Crystal Ma, Ms Debby Lim, Ms Lye Huixian, Mr M Lukshumayeh, Mr Marcus Yip, Mr Rajan Chettiar, Ms Shen Xiaoyin, Ms Supreeta Suman, Mr Vincent Leow

Th e Law Society SecretariatChief Executive Offi cer Ms Tan Su-YinCommunications & Membership Interests Mr Shawn TohCompliance Mr Kenneth GohConduct Ms Ambika Rajendram, Mr K GopalanContinuing Professional Development Ms Jean WongFinance Ms Jasmine Liew, Mr Cliff ord HangInformation Technology Mr Michael HoPro Bono Services Mr Tanguy Lim, Ms Vimala Chandrarajan,Ms Nadine Yap, Ms Babara SeetPublications Ms Sharmaine LauRepresentation & Law Reform Mr K Gopalan

Publishing ReedElsevier(Singapore)PteLtd tradingasLexisNexisAssociate Director, Publishing, Singapore Terence LimDirector, Sales, Singapore and OSEA Angie OngEditor ChandranieCover Design Mohd Khairil JohariDesigner Mohd Khairil JohariWeb Administrator Jessica WangAdvertising Account Manager Anthony Eng For Advertising EnquiriesTel: (65) 6349 0172Email: [email protected] Markono Print Media Pte Ltd

LexisNexis, a division of Reed Elsevier (Singapore) Pte Ltd, is a leading provider of legal and professional information in Asia, with offi ces in Singapore, Malaysia, Hong Kong, India, England, Scotland, Ireland, Australia, New Zealand, Canada and South Africa. Th e complete range of works published by LexisNexis include law reports, legal indexes, major works, looseleaf services, textbooks, electronice products and other reference works for Asia.

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Th e Singapore Law Gazette is the offi cial publication of the Law Society of singapore. Copyright in all material published in journal is retained by the Law Society. no part of this journal may be reproduced or transmitted in any form or by any means, including recording and photocopying without the written permission of the copyright holder, application for which should be addressed to the law society. Written permission must also be obtained before any part of this publication is stored in a retrieval system of any nature. the journal does not accept liability for any views, opinions, or advice given in the journal. Further, the contents of the journal do not necessarily refl ect the views or opinions of the publisher, the Law Society or members of the Law Society and no liability is accepted or members of the Law Society and no liability is accepted in relation thereto. Advertisements appearing within this publication should not be taken to imply any direct support for, or sympathy with the views and aims of the publisher or the Law Society.

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probably need a little more than 3,000 square feet of additional space to accommodate the additional 25 work stations needed, together with a couple of small meeting rooms and a modest reception space. Assuming 3200 sq ft at $7 per square foot, that would mean $22,400 per month in rental or $268,800 per year, not including fi t out costs for this new space. Over three years, this would set the Society back $806,400 and with fi t out costs, the entire bill for three years of relatively modest additional space would be well in excess of $800,000.

We then compared what that sum of money could do if invested in renovation works for the SBR premises. After consulting architects, we realised we could renovate the entire SBR premises, fi t in fi ve meeting rooms (compared to the current three), create one new lounge and 55 work stations and offi ce cubicles for about the same sum. The number of new work stations and offi ce cubicles is almost double the existing number and will give us some margin for further expansion in the immediate future. Council then decided to proceed with the renovation project on the $800,000 budget. We engaged the professional services of Laud Architects, who were the runners up in the design contest for the new State Courts complex, to provide the architectural and design oversight for our project. The design brief asked for the premises to have a modern look, one that is understated yet tasteful, and for the space utilisation to be optimised. The entrance lobby will be completely revamped; the size of all meeting rooms will be optimised and increased, where possible, to accommodate bigger meetings more comfortably. We are meanwhile, considering making our meeting rooms available for members use, subject to appropriate terms and conditions.

Renovation works are now in full swing and making good progress. We are confi dent that come November 2014, members can look forward to new premises they can use and be proud of.

Justice for All

In late August, the Society also plans to launch our Justice for All project. It is a year-long roll out of various initiatives in consultation and collaboration with professional and community partners in line with our nations SG50 celebration. The project aims to encourage members participation in community outreach through use of our professional skills and expertise as well as to increase our own fi nancial

ability to initiate and run our various programmes. One of the very important events in this project is a fund-raising charity walkathon called Just Walk Justice on the Move. This is a 5.6 km walk in the city along a route linking the professions key stakeholders including the State Courts, the Attorney Generals Chambers, our Law Society SBR premises, the Ministry of Law and the Supreme Court. The event is planned to take place on 10 January 2015, the day immediately after the likely date of the Opening of the Legal Year 2015. We will be counting on every member to do his or her part to help raise funds for our community help projects in the run up to this event. Donations made or collected by members will be matched dollar for dollar and every dollar donated will attract tax deduction at 2.5 times its value. The multiplier effect for every dollar donated or raised by the event is immense and we are confi dent that its impact on the community will be a powerful and long lasting one.

The event is being supported by all the major stakeholders in the profession, including the Supreme Court, the Ministry of Law, the Attorney-Generals Chambers and the law schools of the NUS and SMU. In the next issue, we will carry more details of Justice for All. We look forward to members enthusiastic and generous support for both the Just Walk event and the Justice for All project. Remember, these are our projects for the people of Singapore and our celebration with them on the landmark occasion of our nations 50th birthday!

There are indeed exciting days ahead! Do have a look in this issue at glimpses of the exciting new look and facilities that you can expect at the SBR premises when the renovations are done. I am glad that we have taken action to renovate both the SCBR and SBR premises. They refl ect the growing needs generated by a fast growing membership base and both are modest but tangible expressions of the signifi cance with which Council regards members needs and concerns. I am satisfi ed that the decision to renovate the SBR premises is a good balance between the twin demands for space and the need to manage the use of members funds prudently and wisely. We are confi dent you will agree, come November 2014 after the completion of the upgrading works, that upgrading works!

Lok Vi Ming, Senior Counsel President The Law Society of Singapore

Continued from page 1

04Presidents Message


Diary

Upcoming Events3, 10, 17, 24 September and 9 October 2014Paralegal Certifi cation Course (11th Run)

2-4 October 20143rd South East Asia / Asia Pro Bono Conference 2014

21 October 2014Seminar on Trust Litigation

7 November 2014Day of Conveyancing Highlights 2014

14 November 2014Law Society Annual Dinner & Dance

2, 23 & 30 July 2014Basic Legal Secretarial CourseOrganised by the Continuing Professional Development Department5.00pm-7.30pm55 Market Street

Our Newly Renovated Bar Room at the State CourtsAfter several weeks closure during which the Bar room at the State Courts underwent renovations, the Bar room re-opened on 21 August showing off a spanking new coat of paint, new air conditioners, new sofas and chairs, a newly installed table with additional power sockets for members to work on their notebooks, newly fi tted toilets, an LED TV, and brighter, adjustable lighting. Below are some photos showing off the new furniture. Do drop by the Bar room and enjoy the new amenities!

