Feature
34
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The High Court in the recent case of PP v Hue An Li held that for an offence of
negligent act causing death under section 304A(b) of the Penal Code, in a road
traffic case, the benchmark sentence will be increased from a fine, to a custodial
term of up to four weeks. This note examines the court’s reasoning in increasing the
benchmark, and briefly discusses the uncertainties in the application and scope of
the new benchmark.
Jail Term as New Benchmark Sentence for Careless
Driving Causing Death – PP v Hue An Li: A Case
Commentary
This case note assesses the Court’s reasoning in increasing
the benchmark sentence, and argues that the express
justification relied on by the Court for the increase is, with
respect, problematic in several ways. Fortunately, the
Court did allude, albeit only in quick passing, to what is a
more satisfactory justification – the need to effect general
deterrence – for the increase. This note will then more fully
explore this justification. Finally, some uncertainties in the
application and scope of the new benchmark will be briefly
discussed. To be sure, the Court in Hue also touched on
other pertinent issues such as the distinction between
rashness and negligence in the context of s 304A,5 the
aggravating factors applicable to s 304A(b) traffic death
cases (eg sleepy driving),6 and when prospective overruling
may be justified.7 The Court’s comments on these issues
certainly also make for extremely appetizing food for
thought, but remain outside the scope of this note.
Introduction
The recent Magistrate’s Appeal case of PP v Hue An Li
(“Hue”)1 is by many measures a landmark decision in
Singapore’s criminal law jurisprudence. Inter alia, the
High Court pronounced that for an offence of negligent act
causing death under s 304A(b) of the Penal Code (“PC”),2
in a road traffic case, the benchmark of a fine – a tariff that
prevailed for over twenty years in Singapore – will no longer
apply. Instead, the new starting point for such an offence
will be a brief imprisonment term of up to four weeks.3 Such
a critical change will no doubt impact a number of criminal
practitioners as the offence is not infrequently encountered
in practice, and will also be of interest to many of us who
drive in our day-to-day lives. The significance of the decision
is underscored by the fact that Hue was heard by a specially
constituted three-member High Court bench, led by the
Chief Justice,4 and an amicus curiae had to be additionally
appointed to assist the bench.
The material facts of Hue are these: the accused, while
travelling in her motorcar along the Pan-Island Expressway,
tried to overtake a lorry on her left that was transporting nine
passengers in its rear cabin. While overtaking, the accused’s
car gradually veered left before its front left collided into
the right rear of the lorry. The collision caused the lorry to
rotate, hit a barricade and flip. The nine passengers were
thrown out of the vehicle, leaving eight injured, and one
dead. The lorry driver and his front passenger were also
injured. In the accused’s mitigation, it was submitted that
the collision occurred as the accused “blanked out due to
her tired mental state”.8 The accused pleaded guilty to a
charge under s 304A(b) of the PC and consented to having
two other charges (one count of negligent act causing
grievous hurt under s 338(b) of the PC and one count of
negligent act causing hurt under s 337(b) of the PC) taken
into consideration in sentencing. At first instance, she was
sentenced to a fine of $10,000 and was disqualified from
Singapore Law Gazette December 2014
35
driving for five years. The Public Prosecutor then appealed
on the basis that a custodial term should have been
imposed. The High Court allowed the appeal and increased
the punishment to four weeks’ imprisonment (with the fine
amount refunded). The five-year disqualification period was
not disturbed.
Analysis of the Court’s Justification for Increasing
the Benchmark
At the outset, it is pertinent to point out that determining
the benchmark sentence, or indeed the sentence in any
particular case involving negligent act causing death, is
probably one of the toughest and most morally complex task
a sentencer can encounter. In my view, this is because for
this offence, the usual two main sentencing considerations,
extent of harm and culpability of the offender,9 are at
complete opposite ends of their respective spectrums.10 On
the one hand, the offence will involve (at least) a death,
indubitably the most severe form of harm anyone can inflict
to another. On the other hand, in terms of mens rea, the
offender was merely negligent, the least serious form of
culpability (relative to rashness, knowledge and intention).
Those who place more weight on an offender’s culpability
may feel that at most a high fine is justified as punishment,
as although a life was lost, it was attributable only to the
offender’s carelessness. Those, in particular the victim’s
next-of-kin, who focus more on the consequence caused will
feel that a harsher punishment should be imposed, because
regardless of the offender’s state of mind, a precious life
was lost. There is, however, no helpful guidance on whether
in such a situation, one should accord more weight to the
former or latter sentencing consideration.
Dissecting the Court’s Reasoning
How then did the High Court in Hue resolve this challenging
tension?11 It first noted that the prevailing benchmark
was set out over two decades ago in PP v Gan Lim Soon
(“Gan”).12 In that case, Yong CJ (as he then was) held that in
a case of rash driving causing death (under s 304A(a) of the
PC), an imprisonment term is generally imposed, whereas
in a case of negligent driving causing death, “it would be
sufficient in most cases to inflict a fine”.13 The Court noted
that Gan was decided prior to the 2008 amendments to the
PC, where s 304A read:14
Whoever causes the death of any person by doing
any rash or negligent act not amounting to culpable
homicide, shall be punished with imprisonment for a
term which may extend to 2 years, or with fine, or with
both.
Feature
Following the 2008 amendments, s 304A now reads:
Whoever causes the death of any person by doing
any rash or negligent act not amounting to culpable
homicide shall be punished –
a) In the case of a rash act, with imprisonment for a
term which may extend to 5 years, or with fine, or
with both; or
b) In the case of a negligent act, with imprisonment for
a term which may extend to 2 years, or with fine, or
with both,
The Court then cited PP v Kwong Kok Hing (“Kwong”),15
where the Court of Appeal held that: (i) a sentence close to
or at the statutory maximum would be imposed for conduct
that was amongst the worst conceivable for that particular
offence; and (ii) it was incumbent on a sentencing Court to
take note of the statutory maximum and determine precisely
where a particular offender’s conduct fell within the spectrum
of punishment devised by Parliament. Extrapolating from
this, the Court opined that “the default punitive position for a
particular offence must be determined with reference to the
punishment at the two ends of the spectrum”.16 Given that
the two ends for an offence under s 304A(b) of the PC are,
respectively, two years’ imprisonment and a nominal fine,
two possible approximate midpoints are: a large fine, and a
brief period of incarceration. Crucially, the Court went on to
reason that:17
It seems clear to us that following the 2008 Penal Code
amendments, the positon laid down in Gan Lim Soon is
no longer tenable, given the bifurcation of the old s 304A
into two limbs. Parliament could have chosen to retain
the language of the old s 304A and to merely increase
the statutory maximum term of imprisonment to five
years. That would have left the Gan Lim Soon position
untouched. Instead, Parliament chose to bifurcate the
old s 304A and make it clear that causing death by
negligence and causing death by rashness would each
have its own sentencing range.
In the premises, we are satisfied that the starting point
for sentencing in a s 304A(b) traffic death case is a brief
period of incarceration for up to four weeks.
The above appears to be the Court’s only explicit grounds to
justify the monumental increase18 in the benchmark from a
fine (as expounded in Gan) to a custodial term of up to four
weeks. The Court’s subsequent comments as regards “The
amount of harm caused”, “Special classes of vulnerable
victims”, “Speeding”, “Impaired judgment: drink-driving”
Singapore Law Gazette December 2014
Feature
36
and “Impaired judgment: sleepy driving”19 seek to explain
whether these qualify as aggravating factors in sentencing
a s 304A(b) offender, and do not seem to relate to justifying
the increase in the benchmark sentence.
Careful reading of the Court’s explicit grounds reveals that
there is a leap in its logic. It cannot be that simply because
Parliament decided that causing death by negligence and
causing death by rashness are now to have separate
sentencing ranges, Parliament therefore also intended that
the benchmark for the former offence be increased from a
fine to a brief custodial term. A best estimate of the Court’s
implicit reasoning must thus be something along the lines
of:
a) Prior to the 2008 amendments, the maximum penalty
for causing death by negligence was in effect less than
two years’ imprisonment, since negligence shared the
same punishment provision as its rashness counterpart
and negligence is less serious than rashness. After the
amendments, the maximum penalty for causing death
by negligence was increased to a clear two years’
imprisonment.
b) Prior to the 2008 amendments, the prevailing benchmark
for causing death by negligent act as expounded in Gan
was a mere fine.
c) Because after the 2008 amendments the maximum
penalty for causing death by negligence was increased
from less than two years to two years’ imprisonment,
Parliament therefore also intended for the previous
benchmark of a fine, to be increased to a short custodial
term.
