Singapore Comparative Law Review (UKSLSS Law Journal) 2025

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‘Substantive Legitimate Expectation’ Works – An Analysis of the Normative Concerns of the Doctrine in Singapore and Proposing a Deference-Modulated Model of Substantive Legitimate Expectation

Standing at Crossroads: The Growing Convergence of Standing Rules in Singapore and the UK

Wei Pheng Koon

We, The Jury… Analysing the Role of Jury Systems in Relation to Justice and Fairness

Nickolaus Ng

Filling the Gaps in Reproductive Wrongs: Loss of Genetic Affinity and its Potential in UK Law

Anni Huang, Cheryl Soong, Wesley Gordon Harrison and Zun Yin Ngo

Drawing the Line: Fixing Normal Baselines under Article 5 UNCLOS

Delaney Lim

Identifying and Navigating the Constitutional Penumbra of Fundamental Liberties in Singapore

Isaac Tan Kah Hoe and Bonnie Yeo Lu-Anne

Alliancing for Singapore’s Complex Road and Tunnel Projects: A Better Way to Build the North-South Corridor?

Joyee Goh

Dear Readers,

PRESIDENT’S ADDRESS

This year, we celebrate the 27th anniversary of the United Kingdom Singapore Law Students’ Society (“UKSLSS”) and the publication of the 20th Edition of the Singapore Comparative Law Review (“SCLR”). I would first like to begin by commending and thanking our Editor-in-Chief, Choon Wee Yeo, and the larger editorial team for their conscientious efforts in ensuring that this year’s edition embraces new perspectives across various jurisdictions, upholds the publication’s comparative uniqueness, and provides students with a valuable platform for academic research. Its success is a cumulation of their collective dedication.

A Recap of the 2024/2025 Academic Year

Throughout this year, the UKSLSS has remained resolute in its mission to serve as a pivotal bridge between Singapore and Singaporean law students studying in the United Kingdom. This has been realised through a wide range of career events, strengthened sponsorships, and the diligent efforts of our editorial team.

In the spirit of fostering community, we proudly inaugurated the Legal Careers Helpdesk, which combined our annual Vacation Scheme Helpdesk and Bar Careers Talk into a singular, consolidated event. This initiative not only streamlined support for our members but also provided an opportunity for engagement with numerous alumni who graciously participated. I would like to extend my heartfelt gratitude to our coordinators, Nicole Lim and Andrew Ng, whose unwavering commitment was integral to the success of this event. The UKSLSS is steadfast in its endeavour to cultivate a supportive environment, one that offers a genuine sense of community and reassurance to our members. This was exemplified by the Chinese New Year dinners organised by our university representatives across the UK, reinforcing our shared mission of connecting members to their roots.

In continuation of the work of our predecessors, we have prioritised career-centric initiatives by expanding our sponsorship portfolio. This year, we witnessed a commendable increase in sponsor partnerships and successfully forged strategic collaborations with the Judicial and Legal Services, and the Singapore Institute of Legal Education (SILE). We are privileged to

count among our sponsor firms one Bronze sponsor, eleven Silver sponsors, and two Gold sponsors. The UKSLSS London chapter hosted numerous in-person recruitment events, including the Rajah & Tann Meet & Mingle as well as our inaugural event in partnership with the Judicial and Legal Services across London, Cambridge, and Oxford.

Beyond event organisation, we have sought to enhance student support through collaborations with our sponsor firms on feature articles. These contributions aim to broaden access to pertinent information and afford students valuable insights into Singapore’s legal landscape, thereby reinforcing their connection to developments back home.

Back in Singapore, over the summer months, the Society has continued its operations in tandem with events hosted by our sponsor firms. This year, we were honoured to welcome Freshfields as a new sponsor and Clifford Chance as our newest Gold sponsor, each hosting their respective Open House events. Additionally, the UKSLSS organised its annual Freshers’ Tea, providing a warm welcome to incoming members and equipping them for their forthcoming legal journey abroad. Finally, our flagship event, the Singapore Legal Forum, was executed on 23rd August 2025, featuring the Honourable Justice Kristy Tan as Guest of Honour.

The 20th Edition of the Review

Finally, let me take some moment to reflect on the 20th edition of the Singapore Comparative Law Review. It is once again the Review’s distinct privilege to have former Chief Justice Chan Sek Keong as its patron, as we proudly mark thirteen years under his invaluable patronage and mentorship. I extend my sincere appreciation to him for penning the foreword and for providing insightful reflections on each of the articles featured in this edition.

This year’s edition stands out for its diversity, notably including a law student from an Australian university for the first time a testament to the Review’s uniqueness and creative spirit. We are also pleased to have established a connection with our counterpart society in Australia and collaborated on a blog article. While this direction may be somewhat unorthodox, it embodies our hope to continue forging relationships with other Singaporean societies around the world, thereby nurturing a culture of belonging and fostering closeness among our members. After all, in an increasingly globalised legal environment, cultivating these bonds is essential for both personal growth and collective strength.

I shall leave Choon Wee to provide a detailed introduction to the contents of this year’s edition. However, I wholeheartedly commend the authors and editors for their steadfast dedication to

the development and promotion of legal thought and reasoning. The quality and calibre of the articles have risen considerably, encompassing a broad spectrum of topics with depth and originality. I invite everyone to engage with this edition with an open mind and to appreciate the considerable thought and effort invested by our student contributors.

On a personal note, I would like to express my deepest gratitude to the Executive Committee for their tireless efforts and commitment in ensuring another successful year for the UKSLSS. From the bottom of my heart, I could not have achieved this without each and every one of you. It has been a privilege to meet and work alongside such dedicated individuals, and I sincerely hope our paths cross again in the future.

It is my hope that you enjoy this year’s edition of the Review and take to heart that the study of law is an ongoing journey of continuous growth, reflection, and learning. The pursuit of legal knowledge is never complete, and it is through persistent inquiry and open-mindedness that we refine our understanding and contribute meaningfully to the legal profession.

The path through law is long and demanding, but I trust that the UKSLSS has provided a source of support and comfort as you begin this journey. I eagerly anticipate witnessing the unique journeys you each undertake, whether within the legal field or beyond, and I hope that you find success and fulfilment in whatever path you choose to follow.

Yours sincerely,

Alyson Lim Shi

25th President of the United Kingdom Singapore Law Students’ Society

Dear Readers,

EDITOR-IN-CHIEF’S ADDRESS

It is with great pleasure that I present to you the 20th Edition of the Singapore Comparative Law Review, the flagship publication of the United Kingdom Singapore Law Students’ Society (“UKSLSS”).

From its humble origins as Lex Loci in 2006, the Review has evolved significantly over the years, adapting to the ever-changing interests of authors and readers. This milestone edition is no exception. For one, it reinforces the progress made by the 19th edition, which featured the debut participation of law students from Singapore universities as authors. This year, I am proud that among the list of authors stands Joyee Goh, a law student from the University of Melbourne. This Review is unique because it offers the amalgamation of different perspectives, bringing depth and flavour to our understanding of the law in the contemporary world. For the first time in the Review’s history, we not only hear from Singaporeans educated in English law or Singaporean law, but also in Australian law. This growing involvement strengthens the Review’s comparative nature, and I hope that we may all appreciate and cherish the unique diversity which this Review holds.

Joyee’s submission is not only a testament to the growing inclusion of perspectives but also the developing acceptance of ideas and interests in this Review. Her submission, titled “Alliancing for Singapore’s Complex Road and Tunnel Projects: A Better Way to Build the North-South Corridor?”, explores alliancing as a method of contracting which has not been used in Singapore. Together with Nickolaus Ng’s submission titled “We, the Jury… Analysing the Role of Jury Systems in Relation to Justice and Fairness”, which advocates for a jury-less system, the 20th edition highlights a review of the law beyond a traditional academic focus and inches towards a more holistic analysis of the broader legal frameworks and methodologies. The importance of doing so is clear - law exists not in a vacuum but in conjunction with commercial and practical realities. Providing a deeper understanding of wider topics enables a lawyer to better understand the implications of the law, especially in this turbulent world. I hope that you may enjoy the insights offered by these articles as I do, and I invite you to celebrate every author’s efforts as we continue to allow ideas to flourish in the Review.

Indeed, a proud feature of this year’s edition is the variety of topics covered. Although seemingly public law-heavy, with four out of ten articles covering constitutional and administrative law issues, the remaining six articles present a great assortment, ranging from comparing Singapore’s Workplace Fairness Act 2025 and the UK Equality Act 2010 to the interpretation of Article 5 of UNCLOS. Despite the overwhelming number of pitches received favouring public law issues (almost 70%), the Review remains true to its steadfast mission of introducing a balanced range of thought-provoking issues to readers, straddling between public and private law topics. I hope that for future editions, more authors may consider exploring private law issues, lending further strength to the robustness of the Review. Nevertheless, the editorial committee stays simultaneously committed to ensuring authors’ interests are reflected, irrespective of the spread of areas of law covered.

It is with a heavy heart that I bid farewell to this journey. A few thanks are in order.

Firstly, I would like to thank former Chief Justice Chan Sek Keong for once again gracing this Review with his foreword. His dedication to the Review has remained unwavering throughout the years, and I am sure every author and reader will benefit from his feedback. Personally, I will treasure his stimulating insights on how the Review should grow, and I am grateful for his authentic expressions.

Secondly, none of this would have been possible without the support of our sponsors. The lives of members of the UKSLSS continue to thrive because of the backing of our sponsors.

Lastly, I am eternally indebted to the hard work and dedication put in by all the authors, editors, managing editors and Executive Committee of the UKSLSS. The editorial committee has worked tirelessly since the start of 2025 to draft, edit and redraft the articles countless times. Their work, like all works, will continue to fall short of the standards of perfection, but I am thankful for their professionalism, grit and humility in seeing through this tall order with me.

I hope that as you read through these pages, you will find something meaningful and memorable. And most importantly, revel in the perpetual journey of learning about the law.

Thank you.

Yours sincerely,

Choon Wee Yeo Editor-In-Chief of the 20th

Singapore

Comparative Law Review

UKSLSS EXECUTIVE COMMITTEE 2024/25

Left to Right: Choon Wee Yeo (Editor-In-Chief), Clarise Chan (Marketing Director), Hui Ling Tay (Finance Director), Alyson Lim Shi (President), Rebecca Kyi Thanthar (Vice-President), Chrisllynn Siah (General Secretary), Natasha Mok (Sponsorships Director)

Jia Hao Koh

EDITORIAL COMMITTEE

Editor-In-Chief

Choon Wee Yeo

Managing Editors

Jun Xiang Wong

Editors

Aiko Yeo

Davon Pung

Lim Yee Rei

Nickolaus Ng

Alysa Lee Mynn

Julius Goh

Min Sittman

Seraphine Lai

Kang Zi Yuan

Amelia Neo

Junwei Huang

Natasha Wong

Sit Jie Ren

PATRON’S FOREWORD

It is with great pleasure that I write the Foreword to this year’s issue of the Singapore Comparative Law Review (“SCLR”) 2025. It was in 2013 that I first wrote the Foreword for that year’s issue when it was called Lex Loci The title was interesting for its ambiguity in that the lex loci of the review could be UK or Singapore, or even both.

As every Singaporean law student knows, or should know, the legal system of Singapore was established by the 1826 Charter of Justice under which English statutes of general application existing in 1826 and the common law of England were introduced in Singapore, Malacca and Penang, subject to local circumstances. As Singapore was a ceded, and not a settled territory, the qualification was necessary to ensure that English law (with its different racial, religious cultural, social or political values) would not be applicable if it were to cause injustice to the local inhabitants.1 English law assumes that a ceded territory would already have a lex loci (the law of the place). Singapore island then had a small population of Malays and probably some Arabs or Indians or even Chinese.

From 1826 to the 1950s, the Singapore judiciary was populated wholly by English judges. From 1955 up to 1981 local lawyers, mainly government legal officers, educated in English law by English law teachers in English law schools, were appointed as judges. However, the first local Chief Justice appointed in 1963 was a private practitioner. Until the late 1980s, the Privy Council was still the apex court of Singapore, and therefore the development of common law in Singapore was ultimately still in the hands of English judges. During this period, utmost deference was given by local judges to English case law, especially the judgments of the House of Lords and the Privy Council. Hence, Singapore common law was virtually a carbon copy of English common law.

1 See Lord Denning in Nyali v Attorney General [1956] 1 QB 1.

Change in judicial attitudes came 25 years later in 1981 with the appointment of the first local law graduate (of the NUS law school established in 1956), and a new Chief Justice in 1990 and the progressive restriction of appeals to the Privy Council. From the early 1990s, the younger local judges felt that Singapore should develop a common law with Singapore characteristics to reflect Singapore’s national values, and to depart from English law in appropriate circumstances.

It was in this environment that Parliament, in deciding to cease reliance on English commercial legislation pursuant to section 5 of the Civil Law Act, reset the foundation law of Singapore by enacting the Application of English Law Act 1993 (“AELA”) in two steps. First, it abrogated all English statutes of general application existing as at 1826, and re-enacted as part of Singapore those statutes that were deemed essential as Singapore’s foundation laws. Second, the AELA provided that the common law of England so far as it was part of the law of Singapore immediately before 12 November 1993, continues to be part of the law of Singapore The premise of this provision is that the common law of England, once received in Singapore under a court decision, becomes the common law of Singapore (just as the common law received in such manner in Malaysia or any other common law jurisdiction, becomes the common law of that jurisdiction). These separate streams of the common law continue to share the legal, ethical or moral values of the mother common law, but which may be developed to accord with the cultural, religious, social, economic and political values of the receiving jurisdiction

In this context, the SCLR has, since 2006, provided a valuable platform for our UK law students to write on developments in the written and common law of England and Singapore law. According to the editors of the 2013 issue, “the purpose of Lex Loci is to reflect the interest the community [of Singaporean law students in the United Kingdom] has for Singaporean jurisprudence and development in Singapore’s legal scene, and to make its own contribution to academic discussion in areas members are passionate about”.

The current issue of the SCLR contains 10 articles, four of which are focused on constitutional and administrative law, in the areas of (a) locus standi, (b) substantive legitimate expectations, (c) proportionality in constitutional law, and (d) judicial review. Notably, these essays are from students reading law in Cambridge and Oxford.

There is one essay each on (1) the justice and fairness of the jury system; (2) Article 5 of UNCLOS; (3) loss of genetic affinity; (4) mental disorder and voyeuristic offences; (5) the Singapore Workplace Fairness Act 2025 compared with the UK Equality Act 2010; and (6) “alliancing” in the construction industry.

My comments on these articles are as follows:

(1) MAKING ‘SUBSTANTIVE LEGITIMATE EXPECTATION’ WORKS

– AN ANALYSIS OF THE NORMATIVE CONCERNS OF THE DOCTRINE IN SINGAPORE AND PROPOSING A DEFERENCE-MODULATED MODEL OF SUBSTANTIVE

LEGITIMATE EXPECTATION

Author: Kai Zhen Tek (University of Cambridge) (Chan Sek Keong Award for Best Article)

Procedural legitimate expectation in judicial review of executive decisions has been recognised by the courts in Singapore for a long time. In Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority (“Chiu Teng”), the High Court recognised substantive legitimate expectations (“LSE”) as an independent ground of judicial review of administrative action, in the interest of good governance. In SGB Starkstrom Pte Ltd v Commissioner of Labour [2016] SGCA 27 (“Starkstrom”), the Court of Appeal reviewed Chiu Teng and expressed its deep concerns about the applicability of LSE in Singapore as it would involve reviewing the merits of executive action, of which the courts might lack institutional capacity, and doing so might blur the separation of powers.

This commentator agrees with the principle in Chiu Teng If good governance requires the Government to keep its promise in a matter where it has legitimate authority or power to make the promise, then the Court should hold the Government to its promise, especially whether the promise has relied on it to his detriment. This principle should apply whether the promise or representation concerns a procedural right or a substantive right.

In Tan Seng Kee v Attorney-General [2022] SGCA 16 (“Tan Seng Kee”), the Court of Appeal did an about turn and applied the LSE to dismiss Tan’s appeal that section 377A of the Penal Code was invalid for inconsistency with the constitutional right of equality before the law and equal protection of the law under Article 12 of the Constitution in criminalising male/male acts

of gross indecency in public or private, but not similar acts in similar circumstances between male/female and female/female actors.

However, the Court shut down Tan’s appeal and dismissed it on the ground that he was not at risk of being prosecuted under section 377A as the Attorney General, as the Public Prosecutor (PP), had made a public statement that all male homosexuals in Singapore would not be prosecuted for such offences, if committed in private. The Court of Appeal held that Tan had acquired a SLE, which he had not asked for, which immunised him from being prosecuted.

In this article, the author discusses the normative basis for recognising SLE as part of Singapore law, and how the Court overcame its concerns expressed in in Starkstrom and finds the Court’s reasoning inadequate, and that the level of deference given by the Court to the PP’s “representations” (in light of the prevailing religious and political attitudes to section 377A) obscures key principles underlying the doctrine of SLE. The author concludes as follows:

“In sum, while it is a step in the right direction to recognise the legal effects of the representations made by the AG, the recognition of SLE in Singapore administrative law is done in a hasty manner. The exceptional and limited circumstances of the recognition does not absolve the court of the responsibility to ensure that the English doctrine is incorporated in a principled manner. Raising the convenient argument that deferring to the conclusion reached by the AG and Parliament, any recognition of SLE does not violate SOP and the review/merits distinction, the Court in Tan Seng Kee omitted important discussion of the normative underpinning of the doctrine which compel us to recognise it in the exceptional context. While the outcome is commendable, the judicial reasoning can be imprecise and unsatisfactory at times, eschewing neater ways of explaining that are in line with administrative orthodoxy.”

The author does not explain why if the recognition of SLE in Tan Seng Kee was done in a hasty manner, and the judicial reasoning unorthodox, it was a step in the right direction, presumably for the development of administrative law in Singapore. Also, it is hard to commend the outcome to Tan and his other appellants as there is no evidence that they desired it since their primary ground of appeal was that section 377A was inconsistent with Article 12. What can be said is that a great deal of thought and deliberation was invested in the decision

to give a “one off” recognition to the SLE, without opening the door to a merits review of executive acts or decisions. What the Court did not appear to have considered was giving effect to the AG’s “representations” to the relevant “representees” was to enable the AG to suspend the operation of section 377A which he had no power to do, and neither has the Court to declare that section 377A was unenforceable, if the Public Prosecutor chose not to enforce it. It should not be forgotten that the appeal in Tan Seng Kee involved the constitutionality or otherwise of legislation, and not the legality of an administrative decision. An executive decision by the AG, even one made in his discretion as the Public Prosecutor, cannot trump the people’s constitutional right not to be prosecuted for an offence under an unconstitutional law.