05News


Diary and Upcoming Events

As members know, the Law Society Secretariat offi ce at 39 South Bridge Road (SBR premises) is currently undergoing renovations. The premises, a four-storey shop-house, was purchased in 1997 and initially housed only about 20 staff. Over the years, as the Secretariat strength grew to 65 staff to support the Societys growing membership and increased activities, space increasingly became a challenge. Over the last one and a half years, we have had to convert meeting rooms into additional work stations, and many staff members were working shoulder to shoulder; developments

which did not make for a conducive work environment. With the increasing membership base and the roll out of more pro bono initiatives, even more space will be required in the foreseeable future.

Council considered several options in 2013 and early 2014, including the purchase or rental of larger premises. Given the high property prices and the general uncertainty over the property market, many members we spoke with provided good counsel that the Society should not be

More Facilities for Members, Increased Capacity for Secretariat

The Secretariat with President Mr Lok Vi Ming, SC, saying farewell to the old offi ce before the renovations

06News


Law Society Office Renovations

ACTUAL VIEW FROM UNIT

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rushing into any decision to buy. We then began looking at rental options, essentially to supplement the existing space at our SBR premises.

The existing layout of our SBR premises was designed to accommodate about 30 work stations, about 35 short of the Secretariats strength of 65. Our calculations show that approximately 13,000 sq feet of space will be needed to house 65 work stations, including meeting rooms and common utilities spread over a couple of locations. In 2013, we were alerted to the availability of about 1,800 square feet of space at the Golden Shoe Carpark building at the knock down rental of about $6 per square foot per month. The space available there was just right for our Pro Bono Services Offi ce. We took a lease and as this space would be utilised almost entirely by our Pro Bono Services Offi ce, MinLaw funded the full renovation costs of about $50,000 for that offi ce.

Even with our SBR premises yielding approximately 8,000 square feet in available build up space, and the Golden Shoe space adding another 1,800 square feet, we are still about 3,200 square feet short of the space needed to accommodate the increased Secretariat staff strength. At $7 per square foot, the rental costs for such space would amount to $268,800 per year or $806,400 over three years. This sum would exclude the renovation costs of the additional premises. It is estimated that taking additional space of 3,000 square feet to last us three years would cost about $900,000. At the same time, the SBR premises, last renovated in 2009, is showing the effects of wear and tear as a result of intensive usage over the years. Many fi ttings and fi xtures are in need of urgent repair and replacement. More importantly, the space utilisation can be optimised.

Experts were consulted and Council was advised that a more effi cient lay out can yield bigger conference and meeting rooms, two additional meeting rooms and an almost doubling of the number of work stations from 30 to 55. This will more than accommodate the existing staff strength and still give us room for future expansion (of the current strength of 65 staff members, 18 can be stationed at Golden Shoe, leaving 47 at the SBR premises. The 55 work stations, therefore, give us some margin to accommodate

an increase in staff strength). The decision was then made to renovate the SBR premises.

Laud Architects (fi rst runners up in the tender for the new State Courts building) was appointed to work with Council to give the existing premises a total face-lift while meeting anticipated future needs. After an extensive tender process assisted by our architects and many rounds of negotiations (on price and quality of fi ttings), the contractor was selected, plans were fi nalised and renovations began on 1 August 2014. The estimated cost for the renovations is $800,000 and efforts have been made to keep costs to a minimum, by re-using current equipment where possible, such as the offi ce servers, computers, compactors as well as VRV air conditioning systems. The renovation cost compares very favourably to taking additional premises elsewhere.

In the interim period, most of our staff have relocated to a serviced offi ce while our reception is stationed on the 10th fl oor of Golden Shoe Carpark to handle walk in visitors and deliveries. Our Pro Bono Services Offi ce continues to operate out of our offi ces at the State Courts and Golden Shoe Carpark. We expect the renovations to be completed by 31 October 2014.

On the next page are some photos of the premises before the renovations as well as the architects impressions of how the offi ce will look like after completion. The primary objectives are to increase seating and work capacity for our staff and add to the number of meeting rooms for the use of our committees and possibly for you, our members. The design aims for the premises to have a modern look, one that is understated yet tasteful. We also want to keep costs low whilst using materials with reasonable quality. The entrance lobby will be completely revamped and two meeting rooms will be added to it. The size of all other meeting rooms will be optimised and increased where possible to accommodate bigger meetings. We are considering making them available for members use, subject to appropriate terms and conditions.

We will keep members updated on the progress of the renovations and look forward to welcoming you to the refurbished premises in November 2014!

08News



Before Renovations(Architect's Impressions)

Lobby

Conference Room

Work Stations

After Renovations

Work SttationsSt

09News



The Law Society warmly congratulates our member and Past President, Mr Michael Hwang, SC who was recently conferred an honorary Doctor of Laws degree by the University of Sydney.

Citation

Deputy Chancellor, I have the honour to present Michael Hwang SC to you for the conferring of the degree of Doctor of Laws (Honoris Causa).

Like the three riddles in Puccinis Opera Turandot, a key to Michael Hwangs life has been three important links with Sydney. The fi rst occurred when he was born here. After Singapore fell during the Second World War, his father escaped to Australia and picked up the threads in Sydney. He met here the daughter of the then Ambassador of the Republic of China, whom he married. Michael Hwang was then born in Sydney and acquired Australian citizenship by birth. He lived here until his family moved back to Singapore and the fi rst link was temporarily severed.

Michael Hwang undertook undergraduate and post graduate studies at Oxford University, to which he won entry by scholarship examination and earned the title of College Scholar. Following his graduation, he reopened his links with Australia and was appointed by this University in 1966-67 to teach law to undergraduates. He worked principally with the late Professor W.L. Morison, one of the great law teachers of that time. Many of his students have gone on to fame and fortune. He began a close association with International House, where he was one of the fi rst cohort of residents in 1967. He later became the fi rst chairman of its Members Association. He has maintained his links with International House and recently returned to be honoured for those ongoing links.

Back in Singapore, Michael Hwang had joined what is now Singapores largest legal fi rm. In 1991, he was appointed a judicial commissioner of the Supreme Court of Singapore. When he retired from his fi rm in 2002, he might have pursued a life of leisure.

Michael Hwang, SC is Conferred Honorary Doctor of Laws Degree

10News


Sharing the Good Tidings

However, by this stage Michael Hwang had been appointed one of the fi rst 12 Senior Counsel of Singapore. He began to mark out a new life in the burgeoning new fi eld of international commercial and investment treaty arbitration. It is here that he has made his special mark. Successively he has been appointed a Commissioner of the United Nations Compensation Commission in Geneva; a member of the Permanent Court of Arbitration at The Hague; a member and Vice-Chairman of the International Court of Arbitration in Paris; a Court Member of the London Court of International Arbitration and a Council Member of the International Council for Arbitration in Sports at Lausanne. Michael also played a signifi cant role in the development of the highly successful and infl uential Singapore International Arbitration Centre. He then took part in assisting similar bodies in Hong Kong, and Dubai. He has spoken and written extensively on arbitration, culminating in the publication of a book Selected Essays on International Arbitration late last year. Since 2010, he has been designated Chief Justice of the Dubai International Financial Centre Courts. Michael Hwang is a fi ne example to a new generation of lawyers worldwide who are engaged in the opportunities of international commercial and investment treaty arbitration. In the contemporary world of international trade, the need for accomplished, honest, professional arbitrators, respected by all sides, is obvious. The law school of this University has recognised this need by teaching courses

and recruiting top scholars who promote knowledge of, and expertise in, this new province of law.