Problems with the Court’s Reasoning
Dissecting in this manner the Court’s underlying premises
reveals the problems in the reasoning. Preliminarily, in
relation to strand (a), on a plain reading of s 304A pre-2008
amendment, the statutory maximums of both causing death
by negligence and rashness were two years’ imprisonment.
While the Courts may have thought that when two mens
rea share the same punishment provision, the less serious
mens rea is to have a lower maximum penalty than is
expressly stated, there is no evidence that in making the
amendments in 2008, Parliament adopted that same
position and proceeded on the assumption that the previous
effective maximum penalty for causing death by negligence
was less than two years’ imprisonment.20 If the previous
maximum penalty for causing death by negligence is two
years’ imprisonment and that is still the case after the 2008
amendments, strand (c) does not follow.
Even if we accept that Parliament had treated the maximum
penalty for causing death by negligence prior to the
amendments as less than two years’ imprisonment, strand
(c) itself remains problematic as it flies against the express
intention of Parliament in effecting the 2008 amendments
to the PC. In the debates, one Member of Parliament, Mr
Lim Biow Chuan, sought affirmation that by amending the
range of penalties prescribed in the PC, “the intention of
Parliament is not for the judges to automatically increase
the punishment nor should the courts interpret the setting
of a higher limit to mean that the crime has become more
serious”.21 To this, the Senior Minister of State for Home
Affairs’ (Assoc Prof Ho Peng Kee) categorical response
was:22
… we must leave it to the courts to mete out punishment
… Mr Lim Biow Chuan asks whether what we have done
will lead automatically to fines or punishments going up.
I do not think so. He has mentioned, for example, the
benchmarks, the sentencing guidelines, that the courts
have. I think the guidelines will continue. It does
not mean that automatically when the maximum
punishment is raised, the punishment will go up.
Because every punishment must depend on the facts
of the case. And I think the new Chief Justice has
mentioned that the punishment should fit the crime
as well as the offender. So, let us see what happens
(emphasis added).
In other words, Parliament patently did not have any
intention to automatically increase sentencing benchmarks
when a maximum penalty is raised.23 Its intent was in fact to
leave that decision to the Courts, after the Courts properly
consider the crime and the offender. Yet, the only apparent
justification the Court in Hue resorted to in increasing the
benchmark was to rely on Parliament’s intention. This
cannot be right.
Further, the fact that Parliament could have chosen to
retain the language of the old s 304A and merely increase
the maximum term of imprisonment to five years, but it
instead accorded negligent and rashness its own separate
sentencing range, does not provide any better indication of
its intention to increase the benchmark. It is equally, if not
more, possible that the sole reason Parliament bifurcated
the old s 304A was because it desired to only increase
the maximum penalty for causing death by rash act to five
years’ imprisonment, and to preserve that for causing death
by negligent act at two years’ imprisonment. This is entirely
consistent with some of the considerations Parliament took
into account in deciding to increase maximum sentences.
As explained by the then-Minister of Home Affairs (Mr Wong
Kan Seng), these considerations include (i) the need to
Singapore Law Gazette December 2014
37
maintain proportionality between offence and punishment;
(ii) having the type and quantum of punishment that provide
sufficient flexibility to the Courts to mete out an appropriate
sentence in a case; and (iii) the need to maintain relativity
in the punishment for related offences within the PC.24 The
lattermost consideration may have played the greatest
role; with the bifurcation, the severest punishment for the
different manners of causing death (apart from murder) are
now more neatly and relatively calibrated:
1. Negligent act causing death – maximum imprisonment
of two years (s 304A(b) of the PC);
2. Rash act causing death – maximum imprisonment of
five years (s 304A(a) of the PC);
3. Knowledge that likely to cause death – maximum
imprisonment of 10 years (s 304(b) of the PC); and
4. Intention to cause death – imprisonment for life or up to
20 years (s 304(a) of the PC).
Put simply, it is difficult to see how in bifurcating the old
s 304A, one of Parliament’s intention must have been to
at the same time increase the benchmark for negligent act
causing death as well.
Given how controversial increasing the benchmark for
a s 304A(b) offence is,25 it is arguably unsatisfactory that
the Court in Hue worked off what appears to be vague
and speculative assumptions of Parliament’s intent. Much
clearer intention of Parliament to so increase should have
been necessary. For instance, in the case of Yang Suan
Piau Steven v PP (“Steven”),26 Chan CJ (as he then was)
was not willing to accept that policy considerations call for
a custodial sentence for a first offender of Giving False
Information under s 129 of the Customs Act.27 At [51], he
noted that “Parliament has not evinced such a policy”
(emphasis added). There is no reason why more speculation
and extrapolation is permitted in the context of a negligent
act causing death offence.
Feature
Ultimately, even assuming that the Court in Hue was right
that in the 2008 amendments to the PC, Parliament had
intended that the benchmark sentence for negligent act
causing death be increased, the crucial question remains:
why must the increase be from a fine, to a custodial term?
Can it not be an increase in merely the tariff quantum
of the fine (eg from around $8,000 to around $20,000)?
Currently, the highest fine Courts impose for the offence is
$10,000.28 But that is only because the offence is commonly
classified as a Magistrate Arrest Case, where the maximum
fine a Magistrate Judge may impose is $10,000.29 Certainly,
the Criminal Procedure Code allows such an offence to be
tried in a District Court,30 where the District Judge may then
order a huge fine of up to $30,000.31
The above discussion sought to show that the Hue
Court’s reasoning (see page 36 above) for increasing the
benchmark is quite unjustifiable. A better rationale, which
will be proposed below, is therefore needed to justify the
increase. Even if we accept the Court’s reasoning as valid,
there is still an outstanding issue: the Hue Court’s reasoning
is wholly devoid of explicit consideration of established
sentencing rationales. This ignores the direction of the Court
of Appeal. In Kwong, the Court of Appeal commented that:32
... a court should always endeavour to explain its
sentencing philosophy in the interests of justice and
transparency…
As to the Court’s earlier reference to the approximate
midpoint sentence under s 304A(b), it is not clear at all what
role this played in justifying the increase in the benchmark. It
could not have been an alternative standalone justification
because all it led to was that there are two possible
approximate midpoints: a large fine, and a brief period of
imprisonment. Resort still had to be had to Parliament’s
intention to explain the Court’s decision to prefer the latter.
The other possible purpose for the reference is simply to
show that the two most viable sentencing benchmarks are a
large fine and a brief period of imprisonment. Nonetheless,
referring just to Gan would have achieved the same purpose.
Singapore Law Gazette December 2014
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38
In arriving at an appropriate sentence, a court should
almost invariably consider the relevance of the
sentencing considerations of deterrence, retribution,
prevention and rehabilitation at the outset. It should
assess which of these considerations have the greatest
cogency in any given factual matrix.
Practically speaking, the laying down of a sentencing
benchmark (as did the Court in Hue) will ipso facto likely
improve consistency in sentencing. That should be
welcomed. Nevertheless, it is submitted that when a Court
sets out a sentencing guideline but omits to articulate
which rationale has the foremost cogency for the particular
offence, the likelihood of achieving consistency may be
significantly undermined because another Court which finds
it hard to accept the guideline may readily but unjustifiably
depart from it by: (i) emphasising some other sentencing
rationale(s) to justify the departure; or (ii) according too
much weight to certain mitigating factors. In a similar vein, it
has been explained that:33
[o]ne of the aims of structuring discretion should be to
ensure that it is exercised in a principled manner, and
one essential step must be to decide upon a rationale
for sentencing. A choice should be made between
deterrence, rehabilitation, incapacitation, reparation or
desert as the leading aim … Unless decisions of principle
are taken on priorities … the resultant uncertainty would
be a recipe for disparity,
and more bluntly that “[w]ithout an explicit and wellarticulated guiding aim, consistency is a forlorn hope”.34
Re-rationalising the Increase in Benchmark
The sentencing rationale which best justifies increasing
the benchmark for and which should take centre stage
in an offence of negligent act causing death is general
deterrence.35 To be fair, the Court in Hue did hint at general
deterrence, although only obliquely, in the penultimate
paragraph of the judgment:36
We would like to take this opportunity to signal to
drivers the consequences of the tremendous risks that
they take on, not only to themselves but also to other
innocent road users, when they drive despite not being
in a fit condition to do so.
The lattermost phrase of the paragraph suggests that the
Court was alluding to general deterrence specifically vis-àvis sleepy and drink-drivers. But general deterrence can go
further to justify the benchmark sentence of a short custodial
term, as opposed to a mere fine, for s 304A(b) offenders in
general. As approved by the High Court in Tan Fook Sum:37
What will facilitate more rational and informed
sentencing is recognition that there is a dichotomy
between public interest and aggravating or mitigating
factors. Generally speaking, only the public interest
should affect the type of sentence to be imposed
while only aggravating and mitigating circumstances
affect the duration or severity of the sentence imposed.