Tan Seng Kee is an unusual case where the Court of Appeal could easily have decided whether or not section 377A was inconsistent with Article 12 of the Constitution. A previous Court of Appeal and four other High Courts have decided likewise. Yet, the Court chose to vest Tan with a SLE to neutralise Tan’s appeal that section 377A was unconstitutional under Article 12, without having to decide whether it had any merit, unlike Tan’s other arguments under Article 9 and 14, which were examined in great detail. If Tan’s arguments based on Article 12 had no merit, it would have been simpler to decide it had no merit. This is only one of the many unusual features in the litigation on whether 377A was inconsistent with Article 12.

(2) “IT WASN’T ME”: A REVIEW OF MENTAL DISORDERS AND LEGISLATION SURROUNDING VOYEURISTIC OFFENCES

Authors: Zoe Toh (Singapore Management University), Elizabeth Lim (Singapore Management University) (Joint Runners-Up for Best Article)

This is an interesting and well researched article on the medical causes of voyeurism, its growth in Singapore, its criminalisation and punishment up to 2020 under section 377BB of the Penal Code, and the case law in Singapore. The authors also compare the legislative regime and the case law in Canada and the UK and observe that despite the best efforts of the relevant governments to check this form of criminal conduct, voyeurism has continued to rise. However, given the ease with which voyeurism and voyeuristic-related offences can be committed under section 377BB, Singapore had 467 cases in 2021 which increased to 519 cases in 2024. This increase of about 10% over 4 years seems relatively small, and shows that such offences are under control in Singapore, and supports the authors’ conclusion that section 377BB is an efficient law in checking the spread of voyeurism in Singapore.

The authors also discuss voyeurism as a form mental disorder or a sexual control impulse disorder. Voyeurism is considered under two categories: those with behavioural preferences (a disorder of atypical sexual preference) and those with incapacitating conditions (which include Compulsive Sexual Behaviour Disorder). This part is technical and is relevant to how offenders should be sentenced, for which a useful discussion on the principles and practice in the three jurisdictions is provided, such as general and specific deterrence, rehabilitation and incarceration as deterrence.

An innovative feature of this article is that the authors did what may be called “field research”. They conducted an e-mail interview with Dr Cheow Enquan of the Institute of Mental Health (22 October 2023) in which they asked Dr Cheow to answer 12 questions. His answers to the questions are confidently stated and easy to understand. When asked whether “the court/criminal justice system has a good understanding of the mechanism of voyeuristic disorders”, Dr Cheow’s reply is that

“The court is not required to have a good understanding of mental disorders including voyeuristic disorder. This is why they need forensic psychiatrists to assist them as expert witnesses in order to understand the disorder and come to the correct considerations for sentencing.”

Dr Cheow’s covering email response and his interview answers provide a good understanding of the inherent problems faced by the courts in assessing expert evidence called by the parties.

(3) CREATED EQUAL? A COMPARATIVE ANALYSIS OF PROTECTED CHARACTERISTICS UNDER THE WORKPLACE FAIRNESS ACT 2025 AND THE EQUALITY ACT 2010

Author: Jun Xiang Wong (University of Cambridge) (Joint Runners-Up for Best Article)

This article discusses the scope of the Workplace Fairness Act 2025 (“WFA2025”) in prohibiting “employment decisions” that discriminate against employees or applicants on the grounds of certain protected characteristics, which are (a) age; (b) nationality; (c) sex; (d) marital status; (e) pregnancy; (f) caregiving responsibilities; (g) race; (h) religion; (i) language ability; (j) disability; and (k) mental health condition. Currently these characteristics

constitute more than 95% of discrimination complaints received by the Ministry of Manpower (“MOM”) and the Tripartite Alliance for Fair & Progressive Employment Practices (“TAFEP”).

In comparison, the Equality Act 2010 (“EA 2010”), prohibits discrimination in employment on the basis of the following protected characteristics under the EA 2010: (a) age; (b) disability; (c) gender reassignment; (d) marriage and civil partnership; (e) pregnancy and maternity; (f) race; (g) religion or belief; (h) sex; and (i) sexual orientation.

The author points out that although the WFA2025 has a longer list of protected characteristics than the EA2010 and many of them are the same or overlap, detailed examination of these characteristics show that the WFA 2025 is likely to have the effect of providing less protection to workers in Singapore. It is difficult not to agree with the author especially in relation to categories (c) gender reassignment, (d) partnership; (g) religion and belief, and (i) sexual orientation, having regard to the existing case law on similar characteristics under the Constitution, making the WA2025 extremely deficient in these respects. The author points out that the WFA2025 provides certain exceptions which make it possible for employers to discriminate workers on (a) minimum age requirement, or “reverse ageism”; and (b) nationality (non-citizen and non-permanent resident workers who constitute the bulk of Singapore’s work force (66.6% in 2024).

Since the WFA 2025 is not yet in force, it will not be known whether the author’s concerns and views will prove to be correct when the legislation is implemented. Nevertheless, this article has provided a very useful discussion of the scope of the WFA 2025 which may or may not live up to its name.

(4) A SHIFT IN THE BALANCE: PROPORTIONALITY IN SINGAPOREAN CONSTITUTIONAL LAW

Authors: Priyansh Shah (London School of Economics and Political Science), Jia Hao Koh (London School of Economics and Political Science) (Honourable Mention)

This article reviews the arguments for and against the introduction of proportionality review in Singapore’s constitutional rights jurisprudence, against the backdrop of English administrative law which does not permit such form review due the fundamental principle of parliamentary

supremacy. The authors argue in favour of such form of review in Singapore as neither principle nor precedent blocks its application, and that “the narrow drafting of constitutional rights and the principle of separation of powers” are not impediments to its acceptance as part of Singapore law The authors however recognise the “political climate” that may inhibit the courts from developing administrative and constitutional review in this direction, and therefore the courts might have to adopt a strategy of “maxi-minimalism”, which the authors describe as follows:

“Maxi-minimalism, articulated in proportionality review through the reading down of the necessity and balancing limbs in line with the Constitutional text so as to allow greater deference to Parliament, allows the vindication of junzi while also presenting future opportunities for Singaporean constitutional law to grow into a true guarantor of norms of justified governance.”

This commentator agrees with the authors’ thesis that proportionality review should be accepted as part of Singapore law. Its application encourages good governance, in terms of equity and fairness, and also serves to preserve and protect fundamental liberties from excessive dilution.

It is not clear from their review whether the authors have paid sufficient regard to the significant difference between proportionality review of legislative acts and executive acts. The latter is premised on a law that is constitutionally valid. The former challenges the constitutionality of that law. Reliance is made to Chee Siok Chin and others v Minister for Home Affairs and another [2006] 1 SLR(R) 582 as authority that proportionality review is not part of Singapore law. There, V K Rajah J said:

“Needless to say, the notion of proportionality has never been part of the common law in relation to the judicial review of the exercise of a legislative and/or an administrative power or discretion. Nor has it ever been part of Singapore law.”

However, note the following caveats on the authority of this statement: (1) it is obiter since there was no argument on proportionality in that case, nor was it necessary for the disposition of the appeal; (2) no authority was cited in support of this statement; (3) in relation to executive actions, the Court of Appeal’s decision in Dow Jones Publishing Co (Asia) Inc v Attorney-

General [1989] 1 SLR(R) 637, was not referred to. There, the Court did not reject the proportionality argument advanced by the appellant, but held that it was not applicable on the facts. The argument was that the Minister ’s order curtailing the daily circulation of the AWSJ in Singapore from 5000 copies to 400 copies for an indefinite period was a disproportionate penalty to inflict on the AWSJ for refusing to give the Government the right of reply. The Court said:

“Apart from making this submission in general terms, he has not suggested what would have been a proper restriction, assuming that the doctrine of proportionality applies to a case of this nature. This court has observed in Chng Suan Tze ([27] supra) that disproportionality as a ground of judicial review contains within it an element of unreasonableness or irrationality. The underlying basis of the restriction order is the need to make it difficult but not impossible for the AWSJ to communicate its unwanted views to its Singaporean readers in Singapore. What is an appropriate restriction is, in our view, purely a matter for the judgment of the Minister. The court has no right to interfere with the Minister’s decision in that respect unless it is made in bad faith or perversely. In the instant case, we are not prepared to substitute our judgment for that of the Minister in determining whether the restriction made against the AWSJ is out of proportion to its infractions.”

Proportionality review of legislation, i.e., section 377A, was argued as part of the reasonable classification test in Ong Ming Johnson v Attorney-General [2020] SGHC 63. The High Court reviewed the case law from India, Malaysia, US and Hong Kong, and found that it was accepted as such in India (in Om Kumar v Union of India AIR 2000 SC 3689, and, Anuj Garg and others v Hotel Association of India and others (2008) 3 SCC 1); in Malaysia (in Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333); in Hong Kong (in Secretary for Justice v Yau Yuk Lung Zigo (2007) 10 HKCFAR 335, and, under Article 25 of the Basic Law of the Hong Kong SAR); the USA (in Romer v Evans 517 U.S. 620 (1996)).

Nevertheless, the High Court found these authorities to be of limited assistance in establishing the applicability of a proportionality-based approach in Singapore law, without giving any meaningful explanation, other than citing Chee Siok Tin as having established the law in Singapore, and stating that “proportionality review would necessarily involve a review of the legitimacy of the object of a statute, and enable the courts to usurp the legislative function and

act like a “mini-legislature”, which the Court of Appeal cautioned against in Lim Meng Suang CA (at [82]).

In Xu Yuanchen v Public Prosecutor [2023] 5 SLR 1210, another High Court reiterated that proportionality review had no place in Singapore’s constitutional jurisprudence, citing Chee Siok Tin at [83]. The Court also said at [84] “Besides the forgoing difficulty, adoption of proportionality analysis would contradict the principle of separation of powers, which is well established in Singapore constitutional law: Jolovan Wham …at [27].” It is not clear why proportionality review contradicts the separation of powers, as the Court provided no explanation. In fact, Jolovan Wham at [28] states “that it is unequivocally for the Judiciary to determine whether that derogation falls within the relevant purpose”, i.e. it is up to the courts to decide whether any impugned legislation is inconsistent with the Constitution. This principle does not mean that legislation disproportionate to its purpose or without any rational relationship to its purpose, and which abridges constitutional rights is not unconstitutional.

The Court also stated at [75] that “Thus, the analysis for the constitutionality of pre independence laws under Art 14 was no different from that for post-independence laws – ie, via the framework under Art 14(2)(a).” This statement is also contestable. The Court did not refer to Article 162 which provides for the continuation of all existing laws which shall be construed with such modifications, adaptions and exceptions to bring them into conformity with this Constitution. This means that if proportionality review is applicable to postindependence legislation, it should equally apply to pre-independence statutes because the purpose of Article 162 is to ensure that all legislation conform to the Constitution.

VK Rajah J’s observation that the proportionality review of legislation has never been part of the common law was correct as the courts were subject to parliamentary supremacy under the UK unwritten constitution. That leaves no room for any kind of substantive judicial review of the constitutionality of any UK Act of Parliament. Indeed, after the UK became a member of the European Union, the English courts had to apply proportionality review of English legislation by legal force of the European Convention on Human Rights (ECHR) under which proportionality review of legislation of member states was available.

By parity of reasoning, proportionality review ought to be available under the Singapore Constitution in respect of any law passed by Parliament. It is not an alien import, but inherent

in the nature of constitutional protections of fundamental liberties or rights. There is no constitutional impediment to the Judiciary, in exercise of its judicial power under Article 93, to apply proportionality review to Acts of Parliament. Likewise, the Judiciary does not need to rely on the common law to review the legality of executive acts on grounds of illegality, procedural impropriety or breach of natural justice, or breach of constitutional rights. Applying Occam’s razor, breach of constitutional rights is the simplest explanation justifying proportionality review as inherent in Singapore’s legal system.

(5) “STANDING AT CROSSROADS: THE GROWING CONVERGENCE OF STANDING RULES IN SINGAPORE AND THE UK”

Author: Wei Pheng Koon (University of Cambridge)

The article discusses the divergence between English law on (a) personal locus standi and (b) representative locus standi.

In respect of (a) English law requires a claimant to demonstrate a “sufficient interest” , an approach Singapore initially adopted, but was later discarded in Tan Eng Hong v AttorneyGeneral in favour of a “rights-based standing rules”. Under this approach, the claimant must show that the state violated an identifiable constitutional right.

In respect of (b) English law is “generally branded” as being more expansive than Singapore law. Since Lord Reed observed in Fleet Street Casuals that “technical rules” of standing should not prevent “a pressure group, like the [claimant], or even a single public-spirited [party]” from getting a court to “vindicate the rule of law and [getting]…unlawful conduct stopped”, representative locus standi, particularly associational and public interest standing, have flourished in the English context. In contrast, Singapore courts do not accept representative standing. Such locus standi may only be claimed if the applicant can show a personal connection to the case.

The author attributes Singapore’s narrow approach in both kinds of locus standi to their deference to the executive - the so-called green light theory of administrative law, whilst the UK is “perceived” to have adopted a red-light approach towards administrative law The author challenges this thesis of divergence in locus standi by reference to three areas where the approaches of “both jurisdictions” measured, characterised by moderate, controlled expansion,

which he calls “structural convergence” (the arrangement of various rules of standing in both jurisdictions); (b) “doctrinal convergence” “in their shared emphasis on rights”; and (c) “evolutive convergence” (neither jurisdiction is wholly red- or green-light, placing both jurisdictions more closely together in a middle “amber-light” zone rather than at one or the other extreme end of a red-light/green-light spectrum).

My short comment on the author’s thesis is that it reflects substantially the legal position in Singapore and that despite Tan Eng Hong and Vellama, the Singapore courts will remain conservative in according locus standi to challenge legislative or executive actions. This judicial culture will take time to change, if at all. Whether the principles will develop retrogressively or progressively, and stand still, depend very much on the current composition of the Court of Appeal. It is likely that a larger leeway will be accorded to constitutional challenges than administrative challenges. Vellama could be interpreted a case of both personal as well as a representative locus standi, as the complainant was a constituent who alleged that she, along with other constituents, had been unlawfully denied the constitutional right to vote unless a by-election was called.

(6) WE, THE JURY… ANALYSING THE ROLE OF JURY SYSTEMS IN RELATION TO JUSTICE AND FAIRNESS

Author: Nickolaus Ng (University of Birmingham)

This article seeks to present the inherent biases of jurors in decision-making, during preevidence presentation, during evidence presentation itself and during deliberations, and concludes that judge-based systems without juries would better serve the goals of fairness and legal consistency, offering a more stable safeguard against prejudice in adjudication. It is not clear what the purpose of this article is in a Singapore context since jury trial has been abolished a long time ago, and is unlikely ever to be revived.

(7) FILLING THE GAPS IN REPRODUCTIVE WRONGS: LOSS OF GENETIC AFFINITY AND ITS POTENTIAL IN UK LAW

Authors: Anni Huang (Singapore Management University), Cheryl Soong (Singapore Management University), Wesley Gordon Harrison (Incoming student at Singapore Management University), Zun Yin Ngo (Incoming student at National University of Singapore)

In this article, the authors examine the decision of the Singapore Court of Appeal in ACB v Thomson Medical Pte Ltd and Others [2017] 1 SLR 918 (“Thomson Medical”) that genetic affinity is an intangible right and loss of it (“LOGA”) is compensable in damages under Singapore law. The authors argue that the Singapore decision is applicable under English law should a similar case arise in the UK, due to their similarity in importance of genetic ties.

The authors also consider other kinds of mishaps in IVF, such as (a) where the mother selects A (not the husband), but gets the sperm of B, LOGA may not be an appropriate as a basis of a claim for damages. Suppose the mother selects CG (a chess grandmaster) as the donor, instead is given the sperm of GC (a Go champion) In such a case, would the LOGA by the mother be compensable? The second type of case is where a chosen donor has no genetic deficiencies or disorders, but the mistakenly substituted donor has some genetic deficiencies, which the mother is unaware of until later in the child’s life. Is there any LOGA by the mother, since the mother’s main objective is to have a healthy donor? What kind of harm has the mother suffered? If the mother suffers mental injury, psychiatric or psychological, from such negligence, what is the measure of damages? The authors conclude by asserting that the courts should be open to reforming the LOGA framework to address these emerging realities of modern reproductive technology, so that deserving claimants are not left without recourse.

Aside from restating how the Court of Appeal came to recognise LOGA as a novel head of claim for damages in tort, the authors have nothing else to say about whether the claim could have been dealt with in a different way that is consistent with logic and social reality. The Court accepted (at [150] of the Judgment) that ABC and her family had suffered anguish, stigma, disconcertment, and embarrassment in their social interactions with friends or other people, because the child’s skin tone was different from that of the parents. She did not say that she had suffered any psychiatric or psychological harm.

What then was the genetic affinity that the Court found that she had lost, and that it was a serious and compensable loss? This is how the Court describe the LOGA:

“127 [ABC’s] desire to have a child of her own, with her Husband, is a desire that is a basic human impulse, and its loss is keenly and deeply felt, even if it is difficult to put into words. Her desire (and therefore her loss) was for “genetic affinity”

128 … the desire for genetic affinity is complex and multi-faceted. It is, at its core, a desire for identity bounded in consanguinity. The ordinary human experience is that parents and children are bound by ties of blood and share physical traits. This fact of biological experience – heredity – carries deep socio-cultural significance. For many, the emotional bond between parent and child is forged in part through a sense of common ancestry and a recognition of commonalities in appearance, temperament, and physical appearance. For yet others, genetic continuity and biological lineage is deeply important to religious and cultural belonging This interest in affinity does not exist only at the bilateral level (between parent and child), but also multilaterally – it affects the parents’ relationship with their extended relations; the child’s relationship with his/her siblings; as well as the family’s relationship with the wider community of which they are a part.

129 … [ABC] has suffered, among other things, a loss of “affinity”, and the chance to have a family structure which comports with her aspirations . As a consequence of what has taken place, the Appellant’s welfare has been detrimentally affected in myriad of significant ways.

135 “[ABC’s] interest in maintaining the integrity of her reproductive plans in this very specific sense – where she has made a conscious decision to have a child with her Husband to maintain an intergenerational genetic link and to preserve “affinity” – is one which the law should recognise and protect. And given that interests are the “positive aspects of damage”, we hold that the damage to [ABC’s] interest in “affinity” is a cognisable injury that should sound in damages.”

It is clear from this description that the person who actually suffered a loss of genetic affinity was the child and not the mother. What ABC lost was a child that did not have the genes of her husband, but only her own and those of a stranger. Such a loss could be traumatic for ABC, and could cause her psychiatric, psychological or something other kind of mental anguish. If for example her husband was of the same race as the substituted donor, the child would probably be born with the same skin colour or tone. In that situation, there might be no social stigma or embarrassment, although the loss of a child with her husband’s genes would still be felt by her.