Michael Hwang is an outstanding example of the fresh opportunities that are opening up to our law graduates today. He has embraced a new fi eld; but never forgotten the lawyerly skills that he taught in this University 45 years ago.

So arrives the third phase in his links with us. Although long ago he relinquished his Australian citizenship to embrace that of his home in Singapore, now we once again claim him back and name him as one of our own. The Senate of this University resolved that he be honoured with the degree of Doctor of Laws Honoris Causa. This is to record our thanks for his early, active life in the Law School and at International House and to thank him for his ongoing connections with us in the land of his birth. We rejoice in his global accomplishments and the University of Sydney embraces the new opportunities of service to the rule of law. We hope that, freshly reconnected with this University, by this degree, Dr Michael Hwang may continue to share with its teachers and lawyers his insights on the future of the law, including in international commercial and investment treaty arbitration. His is an example that many Sydney law graduates will emulate and learn from.

Notice of Change of ParticularsMembers are required to submit a Notice of Change of Particulars through eLitigation (https://www.elitigation.sg/home.aspx) whenever there is any change in the particulars relating to your practice, eg if you move from one law practice to another, if there is a change in your designation, or if you cease to practise. The Notice of Change of Particulars can only be submitted through the eLitigation account of the individual lawyer. If you do not have an eLitigation account, you may approach the Service Bureau for assistance, subject to payment ofapplicable fees and charges. Please refer to a step-by-step guide on submitting a Notice of Change of Particulars provided by the Supreme Court at https://app.supremecourt.gov.sg > eLitigation > Practising Certifi cate e-Filing Service.

11News


Sharing the Good Tidings

Outlier

1. The fi rst articulation of the basic structure doctrine in Singapore was met with express rejection by the High Court. In that case, the High Court held that the doctrine was inapplicable to the Singapore Constitution (see Teo Soh Lung v Minister of Home Affairs [1989] 1 SLR(R) 461 (Teo Soh Lung (HC))). This fi nding was reached against the tenor of an earlier decision of the Court of Appeal involving the same applicant,1 and Privy Council cases which have expounded on the unwritten principles fundamental to Westminster model constitutions.2 We will argue that the rejection of the basic structure stands on a shaky foundation and the tide of subsequent cases suggests a sea change is at hand.

2. The earlier Court proceedings involving the applicant in Teo Soh Lung (HC) had arisen from orders for detention under the Internal Security Act (ISA). The fi rst order for detention was quashed by the Court of Appeal in Chng Suan Tze v Minister for Home Affairs and others and other appeals [1988] 2 SLR(R) 525 (Chng Suan Tze) on the ground that the Presidents satisfaction under s 8(1) of the ISA had not been shown since the order for detention had been signed by the Permanent Secretary and not the President. The Court of Appeal also held, obiter, that the Courts could review the Presidents discretion under s 8(1) of the ISA, including the grounds and the facts on which the President had expressed his satisfaction:

[T]he notion of a subjective or unfettered discretion is contrary to the rule of law. All power has

legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power. If therefore the Executive in exercising its discretion under an Act of Parliament has exceeded the four corners within which Parliament has decided it can exercise its discretion, such an exercise of discretion would be ultra vires the Act and a court of law must be able to hold it to be so.3

3. We will refer to the principle as elucidated in Chng Suan Tze that all power has legal limits as the Legality Principle. The power of the Court to review the exercise of legislative and executive power is a function

Th e Constitution of Our Constitution: A Vindication of the Basic Structure Doctrine

The basic structure doctrine posits that a constitution has certain written or unwritten features so fundamental that they cannot be abrogated through constitutional amendments. This was once considered heresy. However, recent judicial pronouncements suggest the beginnings of a reformation. This article will trace the evolution of the basic structure doctrine in Singapore. Next, we will consider whether this evolution from outlier to open acceptance is to be welcomed. In this regard, we will argue that a thin conception of the basic structure, comprising only the non-derogable content necessary for the fulfi lment of the purposes of a constitution (including, among other things, the separation of powers and the principle that all powers have legal limits) is intrinsic to the concept of a constitution.

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of the Legality Principle, which itself derives from the separation of powers and the need for a system of checks and balances on powers. We will argue that the Legality Principle against the separation of powers form the basic structure of the Constitution of the Republic of Singapore (1985 Rev Ed) (referred to as the Singapore Constitution or the Constitution). The acceptance of the basic structure, so framed, does not lead to a one-way ratchet that only increases judicial power, as the Courts have been judicious in balancing the Legality Principle against the separation of powers, the latter of which includes the concepts of non-justiciability4 and the presumption of constitutionality5 (see paras 28 and 32 below).

4. Following Chng Suan Tze, the applicant was released. She was then served with a new detention order signed by the President. A month later, Parliament enacted amendments to the Constitution and ISA (the January 1989 Amendments) which, according to counsel for the respondent in Teo Soh Lung (HC), had the combined effect of confi ning judicial review for detention orders to compliance with any procedural requirement.

5. Counsel for the applicant had sought to argue that the constitutional amendments, whilst in compliance with art 5 of the Constitution, had contravened the implied limitations upon the power to amend a written constitution so as to damage the basic features of the Constitution or so as to destroy its basic structure.6 In other words, quite apart from the procedural limits in art 5, there were unwritten substantive limits which formed the basic structure of the Constitution. These limitations included usurping judicial power exclusively vested in the judiciary, in breach of the separation of powers, and acting retrospectively.7 Relying on the seminal Indian Supreme Court decision of Kesavananda Bharati v State of Kerala AIR 1973 SC 1461 (Kesavananda Bharati), counsel argued that a constitutional amendment that sought to destroy the basic structure of the Constitution would be beyond the powers of Parliament and could be struck down by the Courts.

6. F A Chua J rejected this argument on the following three grounds. We will argue that none of these grounds necessitated the conclusion that the Singapore Constitution does not have a basic structure.

7. Chua Js fi rst argument was textual. He reasoned that if Courts had the power to impose limitations on Parliaments power to amend the Constitution, they would be usurping Parliaments legislative function contrary to art 58 of the Constitution.8 He further inferred

that the absence of express limits in the Constitution meant that Parliaments power to amend was wide and unlimited9:

If the framers of the Singapore Constitution had intended limitations on the power of amendment, they would have expressly provided for such limitations. But Art 5 of the Constitution does not put any [substantive] limitation on the amending power.10

8. We would point out that the inference from the silence of the Constitution is problematic for three reasons. First, it amounts to a denial of the Legality Principle as espoused in Chng Suan Tze.