(emphasis added).
Our Courts have held that general deterrence is warranted
in offences affecting public safety.38 Driving on the roads,
even if only negligently, seriously jeopardises the lives and
safety of a large segment of the public, that is, road users.
It has been emphasised that “the motor car is a particularly
violent and potentially dangerous instrument”.39 Following
from this, there is thus substantial public interest in the law
signalling that any negligent driving that causes death will
likely be met with a very stiff (though not disproportionate)
sentence such as a brief custodial term, since “the custodial
sentence is the most satisfactory and powerful way of
expressing public disapproval”.40
Of course, it is hard to quibble with the proposition that “the
mere fact that a human life is lost does not in itself justify
the Court in passing a deterrent sentence”.41 However, it
bears highlighting that negligent driving poses much more
tremendous risks than other kinds of negligent acts, eg
medical negligence. For negligent driving, the danger is
not just to one, but potentially to numerous other road
users. A single negligent act in driving can lead to the loss
of many innocent lives. The need to strongly signal this is
the key justification for imposing a short custodial term as
benchmark sentence for s 304A(b) traffic death cases.
The following analogy may help persuade those who remain
unconvinced: imagine a hypothetical jurisdiction where
humans are permitted to carry with them an explosive.
Once dropped, the explosive has a killing radius of a dozen
over metres. Any carelessness on the part of those who
choose to carry the explosive may cause the loss of lives
of multiple persons. In order to encourage maximum care
for those who carry the explosive, it should not be hard to
see that a stiff sentence in the form of a custodial term has
to be imposed on those who drop the explosive and cause
death(s), even if only negligently. The potential and actual
consequences of the act must outweigh the culpability
of the offender. This conclusion should apply with equal
force to negligent driving cause death given the similar
enormous risks posed.
Singapore Law Gazette December 2014
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The prevalence of fatal road accidents in Singapore may
also go some way to augment the need to effect general
deterrence,42 thereby further justifying a brief custodial
term as starting point for s 304A(b) traffic death cases.
While the number of traffic accident deaths has fallen from
168 in 2012 to 159 in 2013,43 the Courts may note that:
1. the number of such deaths is arguably still hovering at
an undesirable level.44 One life loss in a traffic accident
is one life too many;
2. the number of fatalities arising from accidents that
involve heavy vehicles increased from 32 in 2012 to 44
in 201345; and
3. there is also an increase in traffic violations since 2011.
As observed by the Singapore Police Force, “such a
trend remains a concern as every traffic violation can
potentially result in a fatal or injury accident and the loss
of lives”.46
In sum, the public interest in ensuring sufficient general
deterrence in s 304A(b) traffic death cases is a better
justification for increasing the benchmark to a brief
imprisonment term, at least compared to the Hue Court’s
arguably misplaced reliance on Parliament’s intention.
Admittedly though, even this better justification is some
way from being entirely satisfactory. First, while it has been
observed that “[p]sychologically, the higher the punishment,
the more effective it is as a deterrent to future … general
offending”,47 empirical research by criminlogists has failed
to demonstrate any significant or consistent marginal
deterrence, that is, the relationship between the severity of
a punishment and the crime rate of an offence.48 In other
words, increasing the benchmark sentence for a s 304A(b)
offence from a fine to a custodial term may in fact do little
or nothing to reduce the occurrence of such offences in
future.49 Nonetheless, despite awareness of this deficiency,
our Courts have remained willing, as a matter of judicial
policy, to advance public interest by imposing deterrent
sentences.50 Second, it may be contended that the desire to
effect increased general deterrence for such offences need
not be fulfilled by increasing the starting point sentence from
a fine to a short custodial term. The same can be achieved
by maintaining the benchmark of a fine, but increasing the
tariff disqualification period for the offender to say 10 years.
This appears to be quite an attractive option considering
the observation that disqualification is “the punishment
most feared by the motorist and therefore the most effective
deterrent”.51
Feature
Outstanding Uncertainties in Application and
Scope of New Benchmark
Having dealt with the rationalisation of the new benchmark,
it might be useful to briefly highlight two uncertainties
with its application and scope. The first is that the Courts,
prosecutors and defence counsels are likely to find
considerable difficulty in applying this new benchmark
because the Court in Hue did not provide any guidance at
all on what in its view is the archetypal road traffic negligent
act case that deserves a starting point of four weeks
imprisonment. Unhelpfully, Hue itself was not a case that
involved the usual negligent driving - it involved aggravated
or gross negligence.52 Furthermore, the Court phrased the
new starting point somewhat confusingly as a custodial term
of up to four weeks. So for instance, in a common case
where a driver was negligent for failing to keep a proper
lookout, is the starting point four weeks imprisonment, to be
adjusted for aggravating (eg more than one victim involved)
and mitigating (eg contributory negligence) factors? Or is
the starting point for such relatively low degree negligence
cases perhaps one week or even one day imprisonment,
liable to be adjusted up or down, while the starting point of
four weeks is meant for higher degree negligence cases? It
seems that the Court in Hue was content to leave it to future
Courts to develop this area on a case-by-case basis.
Singapore Law Gazette December 2014
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40
My tentative proposal is for Courts to take reference from
pre-Hue precedents (that applied the Gan benchmark) as
a rough guide, and correspondingly calibrate the sentences
to be imposed in factually similar cases in light of the new
benchmark:
1. Pre-Hue, even simple negligence cases arising from a
failure to keep a proper lookout or to exercise proper
care and caution would usually attract a heavy fine
of $7,000 to $10,000 where death is caused.53 PostHue, these should form the archetypal s 304A(b)
traffic death cases that attract a starting point of four
weeks’ imprisonment. A custodial term lower than four
weeks may be imposed where there are recognised
mitigating factors such as contributory negligence on
the part of the victim, and a high fine should now only
be imposed where there are very exceptional mitigating
circumstances.
2. Pre-Hue, short custodial terms of a week or two were
ordered for negligence cases with aggravating factors,
such as where there is simply no reason for the offender
to have failed to spot the victim.54 Post-Hue, negligence
cases with such aggravating factors (excluding those
highlighted in [67] to [92] in Hue) should generally
attract an imprisonment term slightly higher than the
starting point of four weeks, eg. five to seven weeks.
And as Hue itself clearly decided, in a negligent act causing
death case where there are aggravating factors specifically
analysed in Hue (ie speeding, drink-driving and sleepy
driving), the starting point should be between two to four
months’ imprisonment.55
The second potential uncertainty is whether the new starting
point should also apply generally to non-traffic s 304A(b)
cases, for instance, medical negligence causing death.
While the Court in Hue held that this new benchmark is to
apply to a s 304A(b) traffic death case, if we accept the
Court’s reasoning in having this new benchmark (see page
36 above), then a good argument can be made that the new
benchmark should apply generally to all s 304A(b) cases.
This is because the benchmark expounded in Gan has
previously been applied to non-traffic death by negligence
cases.56 And given that Parliament bifurcated the old s 304A
such that all causing death by negligence cases are to have
a maximum penalty of up to two years, logically, the increase
in benchmark should apply to all such cases as well.
However, it is cautioned that Courts should not unthinkingly
so extend the new benchmark. As argued above, the more
defensible justification for increasing the benchmark is the
need to signal that in traffic negligence cases, tremendous
risks to multiple road users are involved. This rationale may
not apply to non-traffic s 304A(b) cases. Courts should,
therefore, closely examine the specific context of negligent
act causing death before deciding whether to also apply the
new starting point expounded in Hue.
Conclusion
There is little doubt that the increase in benchmark for s
304A(b) traffic death cases from a fine to a brief custodial
term will be viewed as a significant, yet controversial
change. After all, the position that negligent act causing
death offenders would usually meet with a fine has been
accepted and applied for over twenty years in Singapore.57
This well-entrenched position is similar to that adopted in
England, where the Court of Appeal has held that in cases
where a fatal accident has arisen through momentary
inattention or misjudgment, a fine is usually sufficient.58
Indeed, in relation to the proposed amendment in 2008 to s
304A of the PC, the Law Society of Singapore went so far
as to submit that:59
[g]enerally, imprisonment is not a suitable punishment
for negligence and the maximum punishment of 2 years’
imprisonment under s. 304A(b) for negligent causing
of death appears excessive. We recommend that no
imprisonment be prescribed for the negligent causing
of death.
