A reconsideration of equal protection and executive action in Singapore

ABSTRACT

In Syed Suhail bin Syed Zin v Attorney-General [2020] SGCA 122, the Singapore Court of Appeal reconsidered how Article 12(1), the Singapore Constitution's equal protection provision, should apply to executive actions. Departing from the established ‘deliberate and arbitrary’ test, the Court of Appeal proposed to first consider whether the relevant persons were ‘equally situated’ and subject to differential treatment. If so, this treatment had to be justified by legitimate reasons. This case note argues that while the rejection of the ‘deliberate and arbitrary’ test is welcomed, this approach risks returning to an emphasis on classes in equal protection analysis—an emphasis which has been criticised as tautological in the Singapore courts’ own Article 12(1) jurisprudence. A requirement to articulate the substantive requirements of equality in the specific context of the executive decision in question would offer a more principled means of analysing the constitutionality of executive actions under Article 12(1).

KEYWORDS:

• Equal protection
• equality
• administrative law
• executive act
• Singapore
• Article 12

Acknowledgments

The author is grateful to the anonymous reviewer. Any mistakes or omissions are entirely the author's own.

Notes

1 Constitution of the Republic of Singapore 1965, art 12(1) reads: ‘All persons are equal before the law and entitled to the equal protection of the law’.

2 [2015] 1 SLR 26 (Singapore Court of Appeal (SGCA)). The Singapore Court of Appeal is the final appellate court in Singapore.

3 [2012] 2 SLR 49 (SGCA).

4 [2012] 2 SLR 872 (SGCA).

5 [2009] 2 SLR(R) 542 (SGCA).

6 [2020] SGCA 122 (SGCA).

7 Constitution of the Republic of Singapore 1965, art 9(1) reads: ‘No person shall be deprived of his life or personal liberty save in accordance with law’.

8 See Muhammad Ridzuan bin Mohd Ali v Attorney-General [2015] 5 SLR 1222 (SGCA); Eng Foong Ho (n 5); Public Prosecutor v Ang Soon Huat [1990] 2 SLR(R) 246 (Singapore High Court (SGHC)).

9 [1979–1980] SLR(R) 594 (Privy Council (PC)); [1990] 1 SLR(R) 78 (PC).

10 Syed Suhail (n 6) [55].

11 ibid.

12 [1998] 1 SLR(R) 78 (SGHC).

13 Syed Suhail (n 6) [57].

14 ibid.

15 Eng Foong Ho (n 5).

16 Muhammad Ridzuan bin Mohd Ali (n 8).

17 Syed Suhail (n 6) [59]–[61].

18 ibid [62].

19 ibid.

20 ibid [61].

21 ibid.

22 ibid [63].

23 ibid [64].

24 ibid [65].

25 ibid.

26 ibid [70].

27 ibid [71].

28 ibid [72].

29 [2020] 2 SLR 883 (SGCA).

30 Syed Suhail (n 6) [76].

31 ibid [76]–[77].

32 Lim Meng Suang (n 2) [60].

33 ibid [68].

34 Ramalingam (n 3) [51].

35 Yong Vui Kong (n 4) [17].

36 Thio Li-ann, A Treatise on Singapore Constitutional Law (Academy Publishing 2012) [13–117].

37 Syed Suhail (n 6) [65].

38 Such normative judgments may indeed be inevitable in any assessment of equality. See Peter Westen, ‘The Empty Idea of Equality’ (1982) 95 Harvard Law Review 537, referenced by the Singapore Court of Appeal in Lim Meng Suang (n 2) [61].

39 [1998] 2 SLR(R) 489 (SGCA).

40 [2013] 3 SLR 118 (SGHC) [52]–[62].

41 Taw Cheng Kong (n 39).

42 Prevention of Corruption Act 1993, s 37(1) reads: ‘The provisions of this Act have effect, in relation to citizens of Singapore, outside as well as within Singapore; and where an offence under this Act is committed by a citizen of Singapore in any place outside Singapore, he may be dealt with in respect of that offence as if it had been committed within Singapore’.

43 Taw Cheng Kong (n 12) [64].

44 Taw Cheng Kong (n 39) [82].

45 Tan Yock Lin, ‘Equal Protection, Extra-Territoriality and Self-Incrimination’ (1998) 19 Singapore Law Review 10, 17–18.

46 Lim Meng Suang (n 40) [60].

47 ibid [61].

48 Syed Suhail (n 6) [61].

49 ibid [57].

50 ibid [61].

51 ibid [57].

52 ibid [63].

Additional information

Notes on contributors

Kenny Chng

Kenny Chng is an Assistant Professor of Law at the Yong Pung How School of Law, Singapore Management University.