9. Second, the absence of an express prohibition on the exercise of legislative power can be taken to be indicative of, rather than fatal to, the existence of the basic structure. It is well-established that there are prohibitions implicit in the nature and practice of a Westminster model constitution. Thus, in Moses Hinds v The Queen [1977] AC 195 (Hinds), the Privy Council made the following observations regarding the Jamaican Constitution, a Westminster model constitution:

It is taken for granted that the basic principle

of separation of powers will apply Thus the constitution does not normally contain any express prohibition upon the exercise of legislative powers by the executive or of judicial powers by either the executive or the legislature.11

10. Nonetheless, Chua J chose to focus instead on a later statement in Hinds that the constitution provides machinery whereby any of its provisions may be altered by those peoples through their elected representatives in the Parliament acting by specifi ed majorities, which is generally all that is required.12

11. We submit that this later statement in Hinds does not detract from the earlier statement that the separation of powers and the Legality Principle are basic to a constitution (cited at para 9 above). First, the later statement referred only to the allocation of powers being altered; it did not touch on the abrogation of such powers.13 Second, the later statement seems to refer to the amendment of express provisions, whereas the earlier statement refers to implicit basic principles. Therefore, Hinds does not stand for the proposition that the basic principles may be amended upon mere compliance with procedural requirements.

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12. The principle that silence does not negate the basic structure can also be seen in Liyanage v The Queen [1967] 1 AC 259 (Liyanage). In that case, the Ceylon Constitution, another Westminster model constitution, was silent on the vesting of judicial power. The Privy Council held that judicial power continued to vest in the judiciary where it had lain for more than a century, and the silence was not consistent with the judicial power shifting to the executive or legislature.14

13. This reading of the cases is supported by the eminent Professor S A de Smith who has opined that the Privy Councils dicta in Liyanage and the earlier case of Bribery Commissioner v Ranasinghe [1965] AC 172 indicate that certain provisions of the [Westminster model constitution] were unalterable by the prescribed amending procedure.15

14. Third, and most importantly, silence is not probative

either way of the existence of the basic structure as the basic structure is not tied to the framers intentions but to the function inherent to any constitution. The basic structure represents the core minimum of what is required for any constitution to work. Just as the Palace of Westminster could not stand without its buttresses, a constitution would crumble without its basic structure, a point which we will return to at the end of this article (see paras 38-39 below).

15. Chua Js second argument was that the differences in the making of the Indian Constitution and the Singapore Constitution meant that unlike India, the basic structure doctrine did not apply here.16 As an aside, these differences were not elaborated upon in the judgment. While we recognise the historical differences in the passage of the Indian Constitution and the Singapore Constitution, we note that both constitutions perform the same function of defi ning and limiting the scope of power (see also para 44 below). The same functional core minimum thus inheres to both, and indeed to all constitutions.

16. Chua Js third argument was that other jurisdictions with a Westminster model constitution, in particular Malaysia, had rejected the basic structure doctrine.17 Even leaving Hinds and Liyanage aside, this no longer represents the state of the law in Malaysia and in several other jurisdictions. In Sivarasa Rasiah v Badan Peguam Malaysia & Another [2010] 2 MLJ 333 (Sivarasa Rasiah), the Malaysian Federal Court unequivocally recognised the basic structure:

[I]t is clear from the way in which the Federal Constitution is constructed there are certain features

that constitute its basic fabric. Unless sanctioned by the Constitution itself, any statute (including one amending the Constitution) that offends the basic structure may be struck down as unconstitutional.18

17. In fact, the basic structure doctrine has recently received favourable treatment by Courts interpreting written (eg Belize,19 South Africa20), and unwritten (eg the United Kingdom21) constitutions.

18. We would add that the fact that our Constitution is

based on the Westminster model has recently been used to support, rather than deny, the existence of the basic structure (see para35 below).

19. It should be noted that the High Courts holding on the basic structure is strictly obiter dicta since it had found that none of the January 1989 Amendments had destroyed the basic structure of the Constitution (assuming there was one).22

20. On appeal, the Court of Appeal in Teo Soh Lung v Minister of Home Affairs and Others [1990] 1 SLR(R) 347 (Teo Soh Lung (CA)) upheld the High Courts dismissal of the application on the factual basis that the applicant was unable to adduce evidence that the detention of the appellant was made for reasons which had nothing to do with national security.23 Notably, the Court expressly declined to rule on whether: (i) the January 1989 Amendments confi ned judicial review for detention orders to compliance with procedural requirements; or (ii) the basic structure doctrine applied to the Singapore Constitution.24 As a result, the law on these issues remains an open question.

21. While Chua Js holdings have been followed by a later High Court decision,25 this does not create binding precedent on future applications for judicial review to the High Court as the High Court is not bound by its earlier decisions.26

22. To recapitulate, we have shown that the rejection of the basic structure rests on precarious foundations. In the next section of this article, we will focus on recent judicial and extra-judicial pronouncements which are consistent with the acceptance of the basic structure.

Open Acceptance

23. Signifi cantly, in February 2012, the then Chief Justice Chan Sek Keong delivered a lecture27 where he opined that the basic structure doctrine applied to the Singapore Constitution and that it included judicial power:

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The judicial power is part of the basic structure of the Constitution and its exercise through judicial review is the cornerstone of the rule of law. It is the means by which the courts check illegality, whether of legislative or executive acts.28

24. Chan CJ then referred to Kesavananda Bharati, which had laid down the basic structure for the Indian Constitution and had recognised judicial review as part of that structure. He observed that Teo Soh Lung (CA) had declined to decide whether the High Court was correct to hold the basic structure doctrine inapplicable, and noted that academics may well have to revisit their analysis on this issue.29

25. This tacit, if not open, acceptance of the basic structure doctrine has not come about by sudden revolution. Our analysis of a string of recent Court of Appeal decisions shows that the basic structure has formed an essential, if unarticulated premise, in the Courts reasoning. Further, it is submitted that the reasoning in these decisions provides an emphatic riposte to the three objections that Chua J raised against the basic structure doctrine.

Yong Vui Kong v Attorney-General [2011] 2 SLR 1189 (Yong Vui Kong)

26. The fi rst decision of note is Yong Vui Kong. There, the appellant had been convicted of a capital drug traffi cking offence and sentenced to death. After his appeal was dismissed, he submitted a clemency petition to the President pursuant to art 22P of the Constitution. Clemency was denied and he applied to judicially review that decision. The respondent argued that the exercise of the clemency power was not justiciable as it was an extra-legal, extra-judicial and extraordinary [power].30 The Court of Appeal disagreed and held that the clemency power was subject to judicial review. The cornerstone to the Courts conclusion was the Legality Principle: all legal powers, even constitutional powers like clemency, have legal limits:

In any modern State whose fundamental law is a written Constitution based on the doctrine of separation of powers (ie, where the judicial power is vested in an independent judiciary), there will (or should) be few, if any, legal disputes between the State and the people from which the judicial power is excluded31

This passage shows that the Legality Principle is

central to any modern State whose fundamental

law is a written Constitution based on the doctrine of separation of powers. The unarticulated premise here is that all constitutions possess certain fundamental, common features. One may even venture that these features, which include the Legality Principle, cannot be abrogated without altering the very nature of our Constitution qua constitution.