However, from this perspective, can it be said that the real victim of the mishap was the child, and not the mother? The mother might be able to have another child with her husband’s genes. But the child would forever have the genes of someone who was not her father. She had truly suffered a loss of genetic affinity to her father in that respect. In a traditional conservative Chinese family, what was lost was more than affinity: it was lineage based on her father’s bloodline. Is such loss compensable in law? How is it to be compensated in law, except by plucking a figure from the air?

In Thomson Medical, the Court awarded damages at 30% of upkeep costs. How did that come about? The Court held that damages should be awarded on the basis of the mother’s loss of expectation that she would give birth to a child with her father’s genes, and not those of a stranger. However, this consideration does not tell the Court how to quantify the loss or damage. The Court acknowledged there was no precedent to guide it, this difficulty, and held as follows:

“148 In the circumstances, we consider that we should benchmark the eventual award as a percentage of the financial costs of raising Baby P. Although we have determined that this is not an appropriate case in which to award upkeep costs as such to the Appellant, the financial costs of raising Baby P are not, in our view, wholly irrelevant as, absent such costs, there would be no other criterion or standard by which to assess the quantum of damages that ought to be awarded. This approach would have several advantages. First, to the extent that one of the purposes behind the grant of damages for non-pecuniary loss is to provide solace to the claimant, we consider that an award which is benchmarked against upkeep costs would achieve this purpose. Second, any such award would not be derisory but would instead produce a substantial award that offers “reasonable compensation”. Indeed, we note that such an approach is not wholly without precedent

149 . Our approach of using the latter as a benchmark for assessing the magnitude of the former does not derogate from what we have said about how the obligations of parenthood are incapable of being regarded by the law as loss Whilst it is perhaps not theoretically elegant, the approach of benchmarking the present award against upkeep costs is practical (provided one always bears in mind that the quantum of full upkeep costs is but a benchmark) and it prevents the court from having to pluck a figure out of thin air, so to speak. In any event, a theoretically

elegant result would, in any event, be elusive in the extreme, given the nature and complexities of the issue and the attendant difficulties that arise from such a controversial area of the law.

150 As we have explained above at [102], the award of full upkeep costs would amount to giving the Appellant an indemnity for the costs of raising Baby P. This would not, in our judgment, be appropriate compensation for the loss which has been suffered. However, it is also neither logical nor desirable to award the Appellant a merely nominal sum because to do so would be to make a mockery of the value of the interest at stake. It is clear that the damages to be awarded should therefore lie somewhere between these two extremes. On the issue of precisely where along the spectrum it should fall, the facts and circumstances are of the first importance. In our judgment, it is clear that substantial damages ought to be awarded to the Appellant. Whilst (as we have already noted), the Appellant and her Husband have accepted Baby P as their own, the reality of the situation cannot be denied (see, especially, the anguish, stigma, disconcertment, and embarrassment suffered by the Appellant and her family as expressed in the Appellant’s affidavit (reproduced above at [131] and discussed at [132]–[135])). In the circumstances, we are of the view that the Appellant ought to be awarded 30% of the financial costs of raising Baby P as compensation, which is an amount that, we consider, properly reflects sufficiently the seriousness of the Appellant’s loss and is just, equitable, and proportionate in the circumstances of the case.”

The Court did not explain why it assessed damages at 30% and not some other figure, say 20% or 50%. In other words, the assessment of damages appears to be wholly subjective. Hence, it is not possible for any reasonable person to say that the Court was wrong in any sense of the word, but it is possible to say that in another similar case, the percentage is unlikely to be the same, since the Court did not say that 30% was a conventional sum.

There were two other possible claims that the mother did not seek in Thomson Medical. One would be a refund of the cost of IVF treatment, including hospitalisation costs on the basis of a total failure of consideration since. The other could be for pain and suffering in giving birth to a child which she had not contracted for.

(8) DRAWING THE LINE: FIXING NORMAL BASELINES UNDER ARTICLE 5 UNCLOS

Author: Delaney Lim (University of Oxford)

In this article, the author argues that the orthodox interpretation of Article 5 of the United Nations Convention on the Law of the Sea (‘UNCLOS’) - that the normal baseline is considered ambulatory and recedes with sea-level rise - imposes unfair burdens that low-lying coastal and small island States like Singapore, and that the rules of treaty interpretation under Articles 31 and 32 of the Vienna Convention on the Law of Treaties (‘VCLT’) are applicable to interpret Article 5 to permit States to fix their normal baselines.

The argument is developed as follows: (1) a normative reappraisal of how Article 5; (2) the application of the general rule of interpretation under Article 31(1) VCLT to argue that the normal baseline is defined by reference to a charted line that States are not obliged to update to reflect coastal recession, (3) the application of Article 31(3)(c) VCLT, showing its consistency with the principles that the “land dominates the sea” and that boundaries must be stable; and (4) confirmation of the preceding interpretations by reference to widespread State practice that supports the permissibility of fixing normal baselines.

This article thus submits that the ambulatory interpretation of Article 5 is neither legally required nor normatively desirable in the face of climate change-induced sea-level rise. Instead, it argues that States may lawfully fix their normal baselines – an essential step to preserving legal certainty and ensuring equity for vulnerable coastal States.

Without reference to the cogency of the first three lines of argument, it is interesting to note that in respect of the fourth line of argument, Singapore up to today does not appear to have expressed any concern in any public statement with the effect of Article 5 in relation to fixing her normal baselines. Given her close relationship with the birth of UNCLOS, Singapore would be expected to the first state to raise the problem discussed in this article. Is there a real problem under international law on Article 5?

Having said that, this commentator agrees with the author that an interpretation of Article 5 UNCLOS permitting States to fix their normal baselines (unless international law and practice is clear on this issue) is therefore desirable, and so much the better if it is doctrinally defensible

A state should not lose the size of its territorial sea because of a rise of the sea resulting from climate change caused by industrial nations with vast land areas.

(9) IDENTIFYING AND NAVIGATING THE CONSTITUTIONAL PENUMBRA OF FUNDAMENTAL LIBERTIES IN SINGAPORE.

Authors: Isaac Tan Kah Hoe (University of Oxford), Bonnie Yeo Lu-Anne (University of Oxford)

The authors explore how fundamental liberties guaranteed under the Singapore Constitution can be interpreted more substantively by reference to case law on similar fundamental liberties or rights under the in the US Constitution, and UK’s unwritten constitution.

The first section provides an outline of the general characteristics of Singapore’s approach to judicial review, identified as (a) constitutional supremacy; (b) autochthony; and (c) green light approach. It is not clear to this commentator what the purpose of the outline is. Constitutional supremacy entails that Parliament must not enact any law and the Executive must not do any act inconsistent with the Constitution. Autochthony means that the Singapore courts will develop the legal system and the common law of Singapore with Singapore characteristics. The article does not point out that the green light theory could only apply to judicial review of executive actions, and not legislation because of the doctrine of parliamentary supremacy.

The second section considers the principle of separation of powers and argues since the specific scope of legislative power is not substantively laid down within the Constitution, there exists constitutional penumbras that “provide space for the judiciary to adopt a stronger interpretation of rights without unconstitutionally infringing on legislative power”. The authors say that the concept of constitutional penumbras has not received much attention in court, with the interference by the judiciary in legislative matters taken to be an almost-certain violation of the separation of power. This statement is difficult to understand, since by the term “constitutional penumbras”, the authors refer to the meaning and scope of the fundamental liberties in Articles 9 (“life”, “personal liberty”. and “in accordance with law”), 12 (equality before the law and equal protection of the law) and 14 (“freedom of speech, assembly and association”), 15 (“freedom of religion”), 49 (filling of vacancies in Parliament) and expression. Practically all the constitutional litigation to date have been on the penumbral meanings of the fundamental liberties and other constitutional rights.

Further, the authors argue that there is a considerable penumbra in the interpretation of the separation of powers from the constitution, and that “the laws surrounding the scope of judicial and legislative power are especially vague”. These statements are confusing and not easy to understand, since Articles 38 (legislative power), 23 (executive authority, which implies the existence of a legal power) and 93 (judicial power), as worded, are neither vague nor ambiguous. The legislative power authorises Parliament to make laws. The executive power authorises the Executive to execute them, and the judicial power authorises the courts to adjudicate disputes arising from such laws or executive acts. Each constitutional organ must act within its own sphere of power, and must not intrude into the domain of the other powers, but each of those acts must not be inconsistent with the Constitution.

Because the Constitution is the supreme law, Parliament may not make a law inconsistent with the Constitution. Likewise, the Executive may not act outside the law enacted by Parliament or in contravention of the Constitution. If the court declares a statute inconsistent with the Constitution, the statute is invalid to the extent of its inconsistency under Article 4 (constitutional supremacy). There is no question of the court intruding into the legislative power of Parliament, because under constitutional law, Parliament has no power to enact an unconstitutional law. The authors’ confusion in this regard is discernible from the following statement in another part of the article:

“The law regarding the arbitrary test thus remains open-ended. Nonetheless, Tan Seng Kee shows the constitutional penumbra inherent in rights adjudication. Even in Singapore, the courts recognise that the separation of powers does not present an absolute bar to the infringement of legislative power by the courts, especially when the circumstances are absolutely necessary”.”

The judicial power does not intrude into the legislative power or the executive power in constitutional or administrative law adjudication on the validity of a legislative act, or the legality of an executive act. It is implicit in the separation of powers under the Constitution, the function of the judicial power is check abuse or misuse of the legislative or executive power by Parliament or the Executive, as the case may be.

In not clarifying penumbra approach or its elements, the authors may have made the subject seem more complex, and less easy to understand, than it actually is.

The third section assesses the court’s scope of judicial review of fundamental liberties by reference to both legal positivism (i.e., the validity of a law is determined by its source and not moral content) and natural law (law must have a moral content, and a wicked law is not a law). The authors argue that the legal community would benefit from being able to navigate this constitutional penumbra through an exploration of alternative approaches to constitutional interpretation. Ultimately, the authors favour the positivistic approach for Singapore, given Singapore’s characteristics of judicial review, and also allow judges to avoid making their own moral subjective judgments.

The authors discuss a series of judgments of the courts of various jurisdiction in connection with Articles 9, 12 and 15, from Singapore, the UK, USA, and EU to argue that the fundamental liberties enumerated in the Singapore Constitution can be interpreted more substantively, yet in a calibrated way, including the inevitable use of moral reasoning by the courts to broaden the scope or to the fundamental rights from legislative dilution or executive transgression.

In summary, the authors’ arguments largely favour giving an expansive or liberal interpretation to constitutional rights, and a narrow interpretation to legislative and executive restrictions of constitutional rights. However, the authors also acknowledge that the Court of Appeal said in Jolovan Wham at [33], “In the final analysis, it is imperative to appreciate that a balance must be found between the competing interests at stake ” This commentator does not foresee any rebalancing in the near future that would favour the authors’ position.

(10) ALLIANCING FOR SINGAPORE’S COMPLEX ROAD AND TUNNEL PROJECTS: A BETTER WAY TO BUILD THE NORTH-SOUTH CORRIDOR?

Author:

Joyee Goh (University of Melbourne)

This article discusses a new type of collaborative methodology that has been used in the construction industry in the UK and Australia since the 1990s called “alliance contracting” or “alliancing”, but which has not been used in Singapore. It differs from the traditional EPC contract in that

“[Alliance’ contracting is a project delivery method where all parties, including owners, contractors, and sometimes even designers and consultants, form an

alliance to work collaboratively. This approach prioritizes shared goals, open communication, and risk-sharing among all parties. The alliance agreement is drafted and structured to avoid “win-lose” scenarios, foster “win-win” approaches, and typically includes pain and gain-sharing mechanisms.”

[https://constructionfront.com/alliance-contract/]

This article is useful for contractors, but not lawyers, and therefore a review is unnecessary.

Concluding Remarks

This year’s issue of the SCLR could have benefitted from more subject matter, and even more areas of law. The new issue should contain a larger spread of articles on the development of private law in Singapore, although it is to be expected that student interest will continue to focus on public law issues. Still, I have learned much and enjoyed reading some of the articles. I thank the editorial board once again for giving me the opportunity to write the Foreword to this year’s issue of the SCLR.

Chan Sek Keong

Patron

16 August 2025

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MAKING ‘SUBSTANTIVE LEGITIMATE

EXPECTATION’ WORKS – AN ANALYSIS OF THE NORMATIVE CONCERNS OF THE DOCTRINE IN SINGAPORE AND PROPOSING A DEFERENCEMODULATED MODEL OF SUBSTANTIVE LEGITIMATE EXPECTATION

Kai Zhen Tek*

Chan Sek Keong Award for Best Article

Abstract

The Singapore Court of Appeal recognised the ground of substantive legitimate expectation (“SLE”) in Tan Seng Kee v Attorney-General [2022] SGCA 16 (“Tan Seng Kee”), despite casting doubt on its applicability in the earlier case of SGB Starkstrom Pte Ltd v Commissioner of Labour [2016] SGCA 27 (“Starkstrom”). How were the normative concerns highlighted in Starkstrom overcome? What is the normative basis of recognising the doctrine in the Singapore constitutional setting? This article sets out to scrutinise the Court of Appeal’s reasoning in Tan Seng Kee and argues that the Court engaged in preliminary understanding of how the SLE doctrine operates, leaving important questions unanswered. In view of conflicting dicta regarding the normative impact of recognising the doctrine on important constitutional principles like the separation of powers, in order to render the doctrine more palatable, the Court exercised a large degree of deference. While the outcome may be correct in the present case, it is argued that the lack of discussion on why deference is displayed obscures key principles underlying the doctrine of SLE. Focusing on the separation of powers (“SOP”) principle and the merits/review distinction, it is argued that recognising SLE does not necessarily violate SOP nor the merits/review distinction if modulated by deference with a principled basis. Good administration is also identified as the most appropriate basis for the

* University of Cambridge, Trinity Hall, BA (Hons) In Law, Class of 2026 I am profoundly grateful to the reviewers from the editorial team for their comments on earlier drafts of this article. All errors that remain are my own. E-mail for correspondence: kztek01@gmail.com.

recognition of SLE. The article ends with a discussion of the doctrinal test of the doctrine, focusing on the elements of detrimental reliance and reasonable reliance which are missing in the English jurisprudence.

I: Introduction

Despite the concerns that recognising the doctrine of “substantive legitimate expectation” (“SLE”) may allow the courts to engage in substantive reviews of the administrator’s discretion 1 , the English administrative law has long recognised the validity of substantive legitimate expectation in R v Devon Health Authority ex parte Coughlan2, on the basis that the degree of unfairness caused to the applicant similarly “amount[s] to an abuse of power” where the “legitimate expectation of a benefit which is substantive”. 3 However, Singapore has been hesitant in receiving the doctrine4 , citing similar concerns reflected in earlier English cases such as the need to adhere to the distinction between review and appeal5, and the compatibility with important constitutional principles like separation of power.6 Decided before Starkstrom, the possibility of receiving the doctrine reached a “high point”7 in the Singapore High Court case of Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority (“Chiu Teng”) 8 which declared that substantive legitimate expectations ought to form an independent ground of judicial review of administrative action.9 In a significant turn of event, the Court of Appeal utilised the doctrine to recognise the legal effects of statements made by the Attorney-General regarding the non-enforceability of Section 377A of the Panel Code in the case of Tan Seng

1 Such concerns are best exemplified by Hirst LJ’s dictum in R v Secretary of State for the Home Department, ex parte Hargreaves [1997] 1 All ER 397 at 921: “Mr. Beloff characterised Sedley J.'s approach [recognising SLE] as heresy, and in my judgment he was right to do so” and Pill LJ at 924 “The claim to a broader power to judge the fairness of a decision of substance, which I understand Sedley J. to be making in Reg. v. Ministry of Agriculture, Fisheries and Food, Ex parte Hamble (Offshore) Fisheries Ltd. [1995] 2 All E.R. 714 , is in my view wrong in principle.”

2 [2000] 2 WLR 622.

3 Ex parte Hamble (n 3) 645E

4 Court of Appeal (Singapore’s highest appellate court)’s ruling in SGB Starkstrom Pte Ltd v Commissioner of Labour (“Starkstrom”) [2016] 3 SLR 598

5 Starkstrom (n5) [56] – [58]

6 Starkstrom (n5) [59], [62]

7 Kenny Chng, ‘An uncertain future for substantive legitimate expectations in Singapore: SGB Starkstrom Pte Ltd v Commissioner of Labour’ [2018] PL 192.

8 Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority [2013] SGHC 262.

9 Chiu Teng (n9) [112] – [119]

Kee v Attorney-General [2022] SGCA16 (“Tan Seng Kee”), concerning a constitutional challenge to Section 377A of Singapore’s Penal code. 10

In view of recent developments, this article proceeds in Part II to analyse the key cases in Singapore that set out the doctrinal law on legitimate expectation and the concerns expressed by the courts in receiving the doctrine. It is observed that despite differences in the fundamental constitutional arrangements and “autochthony”11 or doctrinal divergences between the English and Singapore administrative law 12 , there are similar normative concerns surrounding the doctrine of legitimate expectation. By analysing each of the three significant cases that build on the doctrine of legitimate expectation, I critique the Singapore courts’ reasoning for being cautious in receiving the doctrine.

In Part III, I analyse the application of the doctrine in the latest Court of Appeal case in Tan Seng Kee and argue that its application is consistent with the “paradigm”13 cases of legitimate expectation in English administrative law. Focusing on (i) the SOP principles, referencing the distinction between ‘pure’ versus ‘partial’ notion of the SOP principle and the concept of “constructive breaches”; and (ii) the merits/ review distinction in judicial review, I defend the SLE doctrine and argue that recognising it does not necessarily involve violating these principles, which is also the Court’s position in Tan Seng Kee. However, in that case, the judicial reasoning in arriving at these correct conclusions is slightly flawed and left important questions unanswered – both doctrinally and normatively This results in an awkward position where though the SLE doctrine is recognised in the exceptional circumstances, it has unclear normative basis and doctrinal test. Though immaterial for the current ruling, the strength of the protection consequently offered to the appellants ought to be higher Referencing Elliott’s

10 [117]

11 Chuan Limin, ‘Autochthony and Conformity in Singapore Administrative Law’, [2023] 35 SacLJ 1.

12 Indeed, Chuan argues that “[a]”dministrative law is a unique field of law in so far as sensitivity to local context, local institutional peculiarities and socio-political values are critical to its functionalism within the modern administrative state”. This is supported by Chan Sek Keong CJ in an extrajudicial lecture where he stated “[o]ur ultimate objective is to build up a large body of local jurisprudence, so that local decisions can be cited first instead of English decisions”.

13 Jason Ne Varuhas, ‘In Search of a Doctrine: Mapping the Law of Legitimate Expectations’ in Matthew Groves and Greg Weeks (eds), Legitimate Expectations in the Common Law World (Bloomsbury Publishing 2017)

works14 on deference and the SLE doctrine, I argue that greater recognition can be given to the doctrine if the courts apply a context-sensitive analysis as modulated by deference which is justified on a principled basis.

