- [2010] SGCA 20 (Yong).
- Cap 185 (2008 Rev Ed).
- [1981] AC 648 (Privy Council (PC)) (Ong).
- [2004] SGCA 47 (Nguyen).
- Yong (n 1) [5]. See Yong Vui Kong v Public Prosecutor [2009] SGCA 64 where the Court of Appeal held that it had jurisdiction to consider the appeal on the merits.
- Yong (n 1) [111]–119].
- Art 2(1) defines the term ‘law’ as ‘includ[ing] written law and any legislation of the United Kingdom or other enactment or instrument whatsoever which is in operation in Singapore and the common law in so far as it is in operation in Singapore and any custom or usage having the force of law in Singapore.’ The same article also defines the term ‘written law’ as ‘this Constitution and all Acts and Ordinances and subsidiary legislation for the time being in force in Singapore.’
- Yong (n 1) [33].
- ibid (n 1) [33].
- ibid (n 1) [43].
- ibid [44].
- ibid [87]–[99].
- ibid [44].
- [1939] AC 160 (PC) (Chung).
- Yong (n 1) [91].
- ibid [59].
- ibid [89].
- Chung (n 14) 167–68. Yong also cites Collco Dealings Ltd v Inland Revenue Commissioners [1962] AC 1 (House of Lords (HL)); Ian Brownlie, Principles of Public International Law (7th edn, OUP 2008) 44; Robert Jennings and Arthur Watts (eds), Oppenheim's International Law, Volume 1: Peace (9th edn, Longman 1992) 56; Peter Malanczuk, Akehurst's Modern Introduction to International Law (7th edn, Routledge 2007) 69.
- Chung (n 14) 168 (emphasis added).
- Case 148/78 Pubblico Ministero v Ratti [1979] ECR 1629 [18]–[24] (European Court of Justice (ECJ)).
- ibid [24]. See also Case 152/84 Marshall v Southampton Area Health Authority [1986] ECR 723. The applicability of the unimplemented Directive against public bodies has come to be known as ‘vertical’ direct effect.
- Duke v GEC Reliance [1987] UKHL 10. The facts of this case were substantially similar to those in Marshall, except that whereas the employer in Marshall was a public employer, the employer in Duke was a private corporation. The unimplemented Council Directive 76/207/EEC ([1976] OJ L039) on equal treatment of the sexes was held to be applicable against the employer in the former, but not in the latter.
- Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 [26].
- Case C–106/89 Marleasing SA v La Comercial Internacional de Alimentación SA [1990] ECR I–4135.
- ibid [8].
- Yong (n 1) [90].
- [2006] UKHL 16.
- ibid. The other authorities cited for the proposition were Triquet v Bath (1764) 3 Burr 1478, 1481; 96 ER 273; 4 Bl Comm 67; Duke of Brunswick v King of Hanover (1844) 6 Beav 1, 51–52; 49 ER 724; Emperor of Austria v Day (1861) 2 Giff 628, 678; 66 ER 263; Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529, 554 (Court of Appeal (CA)); J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1989] Ch 72 207 (CA).
- (1999) 96 FCR 153. The Court held that rules of customary international law prohibiting genocide could not apply in Australia unless they had been incorporated by statute. See also Jones (n 27) [23]–[29]: that whereas customary international civil law rules would be incorporated immediately into UK law, such rules setting out international crimes could not. At no point does Nulyarimma state that a judge may of his or her own volition incorporate a rule of customary international law into domestic law.
- North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) [1969] ICJ 3.
- West Rand Central Gold Mining Co v R [1905] 2 KB 391, 406–07 (Lord Alverstone CJ): It is quite true that whatever has received the common consent of civilized nations must have received the assent of our country, and that to which we have assented along with other nations in general may properly be called international law, and as such will be acknowledged and applied by our municipal tribunals when legitimate occasion arises for those tribunals to decide questions to which doctrines of international law may be relevant.
- Li-ann Thio, ‘The Death Penalty as Cruel and Unusual Punishment Before the Singapore High Court? Customary Human Rights Norms, Constitutional Formalism and the Supremacy of Domestic Law in Public Prosecutor v Nguyen Van Tuong’ (2004) 4 Oxford University Commonwealth Law Journal 1, 10–11. See also C L Lim, ‘The Constitution and the Reception of Customary International Law: Nguyen Tuong Van v Public Prosecutor' [2005] Singapore Journal of Legal Studies 218, 228 citing Thio's view as the ‘one thing’ commentators are agreed on.