27. The Legality Principle was not only used to trump the argument that constitutional powers may be non-justiciable. It also featured in more nuanced ways. First, it was deployed as an interpretive tool. In this regard, Chan CJ reasoned that art 22P(2), which requires the President to send certain report(s) to the Cabinet for its consideration, necessarily implies a constitutional duty on the Cabinets part to consider those materials impartially and in good faith before it advises the President.32 Otherwise, the rule of law would be rendered nugatory.33 Thus, the Legality Principle was used to explain why art 22P(2) must necessarily be read to impose limits, in this instance, by imposing a duty of due consideration on the Cabinet. In later decisions, we will see that Singapore Courts tend to use the basic structure doctrine as an interpretive tool, as opposed to the role it has traditionally occupied in other jurisdictions as a trump to strike down errant constitutional amendments (see para 31 below).

28. Second, the Legality Principle was used to counterbalance the separation of powers another principle of the basic structure. Chan CJ observed that the clemency power was both a legal power and a power of an extraordinary character.34 While the Legality Principle would point in favour of the clemency power being justiciable, it was equally important that the clemency power was a constitutional power vested exclusively in the Executive.35 Accordingly, Chan CJ found that the power was only justiciable on art 22P grounds. This illustrates how the basic structure may in fact restrain an expansive right of judicial review under the Constitution, a point we return to later (see para 47 below).

Tan Eng Hong v Attorney-General [2012] 4 SLR 476 (Tan Eng Hong)

29. In Tan Eng Hong, the Court of Appeal, in allowing the application for leave to judicially review the constitutionality of s 377A of the Penal Code, held that the function of the Constitution was to ensure that the institutions it created were governed by the rule of law, and that this could only be guaranteed if the Constitution was supreme:36

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Article 4 provides for one of the most important features of the Constitution, viz, that it is the supreme law of Singapore. The supremacy of the Constitution is necessary for the purposes of the Constitution to be protected as it ensures that the institutions created by the Constitution are governed by the rule of law, and that the fundamental liberties under the Constitution are guaranteed. (emphasis added)

It is notable that the Court adopted a functional analysis; reasoning from the function of the Constitution to its necessary components.

30. Crucially, Tan Eng Hong demonstrates the reductio ad absurdum of Teo Soh Lung (HC). If Chua Js dicta is taken to its logical conclusion, it would mean that a constitutional amendment which purports to repeal the supremacy of the Constitution (subverting the rule of law) would have legal effect so long as it satisfi es the procedural requirements under art 5 an unsound result.

Vellama d/o Marie Muthu v Attorney-General [2013] 4 SLR 1 (Vellama)

31. In Vellama, the applicant applied for, among other things, a declaration as to the proper construction of art 49 of the Constitution. Although the Court of Appeal dismissed the application on a preliminary point, it went on to examine the proper construction of art 49.37 Just as in Yong Vui Kong, the Court deployed the basic structure doctrine, in this case the Legality Principle, as an interpretive tool for explaining why art 49 imposes an obligation on the Prime Minister to call a by-election within a reasonable time:38

while we accept that the Prime Minister should be accorded a measure of latitude in deciding when to call for election to fi ll a vacancy, it does not follow from this fl exibility that he would, therefore, be entitled to defer the calling of an election to fi ll a vacancy indefi nitely we would reiterate that a Member represents and is the voice of his constituents. If a vacancy is left unfi lled for an unnecessarily prolonged period that would raise a serious risk of disenfranchising the residents of that constituency. There is thus a need to balance the rights of the voters in a Parliamentary system of government and the discretion vested in the Prime Minister to decide when to call for by-elections to fi ll a vacancy. It is also a basic proposition of the rule of law that all discretionary power is

subject to legal limits: see [Chng Suan Tze] at [86] (emphasis added)

31. As in Yong Vui Kong, the Court had to balance two competing principles of the basic structure the Legality Principle and the separation of powers. The Court thus rightly accorded a degree of due deference to the Prime Minister since the situation was dynamic, and no pre-determination of the Prime Ministers considerations would be warranted.39

32. The reasoning of the Court in Vellama also presents an interesting thought experiment for the application of the basic structure doctrine: if Parliament amends art 49 to state that the Prime Minister is not under a constitutional duty for casual vacancies to be fi lled,40 the Courts reasoning in Vellama (viz, that an empty seat for a prolonged time carries a serious risk of disenfranchising the residents of that constituency) would continue to hold true. If so, would the basic structure doctrine, particularly the Legality Principle, be powerless in the face of such an amendment?

Mohammad Faizal bin Sabtu v Public Prosecutor [2012] 4 SLR 947 (Mohammad Faizal (HC))

34. The clearest recognition of the basic structure doctrine to date is found in the case of Mohammad Faizal (HC), where Chan CJ (sitting as the High Court) affi rmatively stated that "the principle of separation of powers ... is part of the basic structure of the Singapore Constitution".41 The question of law referred for determination in Mohammad Faizal (HC) was whether s 33A of the Misuse of Drugs Act, in requiring the Court to impose a mandatory minimum sentence, constituted an impermissible legislative intrusion into the judicial power and violated the principle of separation of powers.

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35. In answering the question in the negative, the Court fi rst looked at Singapores constitutional framework. The Court observed that all Westminster model constitutions distribute the sovereign power of the State among the Legislature, Executive and Judiciary. As the separation of powers is conceived as a sharing or a division of sovereign power, it is a basic feature of all constitutions based on the Westminster model.42 In reaching this conclusion, the Court drew on the case of Hinds. As mentioned earlier, while the term basic structure was not used in that case, the Privy Councils reasoning that principles like the separation of powers are left to necessary implication43 clearly accepts that a constitution is premised on certain unwritten basic principles. This is, in effect, recognition that the separation of powers is an element of the basic structure of Westminster model constitutions.

36. The applicants in Mohammad Faizal subsequently sought leave to refer the same questions of law to the Court of Appeal, which denied the application on the ground that the High Court had clearly explained its decision.44 While the Court of Appeal did not pronounce on the basic structure, it opined that the High Court had accorded the questions a holistic and comprehensive treatment.45

Why does Our Constitution Have a Basic Structure?

37. The above survey begs an existential question why does our Constitution, or any constitution for that matter, have a basic structure?

38. The basic structure is intrinsic to, and arises from, the very nature of a constitution and not legislative or even judicial fi at. At its uncontentious minimum, a constitution sets out how political power is organised and divided between the organs of State in a particular society.46 In other words, the constitution is a power-defi ning and, therefore, power-limiting tool. In Singapore, the Courts, as the organ responsible for interpreting the Constitution, have acknowledged as much through the Legality Principle. Parliament, as the organ that initiates constitutional amendments, was the fi rst to acknowledge this. The then-Prime Minister Lee Kuan Yew, in his concluding remarks at the second reading of the Constitutional (Amendment) Bill 1965, observed that:

The main thing about the Constitution is that it must work It is my hope that we will be able to produce before this House a document which will be workmanlike, with a fair spread of the powers

of Executive authority, checks and balances for a proper account of the use of these powers, and, most important of all, ensure without major amendment the continuance of good and orderly government. 47 (emphasis added)

39. For a constitution to work it must clearly defi ne a fair spread of the powers of and checks on each organ of the State. It follows that the basic structure, the immutable essence of a constitution, must refer to those principles that are fundamental to this power-limiting function. This would explain why Chan CJ proposed judicial power and the separation of powers as part of the basic structure. It would also explain why basic structure-type reasoning appears most prominently in cases, like Yong Vui Kong, Tan Eng Hong, Vellama, and Mohammad Faizal which concern the legal limits of executive power.