In Part IV, I take a closer look at the doctrinal test set out by the court for SLE, focusing on the two elements which do not appear in English jurisprudence – detrimental reliance and reasonable reliance.

II: The overview of key cases relating to substantive legitimate expectation in Singapore

2.1: Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority

The brief facts of Chiu Teng relate to whether the circulars published by the Singapore Land Authority (“SLA”) setting out the calculation method of a differential premium for increasing the permissible use of land (as contracted for in state leases) will be calculated constitute sufficient representation for a legitimate expectation to arise. 15 While the Court held that the statements published on the SLA website are qualified due to the Terms of Use 16 and hence did not amount to unequivocal representations, the circulars “did contain unequivocal and unqualified statements”.17 As the Court held that the doctrine of legitimate expectation “should be recognised in our law as a stand-alone head of judicial review”18, the Court further set out a doctrinal test and held that the applicant had relied on the representations and suffered detriment. 19 The element which was not satisfied is the reasonableness of relying on the representation given that the applicant is an “experienced property developer”. 20

14 Mark Elliott, ‘From Heresy to Orthodoxy: Substantive Legitimate Expectations in English Public Law’ in Groves and Weeks (eds), Legitimate Expectations in the Common Law World (Hart Publishing 2016)

15 At [6]. Indeed, when read in context where the SLA referred to a “transparent system of determination of differential premium” (at [1] of the circular published in 2000) which aims to “provide greater certainty to landowners”, it seems like there is indeed unequivocal representations made, as the Court has found.

16 Chiu Teng (n9) [120], which includes a “wider disclaimer”

17 Chiu Teng (n9) [122]

18 Chiu Teng (n9) [119].

19 Chiu Teng (n9) [121]-[124].

20 Chiu Teng (n9) [125]-[129]

Two crucial points are worthy of analysis: 1. How did the Judge weigh the arguments against recognising SLE as an independent ground of review; and 2. The doctrinal test set out, and how its elements differ from the UK jurisprudence?

First, the Judge countered the submission that recognising the doctrine may violate the separation of powers principle from a precedent point-of-view. It is emphasised that such concerns are not noted in the majority’s judgment in Australia in Ex p Lam. 21 As a matter of constitutional principles, the submission that Singapore’s and Australia’s written constitutions “demarcate the powers” and therefore, allowing the judiciary to enforce substantive legitimate expectation would be “tantamount to judicial overreach” is also rejected 22 since the UK constitution also recognises the separation of powers 23 , and “upholding …legitimate expectations is eminently within the powers of the judiciary."24 The need for the judiciary to weigh the public interests in resiling from the representation against the private interests of the representation being satisfied can be done without “arrogating to itself the unconstitutional position of being a super-legislature or a super-executive.”25

On the other hand, though not explicit, the Court seems to recognise the normative rationale of recognising SLE as the principles of good administration.26 This is aligned with the recent English jurisprudence which points to the principles of “good administration”27 as grounding the concept of legitimate expectation. This is re-emphasised in the latest Supreme Court jurisprudence on the matter in Re Finucane’s Application for Judicial Review28 Indeed, this is reflected at [112] of Chiu Teng where the Court posed the question:

21 Chiu Teng (n9) [108]

22 Chiu Teng (n9) [109].

23 The Singapore Court citing Lord Keith’s dictum in Regina v Secretary of State for the Home Department; ex parte Fire Brigades Union [1995] 2 AC 513

24 Chiu Teng (n9) [113]

25 ibid [113].

26 As recognised by the Court of Appeal in Tan Seng Kee at [126], though the phrase “principles of good administration” was not explicitly referred to

27 R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363

28 [2019] UKSC 7: “A recurring theme of many of the judgments in this field is that the substantive legitimate expectation principle is underpinned by the requirements of good administration”

“If private individuals are expected to fulfil what they have promised, why should a public authority be permitted to renege on its promises or ignore representations made by it?”

However, as Jhaveri argues29 , it is indeed unclear what the normative foundation of SLE is. This is best evident by the lack of guidance for the judicial balancing test, and for the “choice of priorities and principles” that are in conflict. On the one hand, citing from Bibi30 , Jhaveri highlights that there is “value in holding authorities to promises which they have made, thus upholding responsible public administration and allowing people to plan their lives sensibly”. On the other hand, this is balanced with the need to ensure flexibility and to preserve the administrative authority conferred by parliament for “the possibility in the future of coming to different conclusions”.31 The key question here is “who makes the choice of priorities and what principles are to be followed” (emphasis in original). The normative critique that it is not for the judiciary to be answering these questions on the choices of priorities would be more convincing if the Court analysed to the doctrine to this level of details. Put differently, the articulation as to why it is not for the courts specifically to perform this weighing test could have been more precise, given the possible abuse of powers by the executive in resiling from clear, unequivocal promise and the lack of adequate considerations of the harm suffered by relying on the promise.

Indeed, citing Forsyth who argues that "[p]ublic trust in the government should not be left unprotected" 32 , Chen argues that the need to uphold trust in public administration underpinning the doctrine “resonate with the governmental ethos in Singapore.”33

29 Swati Jhaveri, ‘The doctrine of substantive legitimate expectations: the significance of ChiuTeng@Kallang Pte Ltd v Singapore Land Authority’ [2016] PL 1, 4: Jhaveri argues that it is “[i]t is not clear from Chiu Teng, why administrative law needs to protect substantive legitimate expectations created by administrative decisions and neither is the rationale for recognising the doctrine in Singapore”.

30 R(Bibi) v Newham LBC [2002] 1 WLR 237

31 Swati Jhaveri, ‘The doctrine of substantive legitimate expectations: the significance of ChiuTeng@Kallang Pte Ltd v Singapore Land Authority’ [2016] PL 1, 4

32 Christopher Forsyth, ‘The Provenance and Protection of Legitimate Expectations’ (1988) 47 CLJ 238, 239

33 Zhida Chen, Substantive Legitimate Expectations in Singapore Administrative Law: Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority [2013] SGHC 262, 26 SACLJ 237 (March 2014) at [12], citing Lee Hsien Loong v Singapore Democratic Party [2009] 1SLR(R) 642 at [102]-[103].

Second, it is noteworthy that the formulation of the doctrinal test for legitimate expectation in Chiu Teng differs slightly and includes more elements to be satisfied as compared to English administrative law.

The UK test for substantive legitimate expectation is articulated in Coughlan. There are two stages to the analysis:

‘Where the court considers that a lawful promise or practice has induced a legitimate expectation ... the court will ... decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest.’ (emphasis added)

Put differently, the applicant has to establish a representation that is “clear, unambiguous and devoid of relevant qualification”.

34 An example is the email from the General Medical Council, which said the following: the Council ‘accepts the primary medical degree awarded from International University of Health, St Kitts for the purposes of registration’ 35 Next, the court ‘has to decide for itself whether there is a sufficient overriding interest to justify a departure from what has been previously promised”.36

While these two elements are similarly presented in the test in Chiu Teng (in part a and f), the formulation also required that “it was reasonable for [them] to rely on the statement or representation in the circumstances of [their] case” (in part d); and “[they] did rely on the statement or representation and that [they] suffered a detriment as a result” (in part e). These two elements resulted in the Court holding that “the irresistible inference is that the applicant ought to have known” better than to rely on the statements made.37 Hence, the application failed.

34 R. v. IRC, ex parte MFK Underwriting [1990] 1 WLR 1545

35 [2013] EWCA Civ 327 (“Patel”)

36 Patel, drawing on Coughlan and R (Bhatt) v Independent Assessor; R (Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755 (“Bhatt Murphy”).

37 Chiu Teng (n9) [128]

2.2: SGB Starkstrom Pte Ltd v Commissioner of Labour

Briefly, the facts of the case were that the Mr Rodney Tan (the appointed deputy under the Mental Capacity Act for Mr Tan Yun Yeow who suffered serious injuries which left him mentally incapacitated) first claimed for statutory compensation under the Work Injury Compensation Act (Cap 354, 2009 Rev Ed) (“WICA”). This was accepted by the Commissioner of Labour. However, Mr Rodney Tan subsequently changed his mind and wished to commence a common law action for damages. Pursuant to s33(2)(a) of the WICA, the common law claim and the statutory claim cannot be brought together. Hence, Mr Rodney Tan commenced judicial review proceedings to quash the Commissioner’s initial decision on the basis that Mr Rodney Tan was not authorised at the material time to make the claim on his brother’s behalf. The High Court held that the initial decision was indeed invalid. Now, the appellant (the defendants of Mr Rodney Tan’s common law claim) wishes to appeal against a High Court decision by arguing that they had a substantive legitimate expectation that the statutory claim assessed by the Commissioner was valid and that it had discharged its liability to the injured employee.

On first glance, this is not the pattern of facts that usually give rise to a claim in substantive legitimate expectation: 1. The real contest is essentially between two individuals as the appellant is the defendants of the common law claim, as recognised by the Court.38 There is nothing to do with the Commissioner. 2. The assessment by the Commissioner - which was submitted to be a representation – was made ultra vires, perhaps vitiated by an error of law. The Court reasoned that this meant there is no actionable representation as the assessment is not “prospective” about how the Commissioner’s power will be exercised in the future. 39

It is argued that while the Court reached the right outcome, the neatest way of responding is not discussing whether there is actionable representation, but using the concept of ultra vires legitimate expectation to explain why the assessment cannot be upheld, applying the orthodoxy

38 Starkstrom (n5) [43]: “This was neither a case about regulating a public authority in the carriage of its functions”.

39 Starkstrom (n5) [47]

in Anisminic. 40 If the determination by the Commissioner does not have legal basis to issue the Notice of Assessment which is therefore vitiated by an error of law 41, there can be no legitimate expectation arising from that decision. The position that ultra-vires promises are not enforceable has long been recognised in English Administrative law42 on the basis that it is to prevent the “collapse of the ultra vires doctrine”.43 Indeed, this seems to be referenced later in the reasoning. 44

This line of analysis is preferred as it better caters to the submission made by the appellant that they are prejudiced by having to “defend the common law claim after having ‘closed its books’”.45 The judicial rejection of the claim is based on the fact that there is little prejudice caused since the Employee may fail in the common law claim. However, this ignores the point submitted – that nonetheless the defendants may have to undergo the process of defending the claim. It is therefore submitted that a better response, which is strongly supported by the judicial reasoning already presented, is to utilise the second-actor theory:

While administrative law orthodoxy stipulates that legally void decision cannot have legal effect, and should not have legal effects on third party46 , English law recognises that sometimes it may cause administrative chaos if a decision that many third parties have relied on turned

40 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 The appellant’s flawed logic of applying SLE is apparent when we consider the facts of Anisminic. There cannot be a substantive legitimate expectation of a purported, legally void decision by the Compensation Tribunal.

41 As the Court held that the relevant legislation (WICA) did not establish a regime for Mr Rodney Tan to make the claim at [33].

42 Western Fish Products v Penwith District Council [1981] 2 All ER 204; Rowland v Environment Agency [2005] Ch 1

43 May LJ in Rowland v Environment Agency citing Lord Greene MR in Minister of Agriculture and Fisheries v Hulkin; also citing Craig: “a representation by a public authority, which the public authority has no power to make, is not binding and cannot sustain a legitimate expectation or an estoppel due to hardship on individual” (emphasis added)

44 Starkstrom (n5) [52]

45 Starkstrom (n5) [53].

46 F. Hoffmann-la Roche & Co. A.G. and Others Appellants v Secretary of State for Trade and Industry Respondent [1975] AC 295 where it was held that once a decision is held to be ultra vires, it is legally invalid: “[i]t would, however, be inconsistent with the doctrine of ultra vires as it has been developed in English law as a means of controlling abuse of power by the executive arm of government if the judgment of a court in proceedings properly constituted that a statutory instrument was ultra vires were to have any lesser consequence in law than to render the instrument incapable of ever having had any legal effect upon the rights or duties of the parties to the proceedings”.

out to be legally null and void. 47 Hence, Forsyth theorised the second actor theory to resolve the tension between ensuring strict adherence to the ultra vires theory (which would render legally invalid decisions a nullity) and allowing some degree of flexibility in terms of allowing decisions to enjoy a presumption of legal validity. Indeed, Forsyth’s solution nicely resolves the tension that the Singapore court is facing. Rather than applying substantive legitimate expectation, the court should analyse whether the respondent (which is the second actor relying on the administrative decision by the Commissioner) has the legal authority to bring the action under the WICA, which is essentially what the Court has first set out to adjudicate. 48 Since there is no explicit language that allows WICA to establish a different regime from the Mental Capacity Act, it is right that notwithstanding the prejudice caused, the void action cannot be rendered valid. Thus, while the outcome arrived at by Court is correct, a better explanation may be offered that responds to the arguments put forth by the parties.

The desperate attempt by the appellant to prevent the respondent to bring a claim for damages at common law is opportunistic; it is not surprising that the weak submission utilising legitimate expectation is rejected. 49 This renders Starkstrom a poor test case for examining whether SLE should be an independent ground of judicial review in Singapore. Indeed, this is recognised by the Court 50 that whether to receive the doctrine of SLE is better deferred to a decision where the ground would be material to the outcome. It must therefore be noted that the Court’s criticism against the doctrine in this case is merely obiter dicta: the Court emphasised that it is not deciding the fate of the doctrine in Singapore law. 51

Nonetheless, it is important to understand some of the normative reasons emphasised by the Court which lead to the conclusion that SLE may face some difficulties before being received in the Singapore administrative law:

47 See Forsyth, Christopher F., The Rock and the Sand: Jurisdiction and Remedial Discretion (June 28, 2013). Judicial Review (2013), University of Cambridge Faculty of Law Research Paper No. 31/2013, Available at SSRN: https://ssrn.com/abstract=2317277 or http://dx.doi.org/10.2139/ssrn.2317277

48 Starkstrom (n5) [25], [27], [33]

49 Starkstrom (n5) [47]: “These assessments might well have been within the scope of the duties which the Commissioner had to carry out; but this was not an undertaking as to what the Commissioner would or would not do.”

50 Starkstrom (n5) [59]

51 Starkstrom (n5) [41]: “as we made clear at the time we dismissed the present appeal, we neither affirm nor overrule Chiu Teng because it is not necessary for us to decide this”.

1) The review versus appeal distinction points to limited judicial intervention through judicial review, since “judicial review in Singapore has traditionally been limited to a review of the decision-making process, not the merits of the decision”.

52 Accepting SLE would therefore run the risk of expanding the scope of judicial review beyond the traditional ambit 53 to include merits review which is necessitated by the judicial balance of private interest against public interest.

2) Another important principle which is thought to be violated is the constitutional doctrine of separation of powers. The judiciary’s task is “limited to reviewing the legality of administrative action” (emphasis in original). 54 Citing Coughlan, the Court held that SLE involves the weighing of public interest invoked by the public authority against the applicant’s private interest, which is contrary to separation of powers.

3) Parliamentary intention is also upheld as the statutes vest “certain powers in the Executive” (emphasis in original). 55

4) There is also the issue of the institutional competence of judges scrutinising decisions laden with policy issues that call for “polycentric political considerations”56 and affect third parties.57 The crux of the issue, the Court goes on to identify, is with “which body should decide whether the particular expectation” (emphasis in original) should be upheld?

5) There are other, less controversial, alternatives to recognising the doctrine, such as requiring the public authority to explain why it considered that public interest necessitated an overruling of party’s legitimate expectations, following which the

52 Starkstrom (n5) [56]

53 Starkstrom (n5) [59] and [62] – SLE “entail[s] a more searching scrutiny of executive action, beyond what is currently contemplated under the framework of irrationality, illegality and procedural impropriety”.

54 Starkstrom (n5) [58a]

55 Starkstrom (n5) [58b].

56 Starkstrom (n5) [58c].

57 Starkstrom (n5) [62]

reasons could be reviewed based on illegality, rationality and procedural fairness.

58

It is briefly noted that some of the concerns against recognising SLE have been held in Chiu Teng to be outweighed by the normative appeal of recognising the doctrine, such as the separation of powers doctrine. Other concerns are further reflected in the subsequent case of Tan Seng Kee A quick comment on the last point would be that a key doctrinal trait of the doctrine of SLE that differentiates it from the other grounds of review like rationality is that it is for the courts to take a primary judgment, whereas for the Wednesbury review, it is for the administrators to make a primary judgment “as to whether the particular competing public interest justifies the particular restriction imposed”.59 Hence, academics have argued that where a promise gives rise to a legitimate expectation, “the relevant expectation is not one that the authority will follow a procedure consonant with ordinary requirements of fairness. Rather, the expectation is one that the authority will adopt the promised procedure”. 60 Therefore, it is unlikely that alternatives grounds of review can adequately plug the gap in the current law and advance the goal of promoting principles of good administration.

2.3: Tan Seng Kee v Attorney-General

The case concerns the constitutional challenge to s377A of the Penal Code, which criminalises homosexual acts between men regardless of whether such acts are committed in public or private. 61 In a surprising turn of event, given the Attorney-General’s representation of the general policy that s377A offences will not be prosecuted when the conduct in question was between two consenting adult men in a private place, the Court of Appeal recognised the exceptional circumstances that called for “a limited recognition of the doctrine of substantive legitimate expectations”.62 Therefore, the constitutional challenge failed because the appellants

58 The grounds of judicial review recognised in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; [1984] 3 WLR 1174.

59 Lord Bridge in Ex parte Brind [1991] UKHL 4

60 Jason Ne Varuhas, ‘In Search of a Doctrine: Mapping the Law of Legitimate Expectations’ in Matthew Groves and Greg Weeks (eds), Legitimate Expectations in the Common Law World (Hart Publishing 2017).

61 Penal Code 2020 Revised Edition s.377A: "Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years".

62 Tan Seng Kee v Attorney-General [2022] SGCA 16 [117]

do not face “threat of any violation of their rights under Arts 9, 12 and 14” and hence does not have standing to mount the constitutional challenge. 63

In terms of whether there is indeed an actionable representation made by the AGC, Chng argues that the statements made in 2018 “suggests that [the AG] did not intend to make any such representation as a statement of his intention for future conduct” (emphasis in original). 64 Rather, the statements were made to assert the freedom of the AG’s prosecutorial discretion.65 If the statement is indeed read in context, and applying the doctrinal test of SLE as set out in Chiu Teng, it can be questioned whether any purported reliance on the statements will be reasonable. This raises two possibilities: the Court was too hasty in concluding that there is an actionable representation, or the reasonableness reliance element is not part of the doctrinal test in Singapore, modifying the framework as set out in Chiu Teng.