- [2000] 1 AC 147 (HL).
- It must be observed that Lord Bingham in Jones (n 27) only accepted automatic domestic legal validity of customary international law because it was not necessary to dispose of the question, and actually expressed considerable reservation about the substance of the doctrine. At [11], Lord Bingham states that there ‘seems to be truth in Brierley's contention (“International Law in England” (1935) 51 LQR 24, 31)… that international law is not a part, but is one of the sources, of English Law.’
- See Nulyarimma (n 29) [26] (Wilcox J): that at a minimum, rules of international law creating international crimes could not translate directly into the domestic legal sphere because of the fundamental constitutional rule of nullum crimen sine lege; approved in Jones (n 27) [23] (Lord Bingham). See also Martin Dixon, Textbook on International Law (OUP 2007) 104–05: ‘Thus it may be more accurate to say that incorporation can occur automatically only if it is of a type that can be made justiciable in the national legal system and is of a kind where automatic implementation would not offend a basic constitutional precept of that system.’
- Yong (n 1) [72] (holding that the Court may not read a right against inhuman punishment into the right to life in art 9(1)), and [113] (holding that courts may not question Parliament's determination of 15 grams as the threshold after which the mandatory imposition of the death penalty is merited).
- ibid [61].
- ibid [62].
- [1983] 2 SCR 690 (Mithu).
- [2002] UKPC 11.
- [2004] UKPC 34.
- Nguyen (n 4) [84].
- See text accompanying nn 68–73.
- [2006] UKPC 10 [41].
- [2004] UKPC 32 (Lord Bingham, Lord Nicholls of Birkenhead, Lord Steyn and Lord Walker of Gestingthorpe dissenting).
- [2004] UKPC 33.
- Yong (n 1) [49].
- Ong (n 3) 670.
- ibid 670–71 (emphasis added).
- Adopted 10 December 1948, United Nations General Assembly Res 217 A(III). Singapore is a party to the UDHR, but not to the International Covenant on Civil and Political Rights (opened for signature 16 December 1966, entered into force 23 March 1976, 999 UNTS 171) (ICCPR), or to the International Covenant on Economic, Social and Cultural Rights (opened for signature 16 December 1966, entered into force 3 January 1976) (ICESCR), which render justiciable the rights contained in the UDHR.
- Opened for signature 4 November 1950, entered into force 3 September 1950, ETS 5. Singapore is not a party to the ECHR, but has been covered by it in the past. See text accompanying nn 56–57.
- Yong (n 1) [59].
- ibid [59].
- ibid [61].
- ibid [61]–[63].
- ibid [61] referring to Karel Vasak, ‘The European Convention of Human Rights Beyond the Frontiers of Europe' (1963) 12 International and Comparative Law Quarterly 1206, 1210. Art 63 of the ECHR has since been renumbered to art 56.
- Reyes (n 40) [28].
- Report of the Federation of Malaya Constitutional Commission (11 February 1957).
- Yong (n 1) [62].
- ibid [72].
- Matthew (n 46) [74].
- Yong (n 1) [74].
- Reliance on torture became necessary because of the Roman law's requirement of either a confession or the corroborating testimony of two witnesses in order to secure a conviction. Witnesses were difficult to find, and defendants reluctant to confess of their own accord, so torture was carried out to supply the necessary persuasion: Lord Bingham, The Rule of Law (Penguin Books 2010) 14–17. On the logic of torture in the early modern French law of proofs, see Michel Foucault, The Spectacle of the Scaffold (Penguin Books 2008) 43–54.
- 2 Bl Comm 25 citing 3 Co Inst 6 (emphasis added).
- AWB Simpson, Human Rights and the End of Empire (OUP 2001) 24.
- Yong (n 1) [21] quoting Lord Diplock in Ong (n 3) 672–73.
- Jesse Norman and Peter Oborne, The Conservative Case for the Human Rights Act (Liberty 2009) 7–8 (emphasis added).