40. Further, from the perspective of a legal positivist, the answer is clear: the organs of State responsible for interpreting and amending the Constitution have acknowledged the existence of the basic structure. The seeds of this answer can be found in Chan CJs article. His views are particularly of note as he was on the coram of the Court of Appeal in both Chng Suan Tze and Teo Soh Lung (CA). In his lecture, he reasoned as follows:48

(1) while the January 1989 Amendments truncated judicial review regarding national security cases, in so doing, Parliament implicitly recognised that all other kinds of executive acts are subject to full judicial review49 and the Legality Principle; and

(2) after Teo Soh Lung (CA), the courts have applied the Legality Principle by way of judicial review on numerous occasions (the implication being that Parliament has not further truncated judicial review in response to or in anticipation of court scrutiny).

Therefore, judicial power, and its exercise through judicial review, is part of the basic structure of the Singapore Constitution because it has been acknowledged albeit tacitly as such by Parliament through an overt legislative act (as in the case of (1)), and its consistent, continuing convention of non-interference with judicial review (as in the case of (2)).

41. It then follows that the objection that [w]hat Parliament gave, Parliament could take back50 is a non sequitur. That argument confuses the issue of whether the

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basic structure can be amended as a matter of political reality with whether it would be lawful to do so. More fundamentally, the basic structure is not tied to the source of the Constitution but to its core function as a power-limiting device.

42. The (il)legality of amendments to the basic structure has also been put beyond doubt in jurisdictions like Germany, Turkey and Brazil,51 where the basic structure was expressly codifi ed by way of so-called eternity clauses in the respective constitutions. For example, art 79(3) of the Basic Law of Germany52 was introduced by its framers to prevent the subversion of democracy through the use of legal measures as had happened with the Weimer Constitution.53 In the Southwest State Case,54 the German Federal Constitutional Court held that there exists a rule of constitutional interpretation, that any constitutional provision must be interpreted in such a way that it is compatible with those constitutional principles that are so fundamental and so much an expression of a law that has precedence even over the constitution.55

43. However, the locus classicus of the basic structure doctrine, Kesavananda Bharati, involved the interpretation of the Indian Constitution, which does not have an express eternity clause. In Kesavananda Bharati, the Indian Supreme Court reasoned that the basic structure, in particular judicial review, could not be amended away by Parliament since it had not been bestowed by Parliament;56 the Indian Constitution having been drafted and adopted by the Constituent Assembly. Thus, what Parliament had not given, it could not take away.57

44. The diffi culty with the German and Indian experiences is that they do not directly apply to Singapore. There is no eternity clause in the Singapore Constitution and many of our constitutional provisions were brought into force by an ordinary Act of Parliament58 Even so, it seems absurd to suggest that these differences are suffi ciently material to warrant a fi nding that the Singapore Constitution does not perform the same power-limiting function as the German or Indian Constitution, and that it is not as equally in need of the separation of powers, the Legality Principle, and other principles of the basic structure. Therefore, we argue that the Singapore Constitution does possess a basic structure.

Is the Basic Structure a Good Th ing?

45. This functionalist rationale for the basic structure carries a number of signifi cant implications.

46. First, the basic structure is a limited doctrine. It is arguable that fundamental rights are not a necessary part of the basic structure of a constitution. This is because fundamental rights relate to rights and liberties of citizens and do not defi ne the limits to the powers of and checks on each organ of the State. What is not fundamental to a constitution cannot form part of its basic structure. Even so, it might be possible to argue that the protection of fundamental rights might serve a power-defi ning role, insofar as it serves to delimit the powers of each organ of the State vis--vis its citizens. As noted in Tan Eng Hong, the reason for the inclusion of the supremacy clause was to ensure that the Constitution managed to perform its functions of providing meaningful protection of fundamental rights and ensuring effective safeguards against the abuse of majority power.59 Moreover, it is notable that other jurisdictions have included fundamental rights in the basic structure.60 While this is so, it could be said that this is to confuse the basic structure of a constitution with what is desirable in a good constitution, and their inclusion has not followed an analysis of the function of the constitution. We would argue that the basic structure should be limited to the non-derogable minimum required for the constitution to perform its power-limiting function.

47. Second, the basic structure doctrine may not necessarily expand the scope of judicial review. A proper understanding of the interplay between the Legality Principle and separation of powers may instead lead to judicial restraint in appropriate cases, for example, in the face of a non-justiciable subject-matter61 and/or the presumption of constitutionality.62

48. Third, judicial excursions into the basic structure may be seen as an attack on representative Government.

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A Court that strikes down a constitutional amendment does so in the face of a two-thirds majority in Parliament. To illustrate, it may even be the case that a constitutional amendment to abolish the elected presidency may run into basic structure objections63 even though it is supported by referendum. The Indian experience has taught us that the invocation of the basic structure doctrine is not without controversy. Thus it has been said that even a limited analysis of what the court decided [in Kesavananda Bharati] is as delicate and diffi cult as that directed to the unravelling of the signifi cance of the smile of Mona Lisa.64 Even so, the basic structure doctrine has grown fi rm roots in India, and the calibration of the division of State power amongst the organs of State has grown up around it.

49. Fourth, few Courts around the world have had the opportunity to squarely analyse the basic structure doctrine as a matter of ratio decidendi. Even fewer Courts have applied the doctrine to strike down a constitutional amendment. The upside is that this is a sign of a healthy democracy where it is the exception rather than the norm that Parliament acts contrary to the rule of law. The downside is that Courts will have limited opportunities to excavate every buttress undergirding the basic structure principles which may go beyond the Legality Principle and separation of powers.

50. However, it is clear that more jurisdictions have come to accept the basic structure doctrine. For example, in R (Jackson) v Attorney-General [2006] 1 AC 262 (at 302-303), Lord Steyn opined as follows:65

In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts the House of Lords may have to consider whether this is [a] constitutional fundamental which even a sovereign Parliament cannot abolish.

If an unwritten constitution, premised on Parliamentary sovereignty, possesses an immutable basic structure, a fortiori, the Singapore Constitution, as a written constitution premised on the supremacy of the Constitution, certainly has one as well.

51. As far as our Courts are concerned, the excavation of the basic structure has only just begun.66 Even at this exploratory stage, the key insight that has been unearthed, most prominently from the ground-breaking writings and judgments of Chan CJ, is this: it is anathema for a constitution to bestow unlimited powers upon an institution or allow any institution to defi ne their own powers. Therefore, it should be uncontroversial

that the separation of powers and the Legality Principle are among the components of the basic structure.

LLB(LSE), BCL^ BA (Oxon), BCL* The views expressed in this article are the personal views of the author and do

not represent the views of the Attorney-General's Chambers.