In light of this, it is unfortunate that the Hue Court’s
justification for increasing the benchmark is: (i) premised
on unjustified assumptions of and reliance on Parliament’s
intention; and (ii) lacks transparency vis-à-vis the relevant
sentencing consideration(s). Thankfully, there is a better
justification – the need to effect general deterrence in s
304A(b) traffic death cases. That said, for what it is worth,
even that justification is not fully satisfactory, and there
are uncertainties in the application and scope of the new
benchmark that criminal practitioners and the Courts will
surely have to grapple with. What is clear then, is that how
the Courts henceforth develop sentencing in s 304A(b)
cases, will be very keenly watched by many.
* I am grateful for the helpful comments provided by Jason Nim, Fong Jing Heng
and Vincent Ong on an earlier draft of this case note. All errors are solely mine.
► Benny Tan*
Tutor, Legal Skills Programme
National University of Singapore,
Faculty of Law
E-mail: lawbtzp@nus.edu.sg
Singapore Law Gazette December 2014
41
Notes
Feature
32
Kwong, supra (note 15 above) at [19] and [33].
33
Andrew von Hirsch, Andrew Ashworth and Julian Roberts (eds), Principled Sentencing:
Readings on Theory and Policy (Oxford and Portland, Oregon: Hart Publishing, 2009),
p 231.
Ibid, Andrew Ashworth, “Techniques for Reducing Sentence Disparity”, p 243 at 251.
1
[2014] SGHC 171.
2
(Cap 224, 2008 Rev Ed).
3
Hue, supra (note1 above) at [61] and [133].
34
4
The other two Judges being Chao Hick Tin JA and Tan Siong Thye JC (as he then was).
35
See also Sentencing Practice, supra (note 28 above), p 1657.
5
Hue, supra (note 1 above) at [30]-[55].
36
Hue, supra (note 1 above) at [135].
6
Ibid at [67]-[92].
37
7
Ibid at [99]-[125].
See generally Kow Keng Siong, Sentencing Principles in Singapore (Singapore: Academy
Publishing, 2009) at [25.025]ff.
8
Ibid at [5], quoting from the accused’s plea in mitigation.
38
See esp PP v Law Aik Meng [2007] 2 SLR(R) 814 at [24d] (“Law”).
9
See Tan Kay Beng v PP [2006] 4 SLR(R) 10 at [39], citing R v Howells [1999] 1 WLR
307, an English Court of Appeal decision that considered the relevant factors to be
taken into account in deciding when to mete out custodial sentences.
39
Douglas Acres, “Consistently achieving our sentencing aims” in Donald C. Pennington
and Sally Lloyd-Bostock (eds), The Psychology of Sentencing (Oxford: Centre For SocioLegal Studies, 1987), p 61 at 63. See also Jali bin Mohd Yunos v PP [2014] SGCA 50
at [24] and [36].
10
For a similar view, see PP v Abdul Latiff Bin Maideen Pillay [2006] SGDC 245 at [10]
(“Abdul Latiff”).
40
Ibid, p 61 at 64.
11
See generally Hue, supra (note 1 above) at [56]-[61].
41
See PP v Tiyatun & Anor [2002] 1 SLR(R) 746 at [9].
12
[1993] 2 SLR(R) 67.
42
Law, supra (note 38) at [25a].
13
Ibid at [10].
43
14
(Cap 224, 1985 Rev Ed).
Singapore Police Force, “Annual Road Traffic Situation 2013” (10 Feb 2014), online:
Singapore Police Force; available at: <www.police.gov.sg/mic/2014/02/20140210_
others_TP_stats.html>.
15
[2008] 2 SLR(R) 684.
44
C.f Lim Kay Han Irene v PP [2010] 3 SLR 240 at [42].
16
Hue, supra (note 1 above) at [59].
45
Supra (note 43 above).
17
Ibid at [60]-[61].
46
Ibid.
18
That the increase was significant was certainly the view of the Court in Hue as well. See
Hue, supra (note 1 above) at [127].
47
Steven, supra (note 26 above) at [51].
48
19
Ibid at [67]-[92], [134].
20
All we know for certain is that in amending some provisions, Parliament had taken
into account comments made by the Judges in their judgments (Parliamentary Debates
Singapore: Official Report, vol 83 at col 2175 (22 Oct 2007)).
See for eg Andrew von Hirsch et al, Criminal Deterrence and Sentence Severity – An
Analysis of Recent Research (Oxford – Portland Oregon: Hart Publishing, 1999), ch
10.1-10.2.
49
There is also controversy as to whether it is even possible to deter negligent-type
offences (see for eg Leslie Y Garfield, “A More Principled Approach to Criminalising
Negligence: A Prescription for the Legislature” (1997-98) 65 Tennessee Law Rev 875
at 883ff). My view is that it is possible.
21
Parliamentary Debates Singapore: Official Report, vol 83 at col 2418 (23 Oct 2007).
22
Ibid at col 2439.
23
See for eg Lim Ghim Peow v PP [2014] SGCA 52 at [56].
24
See Parliamentary Debates Singapore: Official Report, vol 83 at col 971 (22 May 2007).
See also Ministry of Home Affairs (Singapore), “Consultation Paper On The Proposed
Penal Code Amendments” (8 Nov 2006), online: Ministry of Home Affairs; available
at: <www4.mha.gov.sg/data/NewsFiles/d84_2126_312_Public Consultation Paper on
the proposed penal code amendments in PDF format.pdf> at [21].
50
Law, supra (note 38 above) at [19]. See also Abdul Latiff, supra (note 10 above) at [13].
51
Sentencing Practice, supra (note 28 above) at 71, citing PP v Chiam Liang Kee [1960]
MLJ 163. See also Edwin s/o Suse Nathen v PP [2013] 4 SLR 1139 at [13].
52
Hue, supra (note 1 above) at [98].
53
See Sentencing Practice, supra (note 28 above) at 1659-1665.
54
See for eg Abdul Latiff, supra (note 10 above).
Hue, supra (note 1 above) at [134].
25
See para under the heading “Analysis of the Court’s Justification for increasing the
Benchmark”.
55
26
[2013] 1 SLR 809.
56
Sentencing Practice, supra (note 28 above) at 354.
27
(Cap 70, 2004 Rev Ed).
57
Hue, supra (note 1 above) at [126].
28
See the cases cited in Sentencing Practice in the Subordinate Courts, (3rd edition,
Singpore: LexisNexis, 2013), pp 1659-1665 (“Sentencing Practice”).
58
Sentencing Practice, supra (note 28 above) at 1657, citing the English case of R v
Guilford [1973] RTR 272.
29
Criminal Procedure Code (Cap 68, 2012 Rev Ed), s 303(3)(b).
59
30
Ibid at First Schedule (Tabular Statement of Offences under the Penal Code).
31
Ibid at s 303(2)(b).
The Law Society of Singapore, “Executive Summary of Council’s Report on the Proposed
Amendments to the Penal Code”, online: The Law Society of Singapore; available at: <www.
lawsociety.org.sg/forMembers/ResourceCentre/FeedbackinPublicConsultation/2007/
ExecutiveSummaryProposedAmendmentstothePenal.aspx> at [5.2].
Singapore Law Gazette December 2014
Feature
34
Singapore Law Gazette Awards 2015 – Best Feature Article by a Young Lawyer
While there are important principles fundamental to the Singapore Constitution,
they do not form a legally unchangeable “basic structure”. Even if it were possible
to identify a substantive “basic structure”, its exact content would be indeterminate
and we would be left with only broad, unhelpful truisms. Instead, the true safeguards
against potential undesirable constitutional amendments lie in democratic political
processes.
The Basic Structure Doctrine in Singapore: A Reply
Introduction
In The Constitution of Our Constitution: A Vindication of
the Basic Structure Doctrine,1 Mr Calvin Liang and Ms
Sarah Shi (“the authors”) explore the “‘basic structure
doctrine”, which “posits that a constitution has certain
written or unwritten features so fundamental that they
cannot be abrogated through constitutional amendments”,
in the context of Singapore. They argue that “the Legality
Principle against the separation of powers form the basic
structure of the Constitution of the Republic of Singapore”,
and that Singapore’s constitutional actors have openly
acknowledged this. Moreover, they argue that the “basic
structure” must exist by virtue of the very nature of a
constitution, or at least of Singapore’s Constitution.2
To the contrary, it is argued in this article that the local
case law does not support the “basic structure” doctrine. At
most, it supports the truism that the Constitution features
several fundamental principles, but these principles are
either not necessarily “basic” in the strict sense of being
unchangeable or are too general to be of use as a “basic
structure”. Moreover, the reasons for the doctrine of a
“basic structure” do not necessitate the particular basic
structure advocated by the authors or the level of generality
at which it has been pitched. Instead, the true safeguards
against constitutional change that severely curtails subjects’
rights are political in nature.