- This position is widely, but not universally, accepted by all Commonwealth Supreme Courts. The Indian Supreme Court has famously held that a constitutional amendment made in perfect accordance with all the onerous procedural and voting requirements set down by the Constitution may nevertheless be unconstitutional as a violation of the ‘basic structure’ of the Constitution: HH Keshavananda Bharati v State of Kerala [1973] SuppSCR 1. This line of jurisprudence was rejected by the Singapore High Court in Teo Soh Lung v Minister for Home Affairs [1989] SLR 499.
- (1772) 98 ER 499 (KB).
- ibid 500.
- Jeremy Waldron, ‘Torture and Positive Law’ (2005) Columbia Law Review 1681, 1718–19.
- [2000] 2 AC 115 (HL) (Simms).
- ibid 131.
- Li-Ann Thio, ‘Protecting Rights’ in Li-Ann Thio & Kevin YL Tan (eds), Evolution: 40 Years of the Singapore Constitution (Routledge—Cavendish 2009) 211: ‘there is no practical difference between how a UK and a constitutional court applies principles of constitutionality.’
- Ronald Dworkin, Law's Empire (Belknap Press 1986) 355–69.
- Reyes (n 40) [26]. See also Minister of Home Affairs (Bermuda) v Fisher [1980] AC 319 (PC) 329 (Lord Wilberforce stating that constitutions are to be read ‘with less rigidity and more generosity than any other Acts').
- Ong (n 3) 669–70.
- HLA Hart, ‘Positivism and the Separation of Law and Morals' (1958) 71 Harvard Law Review 593, 623.
- Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate (Princeton University Press 2006) 35.
- Simpson (n 65) 6.
- K S Rajah, ‘The Unconstitutional Punishment’ (2003) 2 Law Gazette (Singapore) 6.
- Yong (n 1) [72].
- ibid [71] quoting E W Barker, Minister for Law and National Development, Singapore Parliamentary Debates Official Report, vol 25, cols 1052–53 (21 December 1966).
- I am open to the suggestion that a mere statement made in Parliament should not suffice in law: Simms (n 72) requires clear statutory language. However, Singapore has a stance perhaps unique in the common law world with respect to the use of non-statutory materials in statutory and constitutional interpretation. S 9A, Interpretation Act (Cap 1 (2002 Rev Ed)), permits the use of Parliamentary speeches and other documents even in the absence of ambiguity or inconsistency.
- It is submitted that this proposed requirement of a good faith attempt at meeting political consequences is not incompatible with the attitude of the Constitutional Tribunal in Constitutional Reference No 1 [1995] 2 SLR 201, which called for a purposive approach towards interpreting the Constitution to give effect to Parliament's intentions. This is because Parliament's intention is precisely the question raised here, and it must be strongly presumed that it does not intend to deprive or deny fundamental rights.
- Yong (n 1) [75].
- ibid.
- ibid, quoting Professor S Jayakumar, Minister for Home Affairs, Singapore Parliamentary Debates Official Report, vol 49, cols 1491–92 (29 July 1987).
- Mithu (n 39) [6].
- Yong (n 1) [80].
- Ong (n 3) 670.
- Yong (n 1) [81].
- ibid [82]
- ibid [83].
- ibid [84].
- The Penal Code (Ordinance 4 of 1871) (Singapore).
- Yong (n 1) [96]–[98].
- ibid [75]. See text accompanying nn 74–77.
- Yong (n 1) [6].
- ibid [12].
- See Pratt v A-G for Jamaica [1994] 2 AC 1 (PC) overruling Abbott v A-G of Trinidad and Tobago [1979]1 WLR 1342, 1345 (PC) where Lord Diplock had held that it was constitutionally permitted to hold prisoners on death row for years on end before they are eventually executed, because ‘while there's life, there's hope’, and that a death row appellant could not complain of delay when he himself brought the appeal proceedings. Instead, Lord Bingham held at 786 that: It is part of the human condition that a condemned man will take every opportunity to save his life through the use of the appellate procedure. If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to be attributed to the appellate system that permits such delay and not to the prisoner… The death row phenomenon must not become established as part of our jurisprudence.
- (1976) 428 US 280.
- ibid 304.
- CO 936/494 (UK Colonial Office), see Simpson (n 65) 878.
Oxford University Commonwealth Law Journal
Volume 10, 2010 - Issue 2