Notes

1 Chng Suan Tze v Minister for Home Aff airs and others and other appeals [1988] 2 SLR(R) 525.

2 See eg Moses Hinds v Th e Queen [1977] AC 195; Liyanage v Th e Queen [1967] 1 AC 259; Bribery Commissioner v Ranasinghe [1965] AC 172 at 193-194. Th is is expanded upon at paras 9-13 below.

3 [1988] 2 SLR(R) 525 at [86].

4 see eg Lee Hsien Loong v Review Publishing Co Ltd and another and another suit [2007]2SLR(R)453 at [98].

5 see eg Ramalingam Ravinthran v Attorney-General [2012]2SLR49 at [44]-[48].

6 [1989] 1 SLR(R) 461 at [30].

7 [1989] 1 SLR(R) 461 at [31].

8 [1989] 1 SLR(R) 461 at [35].

9 Ray Js dissent in Kesavananda Bharati, cited in Teo Soh Lung (HC) at [33].

10 [1989] 1 SLR(R) 461 at [34].

11 [1977] AC 195 at 212.

12 [1977] AC 195 at 214, cited in Teo Soh Lung (HC) at [37].

13 see Mahomed DP Js dicta in the South Africa Constitutional Court decision of Premier of Kwazuly Natal v President of South Africa 1995 (12) BCLR 1561 (at [47]): It may perhaps be that a purported amendment to the Constitution, following the formal procedures prescribed by the Constitution, but radically and fundamentally restructuring and re-organizing the fundamental premises of the Constitution, might not qualify as an amendment at all.

14 [1967] 1 AC 259 at 287.

15 see S A de Smith, book review on Refl ections on the Constitution and the Constituent Assembly by L.J.M. Cooray, [1972] 35 Modern Law Review 4, 445. Th is point was also made in Kesavananda Bharati at [217].

16 [1989] 1 SLR(R) 461 at [47].

17 [1989] 1 SLR(R) 461 at [37] - [46].

18 [2010] 2 MLJ 333 at [8].

19 Bowen v Attorney-General (13 February 2009) BZ 2009 SC 2; British Caribbean Bank Ltd v Attorney-General (11 June 2012) Claim No. 597 of 2011. Discussed in

Calvin Liang Tan Kok Quan Partnership E-mail: [email protected]

Sarah Shi ^ * Attorney-Generals Chambers E-mail: [email protected]

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D. OBrien, Th e Basic Structure Doctrine and the Courts of the Commonwealth Caribbean (28 May 2013); available at: http://ukconstitutionallaw.org/tag/basic-structure-doctrine/.

20 Premier of Kwazuly Natal v President of South Africa 1995 (12) BCLR 1561 at [47]-[49].

21 R (Jackson) v Attorney-General [2006] 1 AC 262 at 302-303.

22 [1989] 1 SLR(R) 461 at [47].

23 [1990] 1 SLR(R) 347 at [26] and [41].24 [1990] 1 SLR(R) 347 at [43]-[44].

25 See Cheng Vincent v Minister for Home Aff airs [1990] 1 SLR(R) 38, a case on the same subject-matter.

26 Wong Hong Toy v Public Prosecutor [1985-1986] SLR(R) 656 at [11].

27 See Chan Sek Keong, Th e Courts and the Rule of Law in Singapore, [2012] SJLS, pp 209-231.

28 Ibid, at 223.

29 Ibid, at 223-224.

30 [2011] 2 SLR 1189 at [12].

31 [2011] 2 SLR 1189 at [31].

32 [2011] 2 SLR 1189 at [82].

33 [2011] 2 SLR 1189 at [83].

34 [2011] 2 SLR 1189 at [73].

35 [2011] 2 SLR 1189 at [75].

36 [2012] 4 SLR 476 at [60].

37 Th e Court found that the applicant had been deprived of standing by the time he had commenced the substantive stage of proceedings on 29 May 2012 since the by-election to fi ll the vacancy had already been carried out on 26 May 2012 (at [88]). Th e Court acknowledged that this would suffi ce to dispose of the appeal. However, it went on to express views on the proper construction of art 49 as the fi rst instance Judges views on the same need clarifi cation (at [45]).

38 [2012] 4 SLR 476 at [85].

39 [2013] 4 SLR 1 at [85].

40 See the respondents argument in Vellama at [63].

41 Mohammad Faizal (HC) at [11].

42 Mohammad Faizal (HC) at [11]-[12].

43 Hinds at 212.

44 Mohammad Faizal bin Sabtu and another v Public Prosecutor and another matter [2013] 2 SLR 141 (Mohammad Faizal (CA)).

45 [2013] 2 SLR 141 at [20].

46 See J. Gardner, Can Th ere Be a Written Constitution? (2011) 1 Oxford Studies in Philosophy of Law, 162.

47 Singapore Parliamentary Debates, Offi cial Report (22 December 1965) vol 24 at cols 448-449 (Lee Kuan Yew, Prime Minister).

48 Supra (note 26 above) at 222.

49 Ibid.

50 Supra (note 26 above) at 223.

51 Aharon Barak, Unconstitutional Constitutional Amendment, (2001) 44 Israel Law Review, 321.

52 Article 79(3) reads: Amendments to this Basic Law aff ecting the division of the Federation into Lnder, their participation on principle in the legislative process, or the principles laid down in arts 1 and 20 shall be inadmissible. Th e principles provided for in art 1 and 20 are the respect of the dignity of man and human rights, Federalism, the separation of powers, the rule of law and democracy.

53 Ulrich K. Preuss, Th e Implications of Eternity Clauses: Th e German Experience, (2001) 44 Israel Law Review 429.

54 Southwest State 1 BVerfGE 14 (1951).

55 1 BVerfGE 14 (1951).

56 Kesavananda Bharati at [180] and [570].

57 Compare the earlier, obverse argument that what Parliament gave, Parliament could take away. Th ese two arguments are diff erent sides of the same coin and, accordingly, the same criticisms apply equally.

58 Republic of Singapore Independence Act 1965 (1985 Rev Ed).

59 [2012] 4 SLR 476 at [63].

60 See eg the majority decision in Kasavananda Bharati; and Sivarasa Rasiah at [8].

61 Supra (note 4 above).

62 Supra (note 5 above).

63 Insofar as it may fundamentally alter the separation of powers. Th is raises the interesting question as to whether the basic structure includes the separation of powers amongst organs of the state some of whom may not have been in existence at the inception of the Constitution.

64 Upendra Baxi, Th e Constitutional Quicksands of Kesavananda Bharati and the Twenty-Fifth Amendment, (1974) 1 SCC (Journal) 45.

65 [2006] 1 AC 262 at 302-303.

66 As noted at para 49, the basic structure may well extend beyond the separation of powers and the Legality Principle. See eg Teo Soh Lung (HC) at [31]. As stated in Sivarasa Rasiah at [8], [w]hether a particular feature is part of the basic structure must be worked out on a case by case basis.