The Meaning of the Basic Structure Doctrine
The “basic structure doctrine” comes from the Indian case of
Kesavananda Bharati v State of Kerela3 (“Kesavananda”).
Interestingly, Kesavananda represented an increase,
not a decrease, in Parliament’s powers of constitutional
amendment: the majority (of seven against six) overruled
an earlier case4 which held that no amendments to the
fundamental rights provisions in the Constitution were
allowed, favouring instead the idea that only the basic
structure cannot be amended.
Some of the Judges in Kesavananda saw the issue as one
of imposing legal limits on constitutional amendment;5
others saw it as one of pointing out logical limits on
Singapore Law Gazette November 2014
35
constitutional amendment (viz that the Constitution cannot
be changed so drastically that it ceases to be the same
Constitution);6 and yet others merely pointed to non-legal
political duties not to make certain types of amendment.7
In other words, the “basic structure” refers to something
more than a set of important features of the Constitution:
it refers to: (i) features that legally or logically cannot be
abrogated; or, perhaps, (ii) features that politically should
not be abrogated. Let us focus on: (i), since (ii) is not the
business of the Courts.
In the constitutional law context, it is, therefore, necessary
to distinguish between two meanings of the word “basic”:
concepts which are very important and concepts which are
unchangeable. The two may overlap, but are not the same.
Let us focus primarily on the second meaning (which is the
meaning in Kesavananda), for discussing the first meaning
runs the risk of stating the obvious: since all constitutions, by
their “very nature”, play the basic roles of “power-defining”
and “power-limiting”,8 the debate would then become merely
a political one about the merits of schemes of division of
power, and would only become a legal debate if there are
schemes which are either fundamentally necessary or
repugnant to the core of the Constitution.
There are, therefore, two questions to consider:
1. Whether there are features of the Singapore Constitution
which it is not legally possible to change; and
2. If not, then whether there are features of the Singapore
Constitution which, if removed, would lead to a product
that is something other than the Singapore Constitution.
Let us refer to these as “question (1)” and “question (2)”.
A study of the cases reveals that the answer to both is no.
Does Singapore’s
Structure”?
Constitution
Have
a
“Basic
Let us examine the different contenders for the basic
structure of Singapore’s Constitution.
The “Legality Principle” and the Availability of
Judicial Review: Teo Soh Lung v Minister for Home
Affairs (“Teo Soh Lung (HC)”)9 and Chng Suan Tze
v Minister for Home Affairs (“Chng Suan Tze”)10
In Teo Soh Lung (HC), Chua J rejected the submission that
there are constitutional amendments which Parliament has
no legal power to make; to hold otherwise, he said, would
be “usurping Parliament’s legislative function contrary to art
58 of the Constitution”.11 He distinguished Kesavananda on
Feature
the grounds of differences between Indian and Singaporean
constitutional history.12
The authors reply that Chua J erred in neglecting the
“Legality Principle”13 and in focusing on the text of art 58 to the
exclusion of the possibility of implied limits to amendment
which should be, as the Privy Council appeared to suggest
in Hinds v R14 (“Hinds”), “taken for granted”.15 However,
these arguments do not establish that there are legally
unchangeable features of the Singapore Constitution.
The authors begin by asserting the importance of the “Legality
Principle” from Chng Suan Tze that “All power has legal
limits and the rule of law demands that the courts should be
able to examine the exercise of discretionary power”, which
they say flows from “the separation of powers and the need
for a system of checks and balances on powers”.16 But even
if this is true, accepting it merely postpones the question:
why is it legally impossible for Parliament to abrogate the
rule of law? Three problems emerge.
The first issue has to do with question (1) as defined above.
In India, an answer to the question in the previous paragraph
is based on popular sovereignty: Sikri CJ in Kesavananda
said that constitutional amendments which go against the
popular “common understanding” or ignore it by causing
“the very democratic principles which [Parliament] appeal[s]
to” in invoking the process of constitutional amendment to
“disappear”17 are forbidden. This is because, as Shelat J put
it, the invocation of popular sovereignty in the Preamble to
the Indian Constitution is the “key to the understanding of the
Constitution”.18 It is also the key to the distinction between
the constitutional histories of India and of Singapore to
which Chua J alluded.
To be fair, it is unclear whether this means that it is legally
impossible for Parliament to make such constitutional
amendments in India, or merely that the people reserve the
political power to resist such an amendment even if it is
legally valid. Nonetheless, it does not matter to Singapore,
where, by contrast, the power of constitutional amendment
is not explicitly made ultimately contingent on the approval
of some other body such as “the people”, nor is the power
said to have been delegated by “the people”.
Second, what, in the context of constitutional amendment,
are the “limits” to which the “Legality Principle” as it is
formulated refers? All that the dictum from Chng Suan Tze
says is that judicial review is possible; it says nothing about
the grounds or standards of review. The “Legality Principle”
therefore cannot be used, as the authors do, to answer the
question of what the content of the “basic structure” is.
Moreover, a claim that the “basic structure” is simply that
Singapore Law Gazette November 2014
Feature
36
there are limits to executive power would answer question
(2) affirmatively but be an empty, and thus unhelpful, claim:
the mere existence of limits to power is a feature inherent
in the act of delegation of power; since it is by definition
impossible for delegated power not to have limits (for,
otherwise, it would be transferred power), it would not add
anything to say that it is also unlawful.
Third, similarly, it does not follow from the idea that “all power
has legal limits” that “the courts must be able to examine the
exercise of discretionary power”19 (emphasis added). While
it may be that “[i]t is emphatically the province and duty of
the [body with judicial power] to say what the law is”,20 this
does not aid our enquiry as it tells us nothing about exactly
how “the law” in Singapore affects validity or how exactly
“the law” says judicial review is to be performed. It may be
that the basic structure is simply that there must be judicial
power, but this does not address the question of whether
the basic structure renders unlawful certain constitutional
amendments which define the scope of judicial power.
In short, besides the circularity in the authors’ asserting the
importance of the “Legality Principle” and then criticising
Chua J’s rejection of the basic structure doctrine because
it conflicts with it,21 which assumes the very thing which
the authors aim to prove, the “Legality Principle” does not
contain enough content to form a basic structure which is
fit for purpose. Let us now examine the recent cases cited
by the authors to see whether this problem may be solved
through other principles.
be non-justiciable”.27 However, the hypothetical situations
in which review would be available – if the Cabinet were
biased, acting in bad faith, or in breach of the procedural
requirements in art 22P of the Constitution, eg if it did not
meet to discuss a clemency petition or made its decision
based on a coin toss28 – are not about the separation of
powers per se; they concern only the manner in which one
of the powers is to be exercised. Neither do they concern the
Courts’ policing the limits to powers: the Legality Principle is
concerned with the extent of vires,29 not the ways in which
discretion is exercised or whether or not it is exercised.
It may now be argued that it is these grounds of review that
form the “basic structure”. But the grounds are contingent
on legislative approval: the judicial review jurisdiction was
said to cover “every legal dispute on a subject matter in
respect of which Parliament has conferred jurisdiction
on”30 (emphasis added). The ratio of Yong Vui Kong – the
real reason why the “Legality Principle” can be said to have
“trump[ed] the argument that constitutional powers may
be non-justiciable”31 – is that the power in question was
said to be a legal power, as opposed to a “purely personal
discretion”, for the Court stressed for the first time that only
“legal powers … have legal limits”32 (emphasis in original).
The matter cannot be said to be based on an unabrogable
basic feature that demands that judicial review be possible,
for if, hypothetically, art 22P did not exist, then there would
be no power of clemency at all and thus no right of judicial
review to abrogate.
It is not necessarily true that that the Legality Principle applied
in Yong Vui Kong cannot be changed by Parliament. On
the contrary, the Court accepted that it can: in holding that
there “will (or should) be few, if any, legal disputes between
the State and the people from which the judicial power is
excluded”24 (emphasis added), the Court acknowledged
that there may be some matters which are not susceptible
to judicial review. There is no conflict between this and the
“doctrine of separation of powers” which the Court held to
be the basis of the “fundamental law” of Singapore25 and
the authors concluded to be part of the basic structure26:
the doctrine is capable of encompassing partial separation
of powers, and, more fundamentally, says nothing about the
content or scope of those powers.