However, the factual issues aside, the key points of interests include how the courts weigh the normative concerns surrounding recognising the doctrine as set out previously:

1) Separation of powers – applying the doctrine to recognise the balance to preserve the legislative status quo of not repealing s377A in a “vexed area of socio-political policy” and the policy of non-enforcement by the AG does not violate SLE since the courts did not “review the substantive merits of the political package”.66 It is emphasised that the holding “would not constrain any future legislative or executive action regarding s377A”. Hence, the Court thought that the decision for limited recognition does not “offend the doctrine of the separation of powers.” 67

2) On the other hand, the reasons suggesting that the doctrine ought to be recognised include: “the grave threat of prosecution and the attendant deprivation of liberty”

63 Tan Seng Kee (n63) [153]

64 Kenny Chng, ‘An unexpected development of legitimate expectations in Singapore - Tan Seng Kee v AttorneyGeneral [2022] SGCA 16’, (2023) PL 21

65 Referring to the title of the public statement: "Government has not removed or restricted prosecutorial discretion for section 377A, Public Prosecutor retains full prosecutorial discretion".

66 Tan Seng Kee (n63) [135].

67 Tan Seng Kee (n63) [135]

that the individuals will be exposed to if the AG’s representation is not given legal effect.68

Admittedly, cross-referencing the normative worries raised by the Court in Starkstrom regarding receiving the doctrine of SLE, giving legal effect to the representations made by the public authorities and the political compromise struck by Parliament does not seem to require the Court to review “the substantive merits executive action”. The notion of reviewing the merits of decisions by the administrator needs to be unpacked. The Court seems to assume that 1. deferring to the administrator’s assessment and not constraining the prosecutorial discretion of the AGC and Parliament’s ability to change the position in the future would mitigate the normative dangers of incorporating SLE into Singapore administrative law. While the outcome seems to be somewhat correct, the judicial reasoning is not unproblematic. Some assumptions need to be challenged:

1) Why do different judges come to different conclusion in terms of whether the doctrine of the SOP is violated by SLE? What is the assumed definition of SOP that different judges utilise? Is it a logical necessity that SLE infringes the principle of SOP, and if not, how can the two concepts be reconciled?

2) If English cases regarding SLE differentiates the ground from Wednesbury review because it allows the judiciary, rather than the administrator, to be taking a primary judgment the balancing test69 , is it even possible for there to be deference to the authorities when SLE is recognised as a ground of judicial review?

In brief, I argue that there is no apparent conflict between the SOP doctrine and SLE. As Tay Yong Kwang J held in Chiu Teng, a key principle of English administrative law is the SOP and yet SLE is a well-established ground of review. I argue that while the Court of Appeal is broadly on the right track in Tan Seng Kee in explaining why SOP is not a bar to incorporating SLE, its reasoning is underinclusive and to use the doctrine of SLE would necessitate greater protection offered to appellants. It is also wrong to classify the case as SLE arising from policy, when the

68 Tan Seng Kee (n63) [133].

69 See footnote 37 and 61

facts are more akin to a promise case of SLE. While these necessitate greater judicial scrutiny by the courts, it is not a logical corollary that the merits/legality distinction will necessarily be eroded. Referencing Elliott’s model of SLE modulated with deference, I argue that the normative concerns expressed by the Court in Starkstrom can be well mitigated when deference is exercised in a principled manner.

Hence, Part III takes the two questions outlined above in turn.

III: Examining the normative arguments against incorporating SLE and proposing a deference-modulated doctrine that fits with constitutional orthodoxy

3.1: Separation of powers does not conflict with SLE

It is interesting to see judges and academics70 arriving at different outcomes in terms of whether the doctrine of separation of powers will be violated if SLE is recognised in the three cases above. I argue that this shows that the doctrine demands further analysis and unpacking; throwing the term around obscures rather than facilitates analysis.

In this regard, the distinction between the pure versus partial doctrine of separation of powers71 is instructive. The former suggests that the role of each individual branch of the State should strictly be separate in terms of the exercise of power, function as well as membership. For instance, members of the parliament should not overlap with members of the executive. Given the fusion of Members of Parliament with the executive, it is clear that the Westminster style of parliament does not conform to the strict, pure notion of separation of powers. Indeed, the notion paradoxically undermines the objective of guarding against abuses of power,72 since the concentration of power along the functional and membership lines allows for abuses of power rather than prevent it.

Hence, the partial notion of the separation of power is much preferred: the functions and the exercise of powers of the various branches can and should overlap insofar as that aids the

70 Kenny Chng, ‘An unexpected development of legitimate expectations in Singapore - Tan Seng Kee v AttorneyGeneral [2022] SGCA 16’, (2023) PL 21, 25.

71 Eric Barendt, An Introduction to Constitutional Law (OUP 1998) 15.

72 N W Barber, The United Kingdom Constitution: An Introduction, (Oxford University Press, 2021)

achievement of the ultimate objective. 73 This objective can be split into the negative goal of minimising the risks of abuse of power; and the positive goal of concentrating on achieving the beneficial things by allowing the institution best capable of discharging the responsibility to perform the job This gives rise to the notion of constructive breaches, and an example is the presidential power of legislative override in the US subject to the possibility of reversal by a legislative super-majority, which creates a balance of power between the executive and legislative. 74 Therefore, it is argued that the separation of powers doctrine cannot be viewed as an end in itself; whether potential breaches may be ideal turn on its nature and whether it is constructive or destructive. Hence, the Court in Chiu Teng’s argument that recognising SLE does not necessarily violate the SOP principles is preferred. Where the executive abuses the power to resile from earlier unequivocal promises, subverting the principles of good administration, it is precisely the courts’ constitutional role to prevent such abuse of powers. Hence, the argument that accepting SLE necessarily violates SOP ought to be rejected.75

Another argument against the incorporation of the SLE doctrine is that it is not the role of courts to be the first line of defence against “administrative abuses of power”, “instead, control can and should come internally from Parliament and the Executive itself. 76 This line of argument leverages Harlow and Rawlings’ conceptualisation of the “green light” versus “red light” approach in administrative law and leads to the conclusion that “the courts should play a supporting role in promoting good governance by articulating clear rules and principles by which the Government can conform to the rule of law”.77

However, is it unequivocal that under the green-light theory, the courts cannot encourage good administration through requiring the administrators to honour the promise when it would

73 A partial separation ‘does not require that only one institution exercises a particular function of government’. Stanton and Prescott, Public Law (3rd Edition) (OUP 2022), 67. See further, Paul O Carrese, The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism (Chicago: University of Chicago Press, 2003).

74 N W Barber, The United Kingdom Constitution: An Introduction, (Oxford University Press, 2021)

75 Chng is right to point out that recognising substantive legitimate expectation “does not inevitably lead to wideranging merits review”. He pins the concern of the Court on the fact that the doctrine is nascent, and critiqued that with “proper basis” and “careful drawing of principled boundaries”, “acceptance of the doctrine does not necessarily entail contravention of the separation of powers principle”.

76 Chan Sek Keong CJ in an extra-judicial lecture at Singapore Management University in 2010

77 Chan Sek Keong CJ, "Judicial Review From Angst to Empathy" (2010) 22 Singapore Academy of Law Journal.469, at [29]-[30]. The Singapore Court of Appeal has accepted the green and red-light theories as useful analytical tools in Jeyaretnam Kenneth Andrew v Attorney-General [2014] 1 SLR 345

amount to an abuse of process to resile from the representation? In describing the green-light approach, Chan Sek Keong CJ envisioned that the courts should “play a supporting role by articulating clear rules and principles”.78 Enforcing substantive legitimate expectation does not necessarily contravene this approach.

Indeed, in Harlow and Rawlings’ description of the green-light theory, the works of the French jurist - Léon Duguit – was referenced.79 In Duguit’s theory, administrative law limited state action “through the notion that the state can act only in the public interest and for the public good” 80 , and that the “administrative courts pronounce on the legality of administrative action.”81 Administrative judges taking a primary decision as to how the balance of fairness ought to be struck does not ipso facto render the doctrine of SLE contrary to the green-light theory, as Duguit suggests. In fact, a strong case can be built for the proposition that if the normative underpinnings of the SLE doctrine is the promotion of good administration, it is very much aligned with the principles of the green-light approach. Chng argues that recognising SLE “can play an important role in setting norms of good administration” and “redefine judicial review as a collaborative mechanism for branches of government to formulate principles of good governance together”, which is the non-adversarial relationship preferred by the judiciary in Singapore. 82

It is also unclear why enforcing a substantive legitimate expectation would necessarily pitch the judiciary against the executive, especially in the context that the relationship between the judiciary and executive in the UK Constitutional arrangement similarly focuses on

78 “Chan Sek Keong CJ, "Judicial Review From Angst to Empathy" (2010) 22 Singapore Academy of Law Journal 469, [29]

79 Harlow and Rawlings, Law and Administration (CUP 2009) Page 33, which refers to Duguit’s main works Traité du droit constitutionnel, 5 vols. (1911) and Les transformations du droit public (1913), tr.

80 ibid, 34.

81 ibid, 35.

82 Sundaresh Menon, 'The Rule of Law: The Path to Exceptionalism' (2016) 28 SAcLJ 413

collaboration83, which local academics believe is also the relationship between the Singapore judiciary and executive. 84

While this outcome seems to align with the outcome in Tan Seng Kee, it is argued that the judicial reasoning in the case relating to SOP is slightly different. It is held that there is no violation of SOP because the Court did not perform a merits review. However, the UK case laws suggest that what is unique about the doctrine of SLE as compared to the substantive review in Wednesbury is that it is for the court to take a primary judgment of whether there is sufficient overriding interest “justify a departure from what has been previously promised” 85 Therefore, the Court in Tan Seng Kee could have gone further: even if SLE is applied and the court took a primary view of the balancing exercise, it does not ipso facto suggest that the SOP principle is breached. If the overlap in function between the judiciary and legislature is to advance the goal of good administration or the prevention of abuse of power, such crossing of boundary is in fact permissible and justiciable In this regard, the normative basis identified by the UK courts which underpin SLE – that of good administration – clearly shows that the potential breach of SOP is a constructive one. The breaches of SOP allow for the ultimate goal of the prevention of abuses of power to be achieved.

Consequentially, the strength of protection offered to the appellants in requiring the public authorities to give weight to SLE in cases whereby there is future change of policy may be stronger. A key reasoning as to how the notion of the SLE does not undermine SOP is that the Court held that the public authorities “cannot be prevented from changing that position in the

83 N W Barber, The United Kingdom Constitution: An Introduction, (Oxford University Press, 2021). Barber describes the SOP doctrine as a test of suitability: “SoP calls for creation, for division, and for unity”. This cooperative model has the common goal whereby the three branches of state undertake different tasks, but these are oriented towards a shared overarching goal. They also cater to different people: Carolan and Waldron argue different branches of state are sensitive to different groups of reasons that apply to state action; hence they serve to combine these partial perspectives into a coherent whole

84 Chng, An uncertain future for substantive legitimate expectations in Singapore: SGB Starkstrom Pte Ltd v Commissioner of Labour, PL 2018, Apr, 192-201

85 Patel, drawing on Coughlan and Bhatt Murphy. The “court will itself judge the adequacy of the reason advanced for the change of policy, taking into account what fairness requires” (emphasis added) (Coughlan). Similarly, in R. (on the application of Rashid) v. Secretary of State for the Home Department [2005] EWCA Civ 744, it is held that “[i]t is for the court to decide whether the frustration of an individual's expectation is so unfair as to be a misuse of the authority's power. In performing this exercise, the court is not confined to a consideration of the rationality of the decision which is under challenge” (emphasis added).

future” (emphasis in original).86 The only protection that the AG needs to provide “reasonable notice of his intention to resile from the representation” in clear and unambiguous terms.87 This line of reasoning is correct if the case could really be classified as a SLE arising from a policy. However, there are two objections with this stance: 1. It is unclear as a matter of English administrative law whether a SLE could indeed arise from a mere policy. Indeed, in Hargreaves 88 involving SLE arising from a policy, the Court did not apply SLE but substantive review and Wednesbury unreasonableness. In that case, it is held that the Notice to Prisoners did not form a proper foundation for legitimate expectation. Similarly, in Hamble Fisheries 89where the facts involved concerned a change of government fishing policy, the Court held that “[t]he decision, therefore, seems to me not to lie in the field of legitimate expectation but in that of finality of decision-making” (emphasis added). The Supreme Court held in Re Finucane’s Application for Judicial Review that utilising the ground of SLE would “expand the doctrine far beyond its proper limits”, because it “engages a much more rigours standard” and it is the court “own view of what fairness requires”. In line with the Singapore’s jurisprudence that prefers a clear distinction between review and appeal and the relatively pure notion of separation of powers, it is argued that perhaps the Singapore Court erred in applying SLE if the facts of Tan Seng Kee were really just about a policy. Indeed, local writers like Chen argued that policy-based expectations should not be protected by SLE, since the process of policy-making ought not to be fettered and policies are inherently subject to policy changes. 90

2. Leaving aside the legal issue as to whether there can indeed be a SLE stemming from a policy, factually the AG representation amounts to a promise; the SLE stems from an assurance and not merely a policy. In formulating the policy of non-enforcement, AG Wong’s representation was found to be made “to a class of persons”91, which renders the facts to be closer to the prime case of legitimate expectation involving a promise. This gives rise to material points of distinction. First, this is unlike the general case whereby an applicant alleged

86 Tan Seng Kee (n63) [138]

87 ibid

88 n(2).

89 [1995] 2 All ER 714

90 Zhida Chen, Substantive Legitimate Expectations in Singapore Administrative Law: Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority [2013] SGHC 262, 26 SACLJ 237 (March 2014) at [24], citing Richard Clayton, "Legitimate Expectations, Policy, and the Principle of Consistency" (2003) 62 CLJ 93 at 100.

91 Tan Seng Kee (n63) [132]

that there is a SLE merely because of a policy directed to the public, as in Hamble Fisheries, whereby there is no any clear representations made by the public authority. Second, the policy in Hargreaves can be distinguished since there was no assurance provided by an official in that case, and the specific wording of the policy document clear contained a disclaimer as to whether the policy documents contain any representation as to timing – which is what the applicants alleged. Hence, it is argued that the present facts render it inappropriate to categorise Tan Seng Kee as a case involving legitimate expectation arising from a policy. Rather, it is more akin to the paradigm92 case whereby an assurance is offered by a representative official.

If this is the case, it would be wrong for the Court to hold that a low level of scrutiny (to the extent of merely requiring clear and unambiguous notice before resiling from the promise) would be appropriate when there are future changes to the policy. This does not mean that the AG will be barred from exercising their prosecutorial discretion freely. However, it does mean that it is for the courts to perform the balancing exercise in considering whether resiling from the representation that s377A will not be enforced in certain circumstances amounts to an abuse of powers. That the AG provided clear and unambiguous notice and reasons for the change of the policy is relevant for the balancing test.

However, the court will also apply deference to modulate the standard of review – ‘the standard of review is a sliding scale.’

93 When the decision involves “questions of general policy affecting the public at large” 94, the Court will scrutinise the decision on a bare Wednesbury basis – “without themselves donning the garb of policy-maker, which they cannot wear.” Hence, where the decision involved housing allocation in Begbie as well as R (Bibi) v Newham LBC (“Bibi”), which involves the question of the allocation of scarce public resources as informed by social and political value judgments, the court applied a less searching standard of review. The risk of unduly interfering with the powers of the executive is also mitigated with the remedial flexibility in recognising SLE: the court may order a procedural legitimate expectation to satisfy the substantive legitimate expectation by mandating that the public

92 Jason Ne Varuhas, ‘In Search of a Doctrine: Mapping the Law of Legitimate Expectations’ in Matthew Groves and Greg Weeks (eds), Legitimate Expectations in the Common Law World (Bloomsbury Publishing 2017)

93 Patel. Similarly, R v Education and Employment Secretary, ex p. Begbie [2000] 1 WLR 1115 (“Begbie”) held that ‘the degree of intensity of review will vary from case to case, depending on the character of the decision challenged’ (emphasis added).

94 Begbie

authorities take the applicant’s substantive legitimate expectation into account, as what had happened in Bibi. Where a specialised body has engaged in the weighing exercise in good faith and sincerely, while not conclusive of the weighing test to be performed by the courts, this is an important factor suggesting that it is fair to resile from the representations given the public interests, and English jurisprudence suggests that the court will accord the conclusion arrived by the administrator considerable respect.95 It is argued that this is aligned with the rationale of SLE: if the rationale and underlying basis of SLE is to prevent an “abuse of power” and “unfairness to the citizen on the part of a public authority”, and there is indeed an overriding public interest behind the change in position 96, it is clear that there is no abuse of power. Hence, given the level of deference and the modulating intensity of review at the balancing stage of the judicial assessment, it is argued that the Court should not have classified the facts of Tan Seng Kee as merely a SLE arising from policy; and the level of scrutiny for future changes to this position should be higher than the mere protection arising from natural justice requirements and include a balancing test performed by the judges, subject to the issues at hand and exhibiting deference where it is warranted.

Further, if the doctrinal basis of recognising the doctrine of SLE in these limited and exceptional circumstances stems from the need to prevent exposing individuals to the “grave threat of prosecution and the attendant deprivation of liberty”97 , it is unclear why this rationale does not support the judicial oversight whereby the grave threat of prosecution materialises notwithstanding the assurance of the policy of non-enforcement in the future. It is also unclear whether Singapore endorses the underlying normative foundation of the principles of good administration which underpin the recognition of SLE in the UK. There is unclear normative basis to the usage of the doctrine.

In characterising the doctrine of SLE, the Court failed to clarify the key question of whether the balancing test requires the courts to take a primary judgment, which may take into account conclusions arrived at by the administrators in appropriate stages of the analysis, relying on the

95 Patel.

96 Lord Carswell in Bancoult No. 2 [2008] UKHL 6.

97 Tan Seng Kee (n63) [133]

doctrine of deference. 98 This seems to be a key distinction of the SLE doctrine from other modes of substantive review like Wednesbury reasonableness in English administrative law.99 It is argued that in a haste to give legal effect to the representation made by the authorities, the Court hastily transplanted the doctrine from English administrative law without further discussion of its normative bases and the boundaries which the doctrine should operate. This is an unfortunate side-effect of the blanket deference demonstrated to defer to the decisions made by the AGC and the Parliamentary debates.

3.2: Whether recognising SLE necessarily erodes the merits/review distinction?

A closely related thread of concern is whether recognising SLE will erode the merits/appeal distinction.100 Indeed, Singapore courts have “repeatedly emphasised a restrained approach to judicial review”.101 Tan has observed that “it is doubtful as to whether any true substantive review takes place” (emphasis in original). 102 Recognising the ground of SLE in albeit exceptional circumstances bring the Singapore administrative law a step closer to substantive review, but it is argued that it does not necessarily erode the merits / review distinction when modulated with a context-sensitive deference in the weighing stage of the test. 103

In this regard, it is crucial to examine the definitions of “substantive review.” Elliott104 proposes two notions of substantive review – 1. Effect of review. A review is substantive if it places a

98 Indeed, this has also caused academic confusion, as Chng argues that the doctrine of SLE does not result in “extensive merits review of executive decisions” because the doctrine can be tweaked to focus on the “conduct of the authority”, implicitly suggesting that the courts will be taking a secondary judgment of whether the fair balance is struck and deferring to the administrator regarding the outcome of this assessment. This is problematic as it renders the analysis similar to a rationality / relevance way of review.