21Feature


Introduction

In the recent judgment of the High Court in PP v Lee Han Fong Lyon1 (Lee Han Fong Lyon), Choo J set out, based on a formidable judgment by the fi rst instance District Judge (DJ) in the State Courts2 (which commends careful reading), the basis on which, in an apposite3 case, rehabilitation of the offender should take precedence over the need for general deterrence in sentencing. His Honour observed, in agreement with the DJ, that less emphasis could be placed on the principle of deterrence when the offender was facing a serious mental or psychiatric disorder at the time of commission of the offence.4

Choo J concluded, on the facts of the case, that:

[t]his is a unique case of a young offender with no drug-related antecedents and a supportive background. Considering these other factors (the respondents age, his antecedents, and familial support), while seemingly detracting from the doctrinal debate as to which sentencing principle should take precedence, serves, in fact, to give meaning in its full context to the often cited labels of rehabilitation, deterrence and incapacitation (see PP v Goh Lee Yin [2008] 1 SLR(R)

824 at [57]). In his grounds of decision, the district judge noted the various sentencing principles (at [22]-[25]), subsequently addressed his mind to the unique facts of the case ([[2013] SGDC 437] at [31]-[36]), and formed the view that rehabilitation should take precedence ([[2013] SGDC 437] at [45]). I cannot fault his analysis.5

Salient Facts

The Respondent, aged 25 (hereinafter Accused) pleaded guilty to the following offences:

1. One charge, for an offence of impersonating a police offi cer, under s 170 of the Penal Code (Cap 224, 2008 Rev Ed);

2. One charge, for an offence of consuming methamphetamine, under s 8(b)(ii), punishable under s 33 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed); and

3. One charge, for an offence of driving without a valid licence, under s 35(1), punishable under s 131(2) of the Road Traffi c Act (Cap 276, 2004 Rev Ed).

When Rehabilitation Trumps Deterrence: PP v Lee Han Fong Lyon [2014] SGHC 89 - A Case Note

This case sets out the circumstances under which rehabilitation of an offender ought to take precedence over the need for deterrence in sentencing.

22Feature


Three other similar offences were taken into consideration for the purposes of sentencing.

The DJ called for a pre-sentence probation report upon learning that the Accused suffered from Attention Defi cit Hyperactivity Disorder (ADHD). Eventually, a Newton Hearing was held with regard to a psychiatric report from IMH (and the psychiatrist was examined), the probation report was considered, various other psychiatric reports were considered and the probation offi cer was examined. In the result, the DJ came to his decision of an order of probation on 24 October 2013. He ordered the Accused to undergo a total of 24 months supervised probation (subject to various conditions).

Th e Prosecutions Appeal

The basis of the Prosecutions appeal to the High Court6 was that the Accuseds ADHD did not cause him to commit these crimes and that the DJ erred in law and fact by placing excessive reliance on the respondents ADHD, even though it did not dispute that the Accused suffered from ADHD. However, there was disagreement on the extent of the involvement of the Accuseds ADHD in his criminality.

Th e DJs Position

The DJs position (with which Choo J agreed7) was that, even though the Accuseds ADHD did not single-handedly cause him to commit the offences, the ADHD played a role in the psyche of the Accused and was a factor in his criminality. The DJ observed8 that, although the Accused was aware of the wrongfulness of the various acts he had committed, the Accused could not realise the seriousness of his actions as he could not think much about the consequences of his wrongful acts.9

Th e Various Sentencing Principles

In the District Court, the DJ concluded10 that less emphasis can be placed on the principle of deterrence if the offender was labouring from a serious mental or psychiatric disorder when he commits an offence.11 He based this conclusion on the authority of the High Court judgment in Ng So Kuen Connie v PP,12 in which Yong CJ recognised that deterrence would not feature strongly, if at all, in the case of an accused whose capacity to appreciate the gravity and signifi cance of his criminal conduct is severely impaired.13

The DJ pointed out that in addition to the need for a causal link, Yong CJ also set out three other factors which a sentencing Court should consider.

These are

(i) the seriousness of the offence;

(ii) the likelihood of the offender repeating the offence; and

(iii) the severity of the crime.14

He continued by stating that:

CJ Yong also clarifi ed that the decision in Ng So Kuen Connie did not stand for the proposition that all persons with disturbed minds at the time of the commission of the offence are to be excused from a custodial sentence. He emphasised that the court had to exercise its discretion taking into account the circumstances of the case. One of the special circumstances that he had considered was the opinion of the psychiatrist that a jail sentence would be detrimental to the accused (see [64] of the judgment)

, I found that the special facts of the present case warranted a departure from the sentence meted out in PP v Lee Sai Leng Christina [MAC 3555/2000]. Here, Dr Tan, a Prosecution witness, found that the appellants condition would worsen if she were to be imprisoned. I perused the case fi le for PP v Lee Sai Leng Christina and found that the psychiatrist for the Prosecution in that case did not make a similar fi nding.

The DJ concluded thus:15

Another example where the Court had to balance the competing interests is the case of Lim Pei Ni Charissa v PP [2006] 4 SLR(R) 31 involving a youthful offender who committed credit card fraud offences. In setting aside the imprisonment sentence meted out by the District Court and substituting it with a probation order, Tay Yong Kwang J observed (at [16] of the judgment):

As in all cases (whether involving young offenders or not), there is a need to strike a balance between public interest and the interest of the offender. Therefore, probation may be inappropriate in cases where serious offences such as robbery or other violent crimes have been committed, or where the offender has antecedents, as in Siauw Yin Hee v PP [1994] 3 SLR(R) 1036. But these must not be taken as inexorable principles of law, to be mechanically applied regardless of the factual matrix of the case.

23Feature


Rehabilitation

The concept, effi cacy and notion of rehabilitation as a principle of sentencing was nowhere better stated than by V K Rajah JA in PP v Goh Lee Yin,16 where His Honour annunciated as follows:17

Thus, when it is recognised that deterrence, especially specifi c deterrence, is of limited take, is to consider which of the other principles should take precedence in trying to advance the greater public interest, to help keep the kleptomaniac from reoffending. In this regard, Bagaric in Punishment and Sentencing notes that despite rehabilitations overt concern for the welfare of the offender, this is not indicative of the underlying aim of rehabilitation: it is not so much a case of what can be done for the offender, as what can be done to him or her for the sake of the rest of us. Opponents of rehabilitative sentencing have criticised it precisely on this basis: despite the humane exterior of rehabilitative techniques, they are anything but caring, since they are concerned not with the offenders needs, but are simply a means of improving our lot by reducing recidivism

rehabilitation must necessarily assume both public and individual dimensions. While it is certainly true that the courts perform a public function of protecting the public interest, it is quite another to say that the courts do this exclusively, with any individual interest purely a matter of inadvertent incidence rather than deliberation. Such a view is diffi cult to square with the individualised nature of sentencing; surely when the courts tailor sentences for individual offenders, there comes a point where the public interest remains constant, such that the individual interest takes over predominantly, even exclusively. The present case provides an excellent example of the interplay between public and individual interests in the arena of rehabilitation. If, for instance, the public interest is in reducing recidivism vis--vis the respondent, then it is the way the court chooses to give effect to this public int

Singapore Law Gazette (August 2014)

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