These points may be further illustrated by turning briefly
to Mohammad Faizal (HC), which the authors cite as the
“clearest recognition of the basic structure doctrine”.33 In
fact, the words “basic structure”34 in that case referred to the
idea in Hinds that it is, in a Westminster-style constitution,
“taken for granted that the basic principle of separation
of powers will apply”.35. With respect, however, this is not
strictly relevant in Singapore, where, to use the words of
the minority in Hinds, “[t]he principle that there should
be a separation of powers between the three organs of
government is not just taken for granted. Effect is given
to that principle by the written terms of the Constitution”36
through arts 38, 23(1), and 93 of the Singapore Constitution
which explicitly vest legislative, executive, and judicial
powers in the Legislature, the Executive, and the Judiciary,
respectively. The crux of Mohammad Faizal was thus
not about the separation of powers as a basic structure,
but rather about the content of the powers, viz whether
sentencing an individual is an exercise of legislative or
judicial power.
The authors characterise Yong Vui Kong as having
“trump[ed] the argument that constitutional powers may
Therefore, all that the basic structure doctrine allegedly
adds to the law on executive clemency is that the Courts
The Separation of Powers: Yong Vui Kong v Public
Prosecutor22 (“Yong Vui Kong”) and Mohammad
Faizal bin Sabtu v Public Prosecutor23 (“Mohammad
Faizal (HC)”)
Singapore Law Gazette November 2014
37
have, on occasion, some role to play in reviewing executive
actions. This point has already been dealt with above.
The authors also argue that, in Yong Vui Kong, the basic
structure doctrine was further used as an “interpretive
tool”.37 However, the fact that a constitutional principle is
so significant that it leads to an interpretive norm does not
mean that it therefore cannot lawfully be abrogated. On
the contrary, if all that the principle does is to give rise to
implication or interpretation, then surely the latter can be
trumped by an express provision to the contrary;38 this
would not count as an abrogation of the principle, but
merely a statement of its scope, ie that it simply does not
apply in such a manner as to give rise to that implication or
interpretation.
Constitutional Supremacy: Tan Eng Hong v
Attorney-General39 (“Tan Eng Hong”)
The authors also seek to link the separation of powers with
constitutional supremacy. Thus, they say that the Court in
Tan Eng Hong “adopted a functional analysis; reasoning
from the function of the Constitution to its necessary
components”, ie from the Constitution’s role in maintaining
the rule of law and protecting fundamental liberties to the
necessary feature of constitutional supremacy.40 With
respect, this begs the question: constitutional supremacy
can only be said to be necessary if we presuppose that
the functions of the Constitution are necessary, but those
functions are themselves defined by the Constitution which
claims supremacy.
Feature
only basic structure we are left with is that there should
exist a document titled Constitution of the Republic of
Singapore. Again, the answer to question (2) is yes, but
only vacuously so.
The Content of the Basic Structure
Lessons from Foreign Jurisdictions
We have seen that many important constitutional principles
are not part of the basic structure in the Kesavananda
sense; the authors’ argument that it follows from the fact
that judicial review has been performed without legislative
interference that judicial review must be part of the basic
structure41 is neither here nor there, for it confuses practice
and legality.42 But even if they were, another problem
arises: exactly how is the basic structure to be defined and
framed? There are at least several possibilities.
The Authors’ Proposal
One possibility is, as the authors have suggested, that the
basic structure is a combination of the Legality Principle
Moreover, although it cannot be denied that constitutional
supremacy is a vital feature of the Constitution, it does not
follow that it cannot be abrogated by an Act of Parliament,
either because such an amending Act would be unlawful
or because it would make the Constitution lose its identity.
There are at least two ways to look at the matter:
1. First, an Act incompatible with the Constitution is
void simply because art 4 says so. Consequently, to
attempt to repeal art 4 by legislation is not unlawful; it
is simply an impossible contradiction in terms. Again,
for the proposition that the basic structure consists of
unabrogable constitutional principles to mean anything,
it would have to be the case that, if those principles
were not part of the basic structure, then it would be
possible (to put it loosely, “physically possible”) to
abrogate them; this is simply not true in the case of art
4. The answer to question (1) is, therefore, no.
2. Second, if it is lawful by virtue of art 5 for the Legislature
to repeal every other provision of the Constitution, the
Singapore Law Gazette November 2014
Feature
38
and the separation of powers.43 But these are, at most,
a structure. If there were some basic provisions, then
answering the question of lawfulness would be as simple as
checking whether the provision purportedly amended was
one of the “basic” ones. By contrast, the Legality Principle
and the separation of powers are principles which cannot
be said either to apply or not, but rather only to apply in
different ways or to different degrees. For this reason, in
Australian Capital Television Pty Ltd v Commonwealth of
Australia (“Australian Capital Television”), it was held that a
provision may only be implied on a “structural” (as opposed
to “textual”) basis if it is “logically or practically necessary for
the preservation of the integrity of that structure”. 44
Democracy and Responsible Government
In Australian Capital Television, an implied constitutional
right of “political communication”45 was said to be required
by the “concept of representative government and
representative democracy”, as evidenced by the fact that
Members of Parliament and Ministers in Australia were “not
only chosen by the people but exercise their legislative and
executive powers as representatives of the people”.46
The Court did not have to consider whether these implied
principles were expressly abrogable. But if we imagine
arguendo that they could not be, this case would illustrate
the difficulty of defining the basic structure. Which would
be a better candidate for the basic structure of Singapore’s
Constitution: the Legality Principle, or representative
democracy? Neither is necessarily more correct. If it is
the latter, given the reasoning from the provisions in the
Australian Constitution about the election of democratic
representatives, it may well be that the “basic structure”
leads to the political remedy of removing the unsatisfactory
members of legislature or the executive through democratic
processes47 rather than the legal remedy of judicial review.
Similarly, in Federal Commissioner of Taxation v Munro,
it was held that “the Constitution is for the advancement
of representative government”, and that different types of
powers are “capable of assignment … to more than one
branch [legislative, executive, or judicial] of government
… [d]eny that proposition, and you seriously affect the
recognised working of representative government”.48 This
is significant because it puts paid to the idea that question
(2) may be answered by pointing to a particular specific
definition of some or all of the three powers.
Fundamental Rights and the Principal Aim of the
State
In Kesavananda too, judicial views differed as to the content
of the basic structure. While Sikri CJ listed constitutional
supremacy; republicanism and democracy; secularism;
separation of powers; and federalism,49 which are features
of the framework of the State, Shelat and Grover JJ added
such substantive values as human dignity, fundamental
freedoms, and welfarism.50 Ray J, by contrast, in rejecting the
basic structure doctrine, said that the crux of a constitution
was the “great ends” of “the safety, the greatness and the
well-being of a people”.51 This demonstrates the difficulty
in determining not only the specific content of the basic
structure, but also the level of generality at which it should
be described.
The Particular Role of Judicial Review
Kesavananda also displays diversity of judicial opinion
about the role of judicial review, which was the issue in Teo
Soh Lung. Shelat and Grover JJ described it as being of
“paramount importance” and part of the “heart and core of
a democracy”;52 Khanna J explicitly said that abrogating
it “strikes at the basic structure of the Constitution”.53 But
Khanna J also warned that, as for the manner in which
judicial review is conducted, “Judicial Oligarchy” must be
avoided as “[t]he proper forum to fight for the wise use of the
legislative authority is that of public opinion and legislative
assemblies”, otherwise “people of fundamentally differing
views” may be neglected.54 Similarly, Hegde and Mukherjea
JJ acknowledged the usefulness of judicial review but
suggested that legislative checks and balances might
sometimes suffice:
If [a] question … is considered as the exclusive function
of the executive, then, not only the judicial review
will be taken away, even the legislature will not
have the opportunity of examining the correctness or
appropriateness …” (emphasis added).55
The Case of Singapore
In Singapore, by contrast, it is difficult to identify a defining
overarching principle which, if abrogated, would make the
Constitution into something other than the Constitution of
the Republic of Singapore. As we have seen, there are
various possible candidates for an implied overarching
principle.
As for an express one (as is present in the Constitutions
of Mauritius,56 India,57 Germany,58 and Belize,59 to which
the authors have alluded), the Proclamation of Singapore
declares Singapore to be “forever a sovereign democratic
and independent nation, founded upon the principles
of liberty and justice and ever seeking the welfare and
happiness of her people in a more just and equal society”,60
Singapore Law Gazette November 2014
39
but it is doubtful whether this should be taken to be more
than political rhetoric. The Constitution explicitly mentions
sovereignty, independence, and liberty;61 the drafters could
easily have mentioned explicitly the other values in the
Proclamation such as “democra[cy]” and “justice” if they
wished to make these true constitutional principles.