99 Patel, drawing on Coughlan and Bhatt Murphy; see also Varuhas, ‘In Search of a Doctrine’: ‘In other words, the courts do not ask whether the balance struck by a decision-maker between promise and countervailing interest was irrational, exercising a secondary, supervisory judgment. Rather, courts ask for themselves whether the balance struck was justifiable’.

100 Starkstrom (n5) at [61]

101 Kenny Chng, ‘An uncertain future for substantive legitimate expectations in Singapore: SGB Starkstrom Pte Ltd v Commissioner of Labour’ [2018] PL 192, 196

102 Daniel Tan, 'An Analysis of Substantive Review in Singaporean Administrative Law' (2013) 25 SAcLJ 296, [61].

103 Indeed, Chng argues that recognising SLE in “setting norms of good administration may be an important step towards redefining judicial review as a collaborative mechanism for branches of government to formulate principles of good governance together.”

104 Mark Elliott, ‘From Heresy to Orthodoxy: Substantive Legitimate Expectations in English Public Law’ in Groves and Weeks (eds), Legitimate Expectations in the Common Law World (Hart Publishing 2016)

given decision outside the scope of what administrators can decide, essentially foreclosing the range of options that a decision-maker can choose from; 2. Mode of review which involves “qualitative judicial assessment of the decision-maker’s reasons”. Analysed in this light, the ground of illegality, which is recognised as within the established grounds of judicial review in Singapore105, is also part of substantive review since it restricts the range of options that the administrator can pursue absent the relevant legal authority. Therefore, Elliott concludes that orthodoxy permits substantive review – and one way of reconciling the apparent conflict between orthodoxy and substantive review is the doctrine of deference. As Elliott observes: “[D]eference reflects the striking of a balance between rule of law considerations that support judicial intervention and competing constitutional considerations that favour curial respect for the discretion that has been statutorily invested in the decision-maker”. 106

Therefore, adopting a higher intensity of scrutiny and the recognising that the normative foundation of SLE requires the courts to be taking a primary judgment of the balancing test may be well within administrative orthodoxy when it is modulated by deference. However, it is dangerous to use deference as a blanket statement to justify all lack of judicial intervention, as “[d]eference that is mere subservience to the credentials of a decision-maker without true consideration of the reasons given is but ‘non-justiciability dressed in pastel colours’” 107 When is deference justified and how does the concept modify the tests performed by the courts in SLE? This section sets out to explain these two questions.

3.2.1: When might deference be justified?

A preliminary distinction between spatial deference and due deference is important. The former refers to the idea that the extent of deference depends on whether “its content falls within the special responsibility of the executive … or the special responsibility of the judiciary”.108 In

105 See [57] of Starkstrom, citing Chng Suan Taze v Minister for Home Affairs [1988] 2 SLR(R) 525 at [119]; Tan Seet Eng v Attorney-General and another matter [2015] SGCA 59 at [63] and [99]

106 Mark Elliott, ‘From Heresy to Orthodoxy: Substantive Legitimate Expectations in English Public Law’ in Groves and Weeks (eds), Legitimate Expectations in the Common Law World (Hart Publishing 2016).

107 Daniel Tan, 'An Analysis of Substantive Review in Singaporean Administrative Law' (2013) 25 SAcLJ 296, [70], citing T R S Allan, "Human Rights and Judicial Review: A Critique of 'Due Deference"' (2006) 65 CLJ 671 at 689.

108 Murray Hunt, ‘Sovereignty’s Blight’ in Nicholas Bamforth and Peter Leyland (eds.), Public Law in a MultiLayered Constitution (Oxford: Hart, 2003), 337

Singapore, judicial deference is accorded to matters where the courts lack “expertise or special knowledge”. 109 For instance, foreign policy and national security tend to be within the responsibilities of the executive 110 whereas issues on criminal justice belong to the responsibilities of the courts. 111 One criticism of this approach is that it may be hard to exclusively classify a subject matter, since cases like R (Carlile) v Secretary of State for the Home Department includes both issues on national security as well as human rights. Murray Hunt argues that this approach is underinclusive as it presupposes that there are 'discretionary area of judgment' within which primary decision-makers are simply beyond the reach of judicial interference 112 This, he argues, is “entirely at odds with the notion of review for justification”, whereby the purpose of judicial review is premised on the ideal that public authorities are called to explain their decisions. He further argues that such a conception is too blunt and fails to appreciate the nuance between deference as submission versus respect, where the former occurs when the courts treat a decision as non-justiciable and refuse to review it given that it is beyond their competence, whereas the latter occurs when the courts give some weight to the decisions of primary decision maker as part of its overall review of the justifications for the decision.

Rather, due reference refers to a more nuanced position whereby the courts defer differently at each stage of the assessment.

113 The balance between the courts intervening less in decisions of administrators and adopting a more searching standard in the UK is affected by parliament’s intention in enacting the Human Rights Act 1998; it removes the factors pointing away from intervention as it suggests that parliament entrusts the courts with its institutional expertise to answer particular questions.

114 Therefore, it is noted that one can easily refute the above arguments when applied in Singapore administrative law by emphasising that “administrative

109 Thio Li-ann, A Treatise on Singapore Constitutional Law (Academy Publishing, 2012) at [03.024]

110 Lord Sumption in R (Carlile) v Secretary of State for the Home Department [2014] UKSC 60.

111 International Transport Roth GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158; [2003] QB 728

112 ibid (n109).

113 For the approach being applied in cases, see ‘Belmarsh’ case (A v. Secretary of State for the Home Department [2004] UKHL 56) and Lady Hale in Carlile: ‘I have equally no doubt that on some parts of that assessment the court should be very slow indeed to disagree with the assessment made by the Government.’

114 S3 of the HRA reads: “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”

law principles do not exist in a vacuum and are informed by political philosophies and social norms”. 115

Indeed, this paper recognises that the balance will be struck differently in Singapore given the lack of parliamentary authorisation. How the balance may be struck in Singapore is outside the scope of this writing for the lack of space, but it is clear that in the Court of Appeal in Tan Seng Kee, the role of the judiciary as envisaged include the protection of liberty and the prevention of necessary deprivation of individual liberty.116 If the protection of individual liberty is part of the constitutional role dedicated to the judiciary, the doctrine of deference can help to modulate the standard of review when the courts are performing the weighing test in considering whether the public authorities ought to be held to the representations made. Indeed, Elliott argues that the judicial discretion in the weighing test “must not be exercised with insensitivity” regardless of the context of the issues that the court is deciding.117

3.2.2: How may deference modulate the intensity of scrutiny to make the doctrine of SLE more palatable?

As Jhaveri noted118 , there is not much guidance as to how the court can perform the balancing test. This underexplored part of the doctrine can be supplemented with the doctrine of deference. A keyway proposed by Elliott in which deference could soften the intervention by the judiciary is to recognise that there are three distinct sites for deference to operate:

1) “First, the justificatory burden triggered by the expectation may be more or less onerous.

2) Second, the court might be more or less deferential in its assessment of the defendant’s reasons by way of determining whether the justificatory burden has been discharged

115 Thio Li-ann, ‘The Theory and Practice of Judicial Review of Administrative Action in Singapore: Trends and Perspectives’ (SAL Conference 2011: Developments in Singapore Law between 2006 and 2010 Trends and Perspectives, 2011), pp.719 and 721.

116 Tan Seng Kee (n63) [133]

117 ibid (n105)

118 Swati Jhaveri The doctrine of substantive legitimate expectations: the significance of ChiuTeng@Kallang Pte Ltd v Singapore Land Authority, PL 2016, Jan, 1-9.

3) Third, the court might forego any assessment of whether frustration is justified by characterising the expectation as nothing more than a mandatory relevant consideration.”119

Therefore, matters such as the “size of the group” which the representation is directed and the content and nature of the promise 120 may point towards “the imposition of a heavy justificatory burden” for the executive. However, deference can come in at the second stage. Where the issue relies in the macro-political field and relate to polycentric concerns that the judiciary is ill-equipped to deal with, not being democratically elected, the court may defer to the balancing performed by the administrators and hold that the (onerous) burden has been satisfactorily discharged. Indeed, that the promise is made to a small group of people unequivocally does not “necessarily imply the appropriateness of a non- deferential approach when it comes to determining whether the burden has been discharged”.121

A last resort as demonstrated by the case of Bibi is that the court essentially eschewed “any requirement of justification in favour of an essen- tially procedural obligation to take account of the expectation when making a decision that risks frustrating it.” This remedial flexibility (as supported by Jhaveri122) further allows adequate respect to be given to the judgment and discretionary conferred by parliament to the administrative decision maker. While Chng is of the opinion that remedial flexibility does not rescue the courts from having to decide whether to enforce the SLE, I disagree because all courts have to give binary answers in terms of ‘yes’ or ‘no’ as a matter of practicality – disputes have to be adjudicated. However, Jhaveri’s conception of remedial flexibility mediates the sharpness of the doctrine as it allows the courts the discretion to offer protection in terms of procedural legitimate expectation whereby the issue may require greater deference to the administrator’s decision-making. Elliott concludes that with modulating level of review due to the doctrine of deference “is to render review essentially non-substantive, the substantive nature of the expectation notwithstanding.” In view

119 ibid (n105) 223.

120 Factors which the Court of Appeal used as starting points in Starkstrom at [47]

121 ibid (n105)

122 “At this stage in the law’s development it may be preferable for remedial flexibility with the court having various options open to them in how they enforce the expectation: taking advantage of the variety of options available as discussed above”.

of the Singapore court’s worry about judicial encroachment of issues that ought to have been decided by the executive, this way of thinking about substantive legitimate expectation allows the doctrine to be more palatable, and presents a ground for extending the limited, exceptional circumstances that the doctrine is recognised in Tan Seng Kee

3.3: Normative reasons for recognising SLE in Singapore

Having defended some of the normative concerns levelled against the doctrine of SLE, this section distils from judicial reasoning and opinions of academics as to the positive reasons why the doctrine of SLE ought to be recognised in Singapore.

3.3.1: Good administration

The Court’s implicit assertion in Chiu Teng that the normative bases of SLE is the principles of good administration 123 does not seem to be explicitly referenced in Tan Seng Kee. However, I argue that the focus on preventing the deprivation of liberty notwithstanding the assurances provided by the AG is nonetheless part of the idea of good administration. It has been argued by academics that the “promotion of good administration and the prevent of abuse of power would be the most appropriate bases in principle of the doctrine”. 124 By focusing on the conduct of the authority, it is argued by Chng that the promotion of the norms of accountability and good administration “accords with the green-light approach to judicial review preferred in Singapore”. This position is similarly argued for in this paper. However, the reasoning is worth unpacking because in requiring the courts to adopt a more searching level of scrutiny and decide for themselves whether the balancing test is struck in favour of public interest, it can be said that the doctrine of SLE results in the courts redressing bad government decisions, or control coming from the judiciary rather than from Parliament or the executive. 125 Indeed, it is unclear why merely focusing on the “conduct of the authority”126 and whether they have fairly considered the substantive legitimate expectation of the parties would necessarily render

123 At [112]: “If private individuals are expected to fulfil what they have promised, why should a public authority be permitted to renege on its promises or ignore representations made by it?”

124 Kenny Chng, ‘An uncertain future for substantive legitimate expectations in Singapore: SGB Starkstrom Pte Ltd v Commissioner of Labour’ [2018] PL 192

125 Which Chan Sek Keong CJ described as traits of the red-light approach

126 Kenny Chng, ‘An uncertain future for substantive legitimate expectations in Singapore: SGB Starkstrom Pte Ltd v Commissioner of Labour’ [2018] PL 192, 198

the approach compatible with the green-light approach – if the benchmark for the greenlight approach is that control on administrative action ought to come from within the executive. Is this to mean deference is to be exercised to the judgment of the authorities when engaging in the 2nd stage of the balancing exercise? If yes, how is this compatible with the English reasoning that the courts are supposed to take a primary judgment of whether the balance is struck correctly? If the decision-making power is conferred to the judiciary to promote these norms, can it really be said that control on administrative discretion comes from within the executive?

127

As argued above with respect to Duguit’s conception of the green-light approach, it is possible to reconcile the apparent conflicts between greater judicial intervention in SLE and the greenlight approach that is said to characterise domestic constitutional settings. This shows that perhaps the framework of the red-light versus green-light dichotomy may be too broad and nebulous – different descriptions of the test seem to place SLE under different approaches. Nonetheless, the point here is that SLE founded upon good administration is a compelling rationale that is compatible with the green-light approach characterising the local constitutional arrangements.

Another normative grounding for the doctrine is “accountability and consistency in administrative decision-making”. 128 Indeed, citing Forsyth who argues that "[p]ublic trust in the government should not be left unprotected" 129, Chen argues that the need to uphold trust in public administration underpinning the doctrine “resonate with the governmental ethos in Singapore.”130

127 As Chan Sek Keong CJ suggests is a characteristic of the green light approach in “Chan Sek Keong CJ, "Judicial Review From Angst to Empathy" (2010) 22 Singapore Academy of Law Journal 469, [29]

128 Kenny Chng, ‘An uncertain future for substantive legitimate expectations in Singapore: SGB Starkstrom Pte Ltd v Commissioner of Labour’ [2018] PL 192, citing R. (on the application of Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 at [67]-[70].

129 Christopher Forsyth, "The Provenance and Protection of Legitimate Expectations" (1988) 47 Camb LJ 238 at 239.

130 Zhida Chen, Substantive Legitimate Expectations in Singapore Administrative Law: Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority [2013] SGHC 262, 26 SACLJ 237 (March 2014) at [12], citing Lee Hsien Loong v Singapore Democratic Party [2009] 1SLR(R) 642 at [102]-[103].

IV: If there are normative reasons rendering the recognition of SLE appealing in Singapore, what should the doctrinal test be?

The starting point of the analysis is the doctrinal test for SLE as set out in Chiu Teng.

4.1: Whether detrimental reliance is a pre-condition for the applicants to evoke SLE?

Noting that whether detrimental reliance is a pre-condition for establishing SLE is “doubted in a series of cases in the United Kingdom”131 , the Court left the question open since there had clearly been detrimental reliance by the “homosexual men”.132

It is important to note that it is controversial in the UK case laws as to whether the requirement of detrimental reliance is required. The latest Supreme Court jurisprudence held that it cannot be a strict requirement because it will be contrary to the principles of good administration, or the rationale of recognising legitimate expectation in the first place (Re Finucane): “It cannot conduce to good standards of administration to permit public authorities to resile at whim from undertakings which they give simply because the person or group to whom such promises were made are unable to demonstrate a tangible disadvantage.”

Indeed, “[t]o disregard the legitimate expectation because no concrete detriment can be shown would be to place the weakest in society at a particular disadvantage. It would mean that those who have a choice and the means to exercise it in reliance on some official practice or promise would gain a legal toehold inaccessible to those who, lacking any means of escape, are compelled simply to place their trust in what has been represented to them” 133 Similarly, in Patel, it is mentioned that ‘[w]hile detrimental reliance is not a condition precedent to the existence of a substantive legitimate expectation in public law, its presence may be an influential consideration in determining what weight should be given to the legitimate expectation when evaluating the balance of fairness.”

131 Tan Seng Kee (n63) [142].

132 Tan Seng Kee (n63) [144].

133 R (Bibi) v Newham LBC

While the Court of Appeal left this question opened, it is argued that for doctrinal coherence and if the normative basis of recognising SLE is the principles of good governance, one cannot be faulted for failing to rely on the detriment. Rather, it might be the expectation that the assurance will be fulfilled that is the relevant harm caused to the individuals. To recognise that the requirement of detrimental reliance is needed, it is unclear what is the principled basis as to recognising legitimate expectation. To be fair, there are arguments that the doctrine of legitimate expectation in English administrative law is incoherent itself, with tricky points like whether the applicant must have knowledge of the assurance made by the public authorities.

134 The principle of consistency135 (which would suggest that knowledge of the applicant is immaterial) is also raised to be a rationale of SLE. However, this is doubted in later cases. 136 Nonetheless, to import the doctrine, it is important for the Singapore courts to consider some of these tricky issues.

Therefore, it is clear that the Court’s application of the doctrine in Chiu Teng did not discuss the rationale as to why the doctrine is being applied. Given that the doctrine of legitimate expectation is unclear doctrinally even at English law, I argue that it is unsatisfactory for the Singapore courts to receive parts of it without referring to the underlying normative basis.

4.2: Whether the reasonable reliance element is needed?

Further, to require there to be reasonable reliance clearly raises the bar and seems to run counter to the principles of good administration – why are the responsibilities to maintain public trust of the public authorities resolved merely because the reliance may not be reasonable in a particular instance?

134 R. (on the application of Rashid) v. Secretary of State for the Home Department [2005] EWCA Civ 744

135 R (Lumba) v Secretary of State for the Home Department: ‘There is a correlative right to know what that currently existing policy is, so that the individual can make relevant representations in relation to it.’ ‘What must, however, be published is that which a person who is affected by the operation of the policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made.’ The courts came closest to recognise a freestanding right to consistent treatment in Mandalia v Secretary of State for the Home Department ‘[T]he applicant’s right to the determination of his application in accordance with policy is now generally taken to flow from a principle, no doubt related to the doctrine of legitimate expectation but freestanding’ (emphasis added).

136 However, the existence of such principle is doubted in R (Gallaher Group Ltd) v The Competition and Markets Authority Lord Carnwath: ‘the domestic law of this country does not recognise equal treatment as a distinct principle of administrative law. Consistency ... is a generally desirable objective, but not an absolute rule’ (emphasis added).

In the doctrinal test set out by Chiu Teng, element (d) states:

“The applicant must prove that it was reasonable for him to rely on the statement or representation in the circumstances of his case:

(i) if the applicant knew that the statement or representation was made in error and chose to capitalise on the error, he will not be entitled to any relief;

(ii) similarly, if he suspected that the statement or representation was made in error and chose not to seek clarification when he could have done so, he will not be entitled to any relief;

(iii) if there is reason and opportunity to make enquiries and the applicant did not, he will not be entitled to any relief.”

This element is not directly featured in the UK jurisprudence. In the circumstances where an applicant unreasonably relied on the statement, how might the UK jurisprudence approach the issue?

There are some similar requirements imposed on the applicant in both stage 1 and stage 2 of the English case laws:

1) The claimant ‘must have placed all his cards on the table 137 Hence, the applicant cannot trick the authorities into making a promise. This seems to correspond to the situation envisaged in d (i).