Of course, this does not mean that Singapore is not
democratic – it patently is in at least one sense, for the
Constitution specifically provides for elected representatives.
Rather, it may be taken to exclude a particular conception
of democracy, eg “[not only] that the people must decide
who should govern them, [but also] the principle that
fundamental rights should be protected by an impartial and
independent judiciary”.62 On the other hand, it is equally
plausible that the drafters of the Constitution did intend to
enshrine such a view: such rights would complement the
Legality Principle by describing the “legal limits” to executive
and legislative power.63 Yet another possible view is that
the primary purpose of the “freedoms of the people” is to
facilitate “free elections” and prevent the “Government so
elected … perpetuat[ing] itself”.64
All these equally plausible possibilities illustrate the
difficulty in searching for a “basic structure” or saying that
“democracy” is the basic structure: such moves either shore
up ambiguities that add little to existing difficulties such
as determining the appropriate level of “judicial restraint”
(it is unclear how the authors’ observation that “the basic
structure doctrine may not necessarily expand the scope
of judicial review”65 (emphasis added) helps to address the
established common-law problem of determining exactly
which the “appropriate cases” in which to exercise restraint
are), or risk crossing the boundary from constitutional
interpretation into imputing to the Constitution ideas which
are in reality the creation of the common law.
Feature
Analogies with Foreign Constitutions
The authors argue that it “seems absurd” to suggest that
the basic structure doctrine cannot be said to apply in
Singapore by analogy with Germany and India because
Singapore’s Constitution has no eternity clause (unlike art
20 of Germany’s Basic Law) and no popular supremacy
clause (unlike the Preamble of India’s Constitution).68
However, these differences are highly significant.
As for Germany, the authors cite a dictum quoted by the
Federal Constitutional Court that “[t]here are constitutional
principles that are so fundamental and so much an expression
of a law that has precedence even over the constitution that
they also bind the framers of the constitution”. However, in
context, the content of these “fundamental” “constitutional
principles” was the explicit statement in art 20(1) of
the Basic Law: “The Federal Republic of Germany is a
democratic and social federal state”. Hence, the basic
structure doctrine applies in Germany only as a matter of
the “inner unity” of the text of the Basic Law.69 (Interestingly,
even this doctrine is qualified by art 146 of the Basic Law:
“This Basic Law … shall cease to apply on the day on which
a constitution freely adopted by the German people takes
effect".)
The authors cite an article which argues that the idea of an
“implied eternity clause” may help distinguish between “the
In short, therefore, we cannot give a definite answer to
question (2); even if we could, it is likely that our answer
would consist “not [of] concrete provisions of the Constitution,
but … instead … statements of general principles … There
can be wide differences of opinion about the scope and
application of each of these principles… these principles
are too general to provide either guidance or any real basis
of agreement”.66
For this reason, the authors’ claim that “it may even be the
case that a constitutional amendment to abolish the elected
presidency may run into basic structure objections even
though it is supported by referendum”67 is misconceived.
Even if a basic structure doctrine did apply in Singapore,
the Presidency, being part of the Executive, cannot be said
to be more “basic” than the existence of the Executive itself.
Singapore Law Gazette November 2014
Feature
40
amendment of an existing constitution and the establishment
of a new constitution”.70 However, it is doubtful whether
such an “implied” clause can trump express wording to the
contrary. Moreover, the difficulty of determining exactly what
the implied eternity clause covers would remain.
As for India, Kesavananda suggests that, notwithstanding the
majority’s judgments, the basic structure can be changed. It
may be true that “what Parliament had not given, it could not
take away”.71 But as Khanna J pointed out, “the people in the
final analysis are the ultimate sovereign and if they decide
to have an entirely new constitution, they would not need
the authority of the existing constitution for this purpose”,
even in the absence of an explicit comprehensive scheme
for constitutional amendment.72 Indeed, sovereignty is
vested in “the people of India” as noted in the Preamble of
the Constitution of India.
But the same Preamble recites that “the people” had
acted through not just “constituent power” (as the German
Basic Law states73), but the institution of “our constituent
assembly”. It may, therefore, be possible for “extraconstitutional methods like revolution”74 (not in the sense
of violent uprising, but simply in the sense of fundamental
change) to be led by a democratically representative body
– such as the Indian Parliament. The debate thus becomes
merely one of whether the body is truly democratically
representative75 – an important debate, but hardly one that
is specific to the particular context of constitutional reform.
Conclusion: A Political Constitution
Constitutional theory is all about the balance of power, but
this balance need not be struck by purely legal means. For
example, Dicey posited two political limits to legislative
power: the “external limit” (which is that the sovereign cannot,
in practice, make legislation that subjects will disobey) and
“internal limit” (the sovereign will not, in practice, make such
legislation that it is “hardly conceivable” that it will as it will
go against its interest to do so).76
The authors state that a basic structure is necessary for the
Constitution to achieve its basic purpose. But it is equally
arguable, as the minority said in Hinds that if a “great
deal [were] left to necessary implication, [then] a written
constitution would largely fail to achieve its object. If it does
not define clearly what Parliament can do and cannot do by
ordinary enactment, then the Government and Parliament
of a territory may find that as a result of judicial decision after
a considerable lapse of time all the time spent in legislating
has been wasted and that laws urgently required have not
been validly enacted”.77 The Courts must have some theory
behind how they go about constitutional interpretation;
this theory may well be that “public administration is not
principally about stopping bad administrative practices but
encouraging good ones”.78
It might seem unthinkable for the Courts to stand idly
by in the face of “oppressive and wholly undemocratic
legislation”.79 But such legislation would be exactly that –
validly made legislation, which has the force of law. Unless
the Courts are willing to abandon the notion that express
words, however unsavoury one may think them to be, trump
implied concepts,80 the Courts will, in such a case, be doing
something other than giving effect to the law. If, instead, we
posit that the limits postulated by Dicey are the true limits to
the power of constitutional amendment in Singapore, then,
while there is a meaningful distinction between amending
the Constitution and replacing it with a new Constitution,81
in the case of the latter, it should not be assumed that the
Courts ought to play a leading role in reform.
Implicit support for this view may be inferred from dicta from
Jeyaretnam Kenneth Andrew v Attorney-General, where the
“green-light” model of the State, which focuses on “seek[ing]
good government through the political process and public
avenues rather than redress[ing] bad government through
the courts”,82 was explicitly endorsed.83 While the Courts
may, in time, see the need to examine more closely the
content of legislative debates rather than simply assuming
that the Legislature has carefully considered all relevant
matters,84 they can do so at most as part of the process of
interpretation;85 they cannot override the express words of
legislation.86
It is, therefore, submitted that the true position in Singapore
is that espoused by Kirby P in Building Construction
Employees and Builders’ Labourers Federation of New
South Wales v Minister for Industrial Relations87:
In the end, it is respect for long standing political realities
and loyalty to the desirable notion of elected democracy
that inhibits any lingering judicial temptation, even in
a hard case, to deny loyal respect to the commands
of Parliament by reference to suggested fundamental
rights that run ‘so deep’ that Parliament cannot disturb
them.
This conclusion does not leave our citizens unprotected
from an oppressive majority in Parliament. The
chief protection lies in the democratic nature of our
Parliamentary institutions.
To apply a “basic structure doctrine” to the extent of holding
that amendments to the contrary are void is essentially to
denounce a piece of legislation as “not law”. But, as Hart
Singapore Law Gazette November 2014
41
argued, this would neglect the more important questions:
If it is not truly law, how did it ever come to be considered
valid law, not least of all by the Legislature itself? Perhaps
it, though not truly law, is better than the law?88 While the
question of validity is a legal question, these questions are
arguably political questions for the people to answer. It is,
therefore, best that they be answered through democratic
fora.
6
Ray, Mathew, and Beg JJ, cited ibid, J-18.
7
Mathew J, [1714], cited ibid, J-15.
8
Supra (note 1 above)at [38].
9
[1989] 1 SLR(R) 461.
Courts performing judicial review are, to be sure, democratic
institutions as they seek to give effect to democratic
will89, but, even if their role is cut down, Parliament itself
can also be equipped to answer these questions, albeit
acting qua elected representative body rather than qua
legislative authority90 (and perhaps taking a more directly
representative approach than usual). In fact, notwithstanding
the absence of a preamble like that in India’s Constitution,
it may even be argued that the true Grundnorm is the social
fact of popular sovereignty,91 such that even sweeping
constitutional change following popular unhappiness with a
legislative amendment cannot wholly be characterised as
being extra-legal.
In short, the authors have rightly identified the Legality
Principle and the separation of powers as key constitutional
principles, but these principles may well play out in such a
way as to suggest that the Singapore Constitution is not only
a legal document, but also a political one. The Constitution
seeks to protect individual rights and uphold the rule of law,
and it does so by separating each branch of the State and
by establishing mutual checks and balances, but it is not at
all clear that it does so via an immutable “basic structure”.
This is, furthermore, not a bad thing: while enduringness is
a strength of a constitution, inflexibility can be just as much
a weakness.92
► Benjamin Joshua Ong*
10
[1988] 2 SLR(R) 525.
11
Supra (note 9 above)at [35].
12
Ibid, [37]-[47]; supra (note 1 above)at [16].
13
Supra (note 1 above) at [8].
14
[1977] AC 195.
15
Supra (note 1 above)at [9].
16
Supra (note 10 above)at [86], cited supra (note 1 above) at [2]-[3].
17
Supra (note 3 above), p 1534 at [291]-[295].
18
Supra (note 3 above), p 1577 at [523].
19
Supra (note 16 above).
20
Marbury v Madison 5 US (1 Cranch) 137 (1803), 177.
21
Supra (note 1 above) at [8].
22
[2011] 2 SLR 1189.
23
[2012] 4 SLR 947.
24
Supra (note 22 above) at [31].
25
Ibid at [31].
26
Supra (note 1 above) at [26]-[28].
27
Supra (note 1 above) at [27].
28
Supra (note 22 above) at [83], [85], [111]-[112].
29
Supra (note 16) at [86].
30
Supra (note 22 above) at [31].
31
Supra (note 1 above) at [27].
32
Supra (note 22 above) at [59], [78].
33
Supra (note 1 above) at [34].
34
Supra (note 23 above) at [11].
35
Supra (note 14 above), 212D-E, cited ibid at [12].
36
Supra (n 14 above), 238H-239A.
37
Supra (note 1 above) at [27].
38
This is trite law, and is evident in such cases as AAG v Estate of AAH, deceased [2010] 1
SLR 769 at [7]; Seow Wei Sin v Public Prosecutor [2011] 1 SLR 1199 at [21]; Building
Construction Employees and Builders’ Labourers Federation of New South Wales v Minister
for Industrial Relations (1986) 7 NSWLR 372, 406B; and R v Secretary of State for the
Home Department, ex parte Simms [2000] 2 AC 115, 131F.
39
[2012] 4 SLR 476.
*BA (Hons) (1st Class) Jurisprudence (Oxon); currently reading for the
BCL (Oxon).
Notes
Feature
1
Calvin Liang and Sarah Shi, Singapore Law Gazette (August 2014), p 12.
40
Supra (note 1 above) at [29].
2
Ibid, preamble, [3], [23]ff, [37]ff.
41
Supra (note 1 above) at [40].
3
AIR 1973 SC 1461.
42
Cf. the criticism by the authors at note 1 at [41].
4
I C Golak Nath v State of Punjab AIR 1967 SC 1643.
43
Ibid at [3].
5
Sikri CJ, Shelat, Hegde, Grover, Jaganmohan Reddy, Khanna, and Mukherjea JJ, cited
Subba Rao, “The Two Judgments: Golaknath and Kesavananda Bharati” (1973) 2 SCC
(Jour) 1, J-18.
44
(1992) 177 CLR 106, 135.
Singapore Law Gazette November 2014
Feature
42
45
Ibid, 170.
46
Ibid, 137-138.
75
Supra (note 3 above), p 1624 at [669]; p 1628 at [680].
47
Cf. the fact that the Australian Constitution makes no explicit mention of fundamental
rights because of a “deliberate” choice based upon a faith in the democratic process to
protect Australian citizens against unwarranted incursions upon the freedoms which
they enjoy”, such protection to be done “by the constituencies and not by the courts”:
ibid, 182, (per Dawson J, dissenting).
76
Dicey, Introduction to the Study of the Law of the Constitution (10e, 1959), pp 76-81.
77
Supra (note 14 above), pp 238-239.
78
Jeyaretnam Kenneth Andrew v Attorney-General [2014] 1 SLR 345 at [48].
79
R (Jackson) v Attorney-General [2006] 1 AC 262, [102], cited supra (note 1 above) at
[50].
48
or abridge fundamental rights” but have such an amendment blocked by the judiciary.
(1926) 38 CLR 153, 178-179
49
Supra (note 3 above), p 1535, at [302].
80
Supra (note 38 above).
50
Supra (note 3 above), p 1603 at [599].
81
Supra (note 3 above), eg p 1750 at [1163].
51
Supra (note 3 above), p 1693 at [959].
82
Chan, “Judicial Review – From Angst to Empathy” (2010) 22 SAcLJ 469, p 480.
52
Supra (note 3 above),pp 1601-1602 at [594].
83
53
Supra (note 3 above), p 1902 at [1548(2)].
For a comment on the difference that the green-light model made to the case, see
Ong, “Public law theory and judicial review in Singapore” (2013) Singapore Law Watch
Commentary (Issue 1/Dec 2013), p 3
54
Supra (note 3 above), pp 1901-1902 at [1547]
84
55
Supra (note 3 above), p 1639 at [722].
56
Section 1, Constitution of Mauritius, as interpreted in State of Mauritius v Khoyratty
[2007] 1 AC 80.
As it did in Vellama d/o Marie Muthu v Attorney-General [2013] 4 SLR 1. See also the
arguments in Kavanagh, “Proportionality and Parliamentary Debates: Exploring Some
Forbidden Territory” (2014) 34 OJLS 443 (albeit in a different context).
85
Section 9A(2), Interpretation Act (Cap 1).
57
Preamble, Constitution of India.
86
Supra (note 38 above).
58
Preamble and Arts 20 and 79(3), Basic Law for the Federal Republic of Germany,
trans Tomuscha, Currie, and Kommers; available at: https://www.btg-bestellservice.
de/pdf/80201000.pdf (accessed 3 October 2014).
87
(1986) 7 NSWLR 372, pp 405D-E
88
Hart, “Positivism and the Separation of Law and Morals” (1958) 71 HarvLRev 493,
section IV.
89
Kavanagh, “Participation and Judicial Review: A Reply to Jeremy Waldron” (2003) 22
Law and Philosophy 451.
90
See generally the possible models in Weill, “Evolution vs Revolution: Dueling Models
of Dualism” (2006) 54 American Journal of Comparative Law 429.
91
Kirby, 1997 Deakin Law School Public Oration: Popular Sovereignty and the True
Foundation of the Australian Constitution; available at: http://www.hcourt.gov.au/
assets/publications/speeches/former-justices/kirbyj/kirbyj_deakin2.htm (accessed 6
October 2014), fn 35.
92
Supra (note 3 above), p 1850 at [1406]; p 1859 at [1436].
59
Section 1, Constitution of Belize, as interpreted in Bowen v Attorney-General BZ 2009
SC 2 (cited supra (note 1 above) at [17], though it is here argued that the Court in
fact did not go so far as to hold that the principle of democracy was part of the “basic
structure” of the Constitution of Belize in the Kesavananda sense).
60
Proclamation of Singapore, part of preamble to Independence of Singapore Act 1965.
61
Article 3; art 6(1)(a); and Part IV respectively.
62
[2007] 1 AC 80, [12].
63
In Singapore, such limits include (for example) the requirement that deprivation of
life or personal liberty be done only “in accordance with law” (art 9(1)) and that the
rights to freedom of speech, expression, assembly, and association can only be restricted
by Parliament, which must “consider” the restrictions necessary on one of a limited
number of grounds.
64
Supra (note 5 above), J-6.
65
Supra (note 1 above) at [47].
66
Tripathi, “Kesavananda Bharati v The State of Kerela: Who Wins?”, (1973) 1 SCC
(Jour) 3, J-32.
67
Supra (note 1 above) at [48].
68
Supra (note 1 above) at [44].
69
1 BVerfGE 14 (1951), cited supra (note 1 above) at [42]; reproduced in Kommers,
The Constitutional Jurisprudence of the Federal Republic of Germany (2e, 1997), p 62 at
[2]-[3].
70
(2011) 44 Israel LR 321, 336-338, cited supra (note 1 above) at [42].
71
Supra (note 1 above) at [43].
72
Supra (note 3 above), p 1861 at [1444].
73
Preamble, Basic Law for the Federal Republic of Germany, supra (note 58 above).
74
To use the phrase of Khanna J, supra (note 3 above), p 1850 at [1406]. It is notable that
Khanna J saw undesirable revolution as the product of inflexibility in constitutional
amendment, eg if “the overwhelming majority of people” were to want to “take away
Singapore Law Gazette November 2014