2) The English jurisprudence adopts an objective test in understanding what would have been reasonably understood by the representee.138

However, it is clear that the English case laws do not impose the burden on the representee to make enquiries, outlined in d(iii)

137 R. v. IRC, ex parte MFK Underwriting [1990] 1 WLR 1545.

138 Patel

Tay argues that there are good reasons why these requirements are needed, namely they create the right incentives for the applicant to be reasonable – “only meritorious applicants - and not all and sundry - will have the drastic remedy of substantive relief against a public body open to them”.139 I argue that if the worry is about the applicant being unreasonable in understanding the representation, the English test has adequately addressed the issue. It is noted that whether it is reasonable in understanding the assurance might be a different question as to whether it is reasonable to rely on the assurance. Further, when the applicant has unreasonably relied on the promise, the courts have the discretion at the second stage of the balancing test to hold that the public interests in allowing the authorities to resile from the promise is more important and it is therefore, not an abuse of powers to resile from the representation given the unreasonable reliance. While there are no authorities to help us understand the threshold of reasonableness to rely on the assurance, it is argued that this duty to take steps to enquire imposed on the applicant ought not be construed too rigourously140, else, it will defeat the normative principles underlying the doctrine. It is surely not in the spirit of good administration to place a high burden on the citizens to enquire and verify the assurance while the authorities may be allowed to make promises without having the need to worry about resiling from them. Hence, it seems like there is no need to explicitly spell out the unreasonable reliance requirements as the English two-stage process is robust enough to filter for meritious claims. The converse may bring unintended consequences as parties litigate over the threshold of reasonableness and lost the bigger pictures on the normative principles that underpin the recognition of the doctrine. To the extent that Tay seems to pitch what is principled with what is practical, I reject the stance that the requirement of reasonable reliance should be fleshed out as an element to be satisfied before the claim for legitimate expectation can be recognised, since it is a false dichotomy to assert that what is principled must be unpractical. The current two-stage tests in English jurisprudence seems to be adequate.

V: Conclusion

139 Charles Kuan Seng Tay, 'Substantive Legitimate Expectations - The Singapore Reception' (2014) 26 SAcLJ 609

140 Indeed, Tay also argues at the end of the article that the third proviso of the reasonable reliance requirement is “immediately striking because its limits are no ascertainable from its words [and] … is open to abuse by public authorities”. Crucially, it may give public authorities an “impregnable shield against liability.”

In sum, while it is a step in the right direction to recognise the legal effects of the representations made by the AG, the recognition of SLE in Singapore administrative law is done in a hasty manner. The exceptional and limited circumstances of the recognition does not absolve the court of the responsibility to ensure that the English doctrine is incorporated in a principled manner. Raising the convenient argument that deferring to the conclusion reached by the AG and Parliament, any recognition of SLE does not violate SOP and the review/merits distinction, the Court in Tan Seng Kee omitted important discussion of the normative underpinning of the doctrine which compel us to recognise it in the exceptional context. While the outcome is commendable, the judicial reasoning can be imprecise and unsatisfactory at times, eschewing neater ways of explaining that are in line with administrative orthodoxy. Given that there are some confusion with the English jurisprudence of legitimate expectation, it is argued that more discussion as to its normative appeal and therefore the attendant doctrinal framework ought to be in place. It would be dangerous to receive the materials without critical reflection.

Unpacking the notion of SOP and the concept of substantive review, I argue that the SLE doctrine does not necessarily violate these principles. To the extent that it may risk doing so, adopting deference in a principled manner alleviates some of the normative concerns. A practical framework is proposed leveraging the sites where deference could be exhibited, as proposed by Elliott.

A brief survey of the doctrinal test reviews two additional requirements that are non-existent in the English jurisprudence. It is argued that if principles of good administration is the normative basis of recognising the doctrine, the element of detrimental reliance ought not be a pre-condition for the satisfaction of the test; and that the reasonable reliance requirement is extraneous, as its purpose can be satisfied with the current case laws on SLE in the English jurisprudence.

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“IT

WASN’T ME”: A REVIEW OF MENTAL

DISORDERS AND LEGISLATION

SURROUNDING

VOYEURISTIC OFFENCES

Zoe Toh, Elizabeth Lim*

Joint Runners-Up for Best Article

Introduction

In view of increasingly brazen offending, it is no wonder that the concern surrounding voyeurism has continued to mount. Most jurisdictions have opted to enact new legislation or add to existing legislation to capture voyeuristic conduct within sight of the law. In certain jurisdictions, they take it as far as criminalising inchoate crimes – even the preparatory act of operating equipment with the intention to observe a person doing a private act is sufficient to warrant a custodial sentence. 1 Yet, we observe that the rates of voyeurism continue to rise steadily, and the problem is not isolated to one specific cultural or geographical context. In Singapore, the annual record of voyeuristic incidences in Singapore increased from 467 cases in 2021 to 519 cases in 2024. Even after the introduction of Section 377BB to capture voyeuristic actions in 2019, we are still seeing a marked increase across the years. This is similar to the growth of the problem in Canada. After enacting legislation in 2005, Canadian law enforcement has yet to observe the desired downward trend in the offence; the national database indicates that the problem has grown from 1 reported actual incident in 2005 to 1,052 in 2022.2 Within the UK, the Office of National Statistics reported 15,948 cases of exposure and voyeurism in just 2024 alone.3 The government initiative, ‘The Revenge Porn Helpline’, has testified to a rise in those figures it received nearly 19,000 reports in 2023, marking a

* Both authors are from Singapore Management University (SMU) (LLB Class of 2027)

1 Penal Code 1871 (2020 Rev Ed) s 377BB2(a)

2 Statistics Canada, “Incident-based crime statistics, by detailed violations, Canada, provinces, territories, Census Metropolitan Areas and Canadian Forces Military Police” <https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=3510017701>

3 Office of National Statistics, ‘Crime and Justice’ (accessed 18 July 2025) <https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice>. We accessed this website to download the Excel file, “appendixtablesyedec2024final”.

106% increase from 2022, and a tenfold rise over five years.4 It should be noted that there is no clear data from all three jurisdictions on what percentage of voyeuristic offences are committed by voyeurs with relevant antecedents. Regardless, it seems that despite the best efforts of governments to ward off this conduct, voyeurs remain undeterred by the custodial terms, fines and the threat of increasingly heavy punishment.

This raises the question: Are national approaches adopted thus far sufficient in addressing the root causes of voyeuristic offences? Sociological research has demonstrated that there are multiple factors that must be accounted for the rise in offending: the advent of discrete technology, the hyper-sexualisation of women pervading today’s social context and cultural consumption of pornography, and underlying mental conditions which weakens the offender’s control over their own actions.5 In sentencing, while the law may not be able to address the first two abovementioned factors in mitigation of the offence, it certainly can account for the last factor. The courts in the UK, Canada and Singapore have historically demonstrated judicial mercy when sentencing mentally disordered offenders especially where expert evidence testifies that the connection between the disorder6 and its effect in compelling the individual to commit the offences is strong.7

Across our chosen jurisdictions of Singapore, the UK and Canada, we observe that the courts’ collective understanding of various disorders often depends on whether acting counsel chooses to appoint experts during trial, or to raise arguments on appeal regarding the disorder’s impact on their client. Diverging opinions then rise across jurisdictions in examining the issue of whether voyeuristic disorder ought to carry mitigatory weight, the Singaporean courts disallowed it on the basis of expert psychiatric opinion adduced8 but the Canadian courts opted to allow a formal diagnosis of voyeuristic disorder to necessitate rehabilitation as the dominant

4 Crime and Policing Bill Deb 24 April 2025, cols 355 (Mr Jack Rankin, Windsor, Con)

5 Krystian Wdowiak et al. “Exploring voyeurism: a review of research” (2024) Journal of Education, Health and Sport <https://doi.org/10.25318/3510017701-eng>

6 Chong Hou En v Public Prosecutor [2015] 3 SLR 222 (“Chong Hou En”) at [25].

7 Chong Hou En at [59].

8 Chong Hou En at [21], [61], [63] and [64].

sentencing principle.9 Another concern is that the judicial understanding of disorders may not be in alignment with the latest developments in the psychiatric field.

Considering the recent recognition of a new sexual control impulse disorder in the International Classification of Diseases 11th Revision (“ICD-11”), this paper makes its first submission that courts should revisit their understanding of disorders present in voyeurs. For clarity, we also set out a framework categorising the different types of disorders and the corresponding sentencing considerations.

The second submission concerns legislation governing voyeuristic offences. In Singapore, the UK, and Canada, the law similarly criminalises three forms of conduct that violate an individual’s expectation of privacy. This paper will explore the differences in how each jurisdiction frames these offences, with a focus on how legislative wording may impact the viability of charging an accused person. We submit that the most effective legislation is that which facilitates efficient and consistent prosecution, as it allows the law to have a wider reach and therefore stronger control over voyeuristic offenders. We turn to Singaporean legislation as an example of effective legislation.

I. Understanding the connection between voyeuristic offences and mental health conditions

It is vital to note that individuals who commit voyeuristic acts are not necessarily persons with underlying mental disorders.10 Prior to exploring claims on relevant sentencing principles, we intend to categorise individuals who commit voyeuristic offences into two categories: Voyeurs with behavioural preferences, and voyeurs with incapacitating conditions. We will further explain which conditions fall within the two categories, and the rationale behind the titles of the categories.

Before proceeding further, one may make the instinctive inference from the labels used that voyeurs diagnosed with none of the incapacitating conditions are then “normal” “normal”

9 Ghaly (Re), [2021] OCPSD No 31, 2021 ONCPSD 31, [2021] OCPSD No 31

10 Pang et al, “Paraphilia without symptoms of primary psychiatric disorder: a case report” (2023) Journal of Medical Case Reports https://doi.org/10.1186/s13256-023-03774-8

in the sense that they are just persons with no mental health disorders, and who with full volition, choose to engage in this offensive behaviour. With reference to psychological diagnostic criteria, we caution against this instinctive inference for two reasons. First, when a clinician is evaluating if a person has a mental disorder, there are often thresholds that must be met, examples being: the period of offending and the age of the offender.11Notably, for a formal diagnosis of voyeuristic disorder (“VD”) using the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-5”), the person must meet the threshold of having offended for at least 6 months.12 An individual charged for voyeuristic act(s) could easily be a person engaging in voyeuristic behaviour out of curiosity, or a person whose pattern of conduct indicates a developing disorder.13 We submit that this is an important factual nuance that the Court should consider when deciding if rehabilitation or deterrence ought to be the foremost sentencing principle.

(A) Category 1: Voyeurs with Behavioural Preferences

This category includes voyeurs who are not formally diagnosed with any mental disorder, and voyeurs who may be diagnosed with VD. We have labelled this category as a behavioural preference as voyeuristic disorders are understood as a disorder of atypical sexual preference.14 It may seem incongruent to label VD as a behavioural preference, given that it is a recognised paraphilic disorder included within the leading diagnostic manual, DSM-5.15 To reconcile this supposed inconsistency, one must look towards the definition of paraphilic disorders and voyeuristic disorders.

11 Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR). American Psychiatric Association Publishing, Washington, DC. <https://www.msdmanuals.com/professional/psychiatricdisorders/paraphilias-and-paraphilic-disorders/voyeuristic-disorder>

12 Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR). American Psychiatric Association Publishing, Washington, DC. <https://www.msdmanuals.com/professional/psychiatricdisorders/paraphilias-and-paraphilic-disorders/voyeuristic-disorder>

13 Nicholas Tze Ping Pang, Ruziana Masiran and Aishah Siddiqah Alimuddin, “Paraphilia without symptoms of primary psychiatric disorder: a case report” (2023) 17(4) Journal of Medical Case Reports

14 E-mail interview with Cheow Enquan, Doctor, Institute of Mental Health (22 October 2023), see Appendix A

15 Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR). American Psychiatric Association Publishing, Washington, DC. <https://www.msdmanuals.com/professional/psychiatricdisorders/paraphilias-and-paraphilic-disorders/voyeuristic-disorder>

DSM-5 sets out this definition of voyeuristic disorder:16

(1) Patients experience recurrent and intense arousal from observing an unsuspecting person who is naked, undressing, or engaging in sexual activity; arousal is expressed in fantasies, intense urges, or behaviours;

(2) Patients have acted on their sexual urges with a nonconsenting person, or these fantasies, intense sexual urges, or behaviours cause clinically significant distress or impaired functioning at work, in social situations, or in other important areas of life;

(3) The condition has been present for ≥ 6 months; and

(4) The patient must be > 18 years old.

To affirm our understanding, we reached out to Dr Cheow En Quan, who currently serves as a Senior Consultant with the Department of Forensic Psychiatry at the Institute of Mental Health (“IMH”). He candidly shared that the view of majority of the IMH psychologists is that voyeuristic disorder is only a disorder of sexual deviance, which has no bearing on impulse control.17 While there is no clear commentary on whether this opinion is universally beheld, we submit that it is likely to be true.

Firstly, the diagnostic criteria for VD does not indicate that the individual would suffer from a degree of impulsivity like that of an impulse control disorder. With impulse control disorders, offenders are more likely to commit the criminal behaviour without forethought, or otherwise on the spot.18 Voyeurs often plan how and where and when they would execute the act, which precludes them from this definition of impulsivity. 19 Some may suggest that the use of the phrase “clinically significant distress or impairment” instinctively suggests that there is

16 Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR). American Psychiatric Association Publishing, Washington, DC. <https://www.msdmanuals.com/professional/psychiatricdisorders/paraphilias-and-paraphilic-disorders/voyeuristic-disorder>

17 E-mail interview with Cheow Enquan, Doctor, Institute of Mental Health (22 October 2023), see Appendix A

18 Goh Lee Yin at [3].

19 Interview with Rajesh Jacob, Doctor, Promises Healthcare; Chong Hou En at [52]

incapacitation of the mind due to the distress faced, although the specific extent of the distress is open to interpretation. Experts disagree for paraphilic disorders, the person would be under the influence of the atypical desire but not crucially incapacitated by it, especially not to the extent of an impulse control disorder,20 nor a compulsive disorder.21 Additionally, we should look at the rationale behind the inclusion of the phrase, “clinically significant distress”. 22 Academics suggest that this was recently included in across almost half of the DSM-5 diagnostic criteria to reduce false positive diagnoses where only a mere indication of incapacitation is found without clear pathology.23

However, we would be remiss if we did not acknowledge the growing body of research on voyeuristic disorders. Historically, the aetiology and pathology of voyeuristic disorders has not been deeply investigated, 24 but the alternative theory currently explored is that voyeuristic disorders should be treated as compulsive disorders. We first turn to the opinion proffered by Dr Julia Lam, a Singaporean consultant forensic psychologist, to understand this theory 25 Largely, her argument is that the symptoms exhibited by offenders with voyeuristic disorder overlap with the individuals diagnosed with obsessive compulsive disorder. For ease of reference, we have set out the DSM-5 diagnostic criteria for obsessive-compulsive disorders (“OCD”) here:

(1) Recurrent and persistent thoughts, urges or images that are experienced, at some time during the disturbance, as intrusive, unwanted, and that in most individuals cause marked anxiety or distress.

20 E-mail interview with Cheow Enquan, Doctor, Institute of Mental Health (22 October 2023), see Appendix A; Interview with Rajesh Jacob, Doctor, Promises Healthcare; Chong Hou En at [52]

21 E-mail interview with Cheow Enquan, Doctor, Institute of Mental Health (22 October 2023)

22 Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR). American Psychiatric Association Publishing, Washington, DC. <https://www.msdmanuals.com/professional/psychiatricdisorders>

23 Robert L. Spitzer and Jerome C. Wakefield, “DSM-IV Diagnostic Criterion for Clinical Significance: Does It Help Solve the False Positives Problem?” (1999) 156(12) American Journal of Psychiatry 1856

24 Krystian Wdowiak et al. “Exploring voyeurism: a review of research” (2024) Journal of Education, Health and Sport <https://doi.org/10.25318/3510017701-eng>

25 Dr Julia Lam was the Director of Forensic Psych Services of Winslow Clinic, Promises Healthcare from Feb 2011 to Jun 2015. She has written more than 300 forensic reports for Court purposes in the past 6 years and has testified in Singapore Courts.

(2) The individual attempts to ignore or suppress such thoughts, urges, or images, or to neutralize them with some thought or action (i.e., by performing a compulsion).

(3) Repetitive behaviours (e.g. hand washing, ordering checking) or mental acts (e.g., praying, counting, repeating words silently) that the person feels driven to perform in response to an obsession, or according to the rules that must be applied rigidly.

(4) The behaviours or mental acts are aimed at preventing or reducing distress or preventing some dreaded event or situation. However, these behaviours or mental acts either are not connected in a realistic way with what they are designed to neutralize or prevent or are clearly excessive.

(5) The obsessions or compulsions are time consuming (e.g., take more than 1 hour per day) or cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

(6) The disturbance is not better explained by the symptoms of another mental disorder (e.g., excessive worries, as in generalized anxiety disorder; preoccupation with appearance, as in body dysmorphic disorder; difficulty discarding or parting with possession, as in hoarding disorder; hair pulling, as in trichotillomania [hair-pulling disorder]; skin picking, as in excoriation [skin-picking] disorder); stereotypies, as in stereotypic movement disorder; ritualized eating behaviour, as in eating disorders; preoccupation with substances or gambling, as in substance-related and addictive disorders; sexual urges or fantasies, as in paraphilic disorders; impulses, as in disruptive, impulse-control, and conduct disorders; guilty ruminations, as in major depressive disorder; thought insertion or delusional preoccupations, as in schizophrenia spectrum and other psychotic disorders; or repetitive patterns of behaviour, as in autism spectrum disorder).

Dr Lam suggests that the voyeur’s conduct may meet the first and third element, as they do experience ”persistent and intense atypical sexual arousal patterns” that is accompanied by

clinically significant distress or impairment. 26 To relieve themselves of the urge, they will undertake the act of looking or peeping for the purpose of achieving release will give them temporal relief, which meets the second element.27 Where the controversy arises is with the fourth element. Intuitively, we might view voyeuristic behaviour as ego-syntonic, which is a label for behaviour that aligns with what the individual believes and accepts is normal. Therefore, engaging in ego-syntonic will bring the individual pleasure. What Dr Lam is suggesting is that the voyeuristic behaviour is instead ego-dystonic, or a form of behaviour that is antithetical to the individual’s wants and desires. In her experience treating these individuals, it seems that the individual may engage in voyeuristic behaviour to relieve the clinically significant distress experienced, but they will feel great shame or guilt after. The fifth element is subjective to the individual offender but is likely to be met if the individual exhibits great distress, and subsequently greater engagement in voyeuristic behaviour. The final element is similarly subjective.

This school of thought was alluded to in the High Court judgement of Chong Hou En by Dr Tommy Tan, the defence psychiatrist. While he agreed with Dr Phang that VD was not an impulse control disorder, he did highlight that the accused was “not able to control his actions due to his mental disorder”28 and was “compelled to buy the equipment or else he would not be able to obtain his sexual arousal and satisfaction.”29 He followed up by suggesting that the causal link between a mental disorder and “an offence does not necessarily require an inability to control impulses, such as seen in kleptomania or pyromania”, and that individuals’ paraphilias may compel them to plan and to execute these acts.30 As the distinction between impulses and compulsions was not discussed in court, nor the differing effect of a compulsion on the accused’s mind, we respectfully submit that this nuance appeared to be overlooked by the appellate court. As the court’s primary inquiry was on the exercise of any control over his actions, they found that the accused, being able to ”stop at any time”,31 had retained sufficient

26 Julia Lam, “Fifty Shades of Sexual Offending - Part 1” [2017] (July 2017) Singapore Law Gazette

27 Julia Lam, “Fifty Shades of Sexual Offending - Part 1” [2017] (July 2017) Singapore Law Gazette

28 Chong Hou En at [45].

29 Chong Hou En at [45].

30 Chong Hou En at [45].

31 Chong Hou En at [52].

control to commit the voyeuristic act. As such, the court did not accord the diagnosis of voyeuristic disorder mitigatory weight.

There is also some support for this body of thought from clinical research conducted. In his recent case note, Dr Sidi suggests that the use of Selective Serotonin Reuptake Inhibitors (”SSRIs”) has been helpful in treating patients with voyeuristic disorder.32 SSRIs are a class of antidepressant medications commonly used to treat conditions such as major depressive disorder, obsessive compulsive disorder (”OCD”) and post-traumatic stress disorders.33 SSRIs have been used to treat individuals with paraphilic disorders, especially where there is evidence of underlying anxiety or depression.34 This supports the possibility that voyeuristic disorders may have a compulsive dimension, but will need longer-term and more wide-ranging research in order to affirm this hypothesis. As such, for the purposes of this paper, we will proceed with the prevailing school of thought and label voyeuristic disorders as disorders of behavioural preference.

(B) Category 2: Voyeurs with Incapacitating Conditions

The label for this category was crafted in consideration of how it could be most efficiently understood by a court which mental disorders may necessitate a rehabilitative focus. This is not to preclude other conditions that have not been listed here – as long as the court can understand how the disorder “affects the individual’s ability or capacity to control or refrain himself from committing the criminal act”, 35 it could be an incapacitating condition. This category includes Compulsive Sexual Behaviour Disorder (“CSBD”), disorders that could lead to a manifestation of voyeuristic behaviour and disorders that are commonly comorbid with VDs. In the last two categories, they include major depressive disorder, personality and anxiety

32 Hatta Sidi and Marhani Midin, “Voyeurism with sexual fantasy on female body parts: a subtype of obsessive compulsive disorder? – a case report” (2008) 17(1) Malaysian Journal of Psychiatry 88

33 Mayo Clinic Staff, ‘Selective Serotonin Reuptake Inhibitors’ < https://www.mayoclinic.org/diseasesconditions/depression/in-depth/ssris/art-20044825> (Accessed 15 July 2025)

34 Garcia, F. D., Delavenne, H. G., Assumpção, A.deF., & Thibaut, F. (2013). Pharmacologic treatment of sex offenders with paraphilic disorder. Current psychiatry reports, 15(5), 356. <https://doi.org/10.1007/s11920-0130356-5>

35 Chong Hou En at [27].

disorders, other paraphilic disorders (especially exhibitionistic disorder), fetishism 36 and impulse control disorders.37

While the last two categories of disorders are no stranger to the courts, CSBD is a newly recognised clinical condition classified within the ICD-11. It is an impulse control disorder, characterised by a persistent pattern of failure to control intense, repetitive sexual impulses, resulting in persistent sexual behaviour that causes marked distress or significant impairment in personal, social, or occupational functioning.38 According to the World Health Organization (“WHO”), such behaviour must persist over an extended period – typically six months or more – and the distress should not be solely attributable to moral judgments or societal disapproval. We will illustrate the extent of the distress below after explaining the impact of its inclusion in the ICD-11.

This classification reflects growing clinical consensus that voyeuristic behaviours may reflect underlying psychopathology rather than moral failing or solely voluntary conduct.39 About a decade ago, the Singaporean courts rejected the argument that voyeuristic disorders were impulse control disorders.40 Recognition of an impulse control disorder with conduct and urges similar to (albeit stronger than) voyeuristic disorder may lead to a reconsideration of whether this branch of disorders affect the individual’s ability to control their voyeuristic tendencies. The introduction of CSBDs has also been helpful in identifying alternative explanations for offenders with unusually severe offending conduct. By providing a clinical framework to explain their persistent, repetitive behaviour as stemming from impaired control rather than sheer deviance or malice, it has allowed for courts to consider rehabilitation ahead of other sentencing principles. However, this in no way provides a loophole for offenders who may be

36 Public Prosecuto v Low Ji Qing [2019] 5 SLR 769 (“Low Ji Qing”).

37 Laran Joseph , “DSM 5 Category: Paraphilic Disorders”, theravive <https://www.theravive.com/therapedia/voyeuristic-disorder-dsm 5-302.82(f65.3)#:~:text=According%20to%20DSM%205%2C%20hyper,comorbid%20conditions%20of%20Voyeuristic %20Disorder> accessed on 21 July 2025

38 International Classification of Diseases, 11th Revision, World Health Organisation <https://icd.who.int/browse/2025-01/mms/en#1630268048>

39 Interview with Rajesh Jacob, Doctor, Promises Healthcare.

40 Chong Hou En at [61].

looking for a disorder to conveniently scapegoat the threshold for diagnosis of a CSBD is deliberately high.

To illustrate the threshold for distress, we turn to the Singaporean and Canadian (respectively) judgements of R v Legault 41 and Dr Sim Choon Seng, 42 both of which sentence offenders suffering from CSBD. For R v Legault, the accused was a pastoral intern at a church in Ontario. He was charged with catfishing, making and possessing child pornography, Internet stalking and an unsolicited masturbation video.43 While the British Columbian court did not have the opportunity to delve into the psychopathy of CSBDs, the court considered the frequency of his indulgence in pornography and his history with pornography consumption to understand the impact of the CSBD on his ability to function.44 He was first exposed to pornography at the age of seven, and his pornography consumption continued to become more frequent and more deviant.45 The extent of his distress was so significant he testified that he would “think about it in the morning and plan when I could do it... I'd masturbate from one to three times a day".”46 Interestingly, the court did not consider his premeditative efforts as adding towards culpability due to the severity of the disorder. It is salient that the Canadian courts did not see his premeditation as necessarily indicative of the accused’s presence of mind to intentionally commit the act, as this stance differs from the court’s opinion in Singapore. In the end, the court considered in totality the severity of his disorder and his demonstration of remorse and attempts to reform to rule that rehabilitation ought to be the predominant sentencing principle.

Dr Sim Choon Seng is helpful for us to understand how the courts would factor the formal diagnosis of CSBD into the sentencing consideration. In Dr Sim Choon Seng, the accused was convicted for twenty counts of intruding upon the privacy of unknown females and one count of possession of obscene films. At the time of sentencing, he was in remission from voyeuristic disorder for at least three years and was diagnosed with late onset persistent depressive

41 R v Legault [2024] BCJ No 346, 2024 BCPC 29, [2024] BCJ No 346

42 In the Matter of Dr Sim Choon Seng [2021] SMCDT 1 (“Dr Sim Choon Seng”).

43 R v Legault at [1].

44 R v Legault at [60]-[67].

45 R v Legault at [62].

46 R v Legault at [63].

disorder.47 The medical report also highlighted that his behaviour was a response to long-term stress and untreated persistent depressive disorder. 48 While the judgement does not reflect personal testimony about the extent of his struggles (as the offender did in R v Legault), the court did take into consideration of the close relation of his past disorders and the comorbidity of the depressive disorder to assess his culpability. With the assurance of long-term psychiatric treatment, the disciplinary tribunal then decided it was appropriate to give a downward adjustment of his sentence. They calculated the duration of his sanction to last for 14 months,49 a slight downward discount from the starting point of 16 months, in order to still accurately reflect his culpability. 50 It should be noted that the Singaporean courts have not had the opportunity to consider expert evidence on CSBDs, as there are only two reported judgements which consider offenders diagnosed with CSBD (including the matter of Dr Sim Choon Seng). The other is a 2023 High Court judgement where the offender’s diagnosis of CSBD failed to hold any mitigatory weight due to insufficient expert evidence that it operated on his mind to affect his control over his actions.51 At this juncture, we would propose that a formal diagnosis of CSBD necessitate a rehabilitative focus, as the link between the disorder and the offender’s ability to control their behaviour is clearer.

With this in mind, we have set out the various permutations in the table below for clarity:

Category of persons who commit voyeuristic behaviours

Behavioural

47 Dr Sim Choon Seng at [4c].

48 Dr Sim Choon Seng at [4c].

49 Dr Sim Choon Seng at [35].

50 Dr Sim Choon Seng at [28]-[29].

51 Public Prosecutor v CEJ [2023] SGHC 169 at [26].

II. Judicial perspectives on sentencing for mental disorders

(A) Sentencing general psychiatric disorders

Now that we have addressed the scientific opinion surrounding the associated disorders, we turn to broadly understand how the courts decide on the predominant sentencing consideration for mentally-disordered offenders.

(1) Singapore

The courts in Singapore have generally acknowledged that there is tension between the principles of specific and general deterrence on one hand, and rehabilitation on the other when it comes to sentencing a mentally disordered offender.52 These are the relevant principles as set out by the High Court in Chong Hou En:

(a) The existence of a mental disorder on the part of the offender is always a relevant factor in the sentencing process;

(b) The manner and extent of its relevance depends on the circumstance of each case, in particular, the nature and severity of the mental disorder;

(c) The element of general deterrence may still be accorded full weight in some circumstances, such as where the mental disorder is not serious or is not causally related to the commission of the offence, and the offence is a serious one;

(d) In spite of the existence of a mental disorder on the part of the accused, specific deterrence may remain relevant in instances where the offence is premeditated or where there is a conscious choice to commit the offence;

(e) If the serious psychiatric condition or mental disorder renders deterrence less effective, where for instance the offender has a significantly impaired ability to appreciate the nature and quality of his actions, then rehabilitation may take precedence;

52 Lim Ghim Peow v Public Prosecutor [2014] 4 SLR 1287 at [26].

(f) Even though rehabilitation may be a relevant condition, it does not necessarily dictate a light sentence. The accused could also be rehabilitated in prison;

(g) Finally, in cases involving particularly heinous or serious offences, even when the accused person is labouring under a serious mental disorder, there is no reason why the retributive and protective principles of sentencing should not prevail over the principle of rehabilitation. 53

While the court places emphasis on the need to rehabilitate the offender, it seems that the consideration of public good may outweigh the principle of rehabilitation.

(2) UK

In the UK, there are two sets of legislation which covers sentencing of offenders with mental disorders. The first is the Sentencing Act 2020 which consolidates enactments relating to sentencing.54 Section 232 specifically provides for requirements that judges must fulfil in cases involving offenders suffering from mental disorders.

Sections 232(2) and 232(3) read:

(2) Before passing the sentence, the court must obtain and consider a medical report unless, in the circumstances of the case, it considers that it is unnecessary to obtain a medical report.

(3) Before passing the sentence, the court must consider

(a) any information before it which relates to the offender's mental condition (whether given in a medical report, a pre-sentence report or otherwise), and

(b) the likely effect of such a sentence on that condition and on any treatment which may be available for it.

53 Chong Hou En at [24].

54 Sentencing Act 2020 (c 17) (UK) Introduction

The second piece of legislation is the Mental Health Act 1983 which consolidates the law relating to mentally disordered persons.55 The relevant parts of section 37 read:

(1) Where a person is convicted…with imprisonment other than an offence the sentence for which is fixed by law, … and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order…

(2) The conditions referred to in subsection (1) above are that

(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental disorder and that

(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and appropriate medical treatment is available for him; and

(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section. 56

While the principles of sentencing are not explicitly addressed in the provisions, it seems that the court is likely to grant a formal diagnosis some mitigatory weight, and are especially careful to protect the public and offender to prevent the criminal conduct from reoccurring.

(3) Canada

In Canada, the court in R v Manyshots [2018] AJ No. 87 explains that “it is clear that a sentence can be reduced on psychiatric grounds in two instances: (1) when the mental illness contributed to or caused the commission of the offence; or (2) when the effect of imprisonment or any other penalty would be disproportionately severe because of the offender's mental illness”. 57

55 Mental Health Act 2020 (c 20) (UK) Introduction

56 Mental Health Act 2020 (c 20) (UK) s 37(1) and 37(2)

57 R v Manyshots [2018] AJ No. 87 at [59].

Accordingly, where an accused is suffering from a mental health disorder, the weight to be given to general deterrence as a sentencing principle may be reduced because such an offender is not an appropriate medium for making an example to others.58

However, it should be noted that this is subject to the sentencing judge’s discretion to decide which objectives of sentencing are the weightiest, given the particular facts of the case.59 There is a great emphasis on achieving proportionality in sentencing in Canadian courts, where “the fundamental principle of sentencing set out in the Criminal Code is proportionality. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Indeed, this is the only mandatory principle of sentencing.”60

(4) Comparison of jurisdictions

Across the three jurisdictions, the most striking difference would be the fact that only the UK has a sentencing code to codify sentencing principles relating to mentally disordered offenders while Singapore and Canada rely on precedence within caselaw to set out their guidelines. Considerations that need to be taken are more clearly set out in the UK with caselaw available to interpret the statute and provide guidance as to how each section should be read. An example would be the case of R v Vowles [2015] 1 WLR 5131 in which the judge explained what a sentencing judge should consider where an offender suffered from a mental disorder.61

Moreover, the UK is also the only jurisdiction which has a formal sentencing guideline specifically for offenders with mental disorders. The Sentencing Council Guideline, effective from 1 October 2020, was prepared to promote consistency in sentencing, while maintaining independence of the judiciary as it is not binding on the courts.62 At best, it is persuasive and must be consulted pursuant to section 59(1) of the Sentencing Act 2020. 63 Singapore and

58 R v Manyshots [2018] AJ No. 87 at [61].

59 R v Germain [2022] AJ No. 913 at [70].

60 R v Courtoreille [2017] AJ No. 943 at [45]; Criminal Code, RSC 1985, c C-46 (Can) s 718.1

61 R v Vowles [2015] 1 WLR 5131 at [51].

62 Pamela J. Taylor et al. “Sentencing offenders with mental disorders, developmental disorders or neurological impairments: what does the new Sentencing Council Guideline mean for psychiatrists?” (2021) 218: 299 The British Journal of Psychiatry at p 299

63 Sentencing Act 2020 (c 17) (UK) s 59(1)

Canada do not have such comprehensive guidelines that must be followed. Instead, both jurisdictions rely on precedence, and both require courts to look for the causal link between the disorder and the act done.

All three jurisdictions do look at appropriateness and effect of the punishment on the mentally disordered offender, considering the individual characteristics of the offender and the disorder. Singapore explicitly weighs the principle of deterrence to the effect of it; the UK considers the appropriateness of non-custodial punishments against other sentencing options; while Canada’s approach is one which clearly emphasises proportionality of the severity of the punishment and the mental disorder.

(B) Specifically, how does VD or related disorders affect sentencing for voyeuristic offences?

The way the court interprets voyeuristic disorders directly influences the extent to which a formal diagnosis may be considered as a mitigating factor in sentencing. For an examination of what role a formal diagnosis of VD plays in sentencing, we turn to the Singaporean High Court case of Chong Hou En. The UK and Canada do not have a judgement that similarly discusses the aetiology nor expert opinion on voyeuristic disorders and the subsequent impact on sentencing. For the UK and Canada, we will instead examine how the courts factored in the presence of related disorders in sentencing voyeuristic offenders.

(1) Singapore

In Chong Hou En, the accused was arrested when he attempted to up-skirt a woman in public by gluing a camera onto his shoe and placing his foot underneath her skirt. Upon further investigation, the police discovered that he had also filmed four of his girlfriend’s family members in the shower using a camera disguised as a lighter.64 He was charged with five counts of insulting the modesty of a woman by intruding upon her privacy under Section 509 of the PC and was given a probation order within the lower court on account of his diagnosis of voyeuristic disorder. Prosecution appealed on the grounds that the sentence seemed manifestly

64 Chong Hou En at [3], [4] and [6].

inadequate, and that his disorder did not incapacitate his ability to control himself and prevent the acts of voyeurism from continuing.

In the appeal to the High Court, Chan Seng Onn J accepted the evidence of The Prosecution’s psychiatrist, Dr Stephen Phang (“Dr Phang”). Dr Phang unequivocally opined that while there is some form of sexual impulsivity, the impulsivity is symptomatic of the paraphilic disorder, rather than an impulse control disorder. 65 Impulsivity is understood as a rapid and sudden expression of unplanned behaviour, and there must be an irresistible urge to act.66 Dr Phang argues that the level of substantially different from the behaviour observed within most voyeurs, who plan extensively to facilitate the filming or observation of private acts.67 He concluded that voyeuristic disorder is a perverse behavioural option borne out of sexual deviance,68 that a person chooses to participate in that deliberately and wilfully intrudes into the inviolable sanctity and privacy of others. As such, the court chose to reject according mitigatory weight to the accused’s disorder.

The High Court in Chong Hou En specifically considered factors such as the causal link, the nature and severity of the mental disorder and the offender’s ability to make conscious choices and to appreciate the nature and quality of his actions in deriving the appropriate sentencing principle.69 It should be noted that the court declined to use the concept of the causal link between the mental disorder and the offending conduct to prove that the disorder ought to hold mitigatory weight. Instead, they preferred to look at the nature of the disorder and whether the individual had capacity to control themselves from committing the criminal acts.70 At present, the Singaporean courts do not agree that the nature of VD is sufficient to affect the accused’s control over their act, which is why the primary sentencing principle remains as deterrence.

65 Chong Hou En at [40].

66 Chong Hou En at [40].

67 Chong Hou En at [40].

68 Chong Hou En at [37].

69 Chong Hou En at [26].

70 Chong Hou En at [27].

(2) UK

In the UK, there is no precedent for whether voyeuristic disorders can be used as a mitigating factor. For voyeuristic offences tried in the UK, there are cases where the individual has a preexisting developmental disorder 71 or psychotic disorder that has manifested in voyeuristic behaviour.72 It seems more symptomatic of a primary disorder. Regardless, we can look at how the presence of a disorder affects findings of culpability for voyeuristic offences in the UK.

In R v B [2012] 3 All ER 1093, the offender stuck his head through the gap at the bottom of the changing room door and observed a six-year-old boy changing his swimming trunks. When asked why, he stated that he was lying on his back in the adjoining cubicle because his back hurt. It was later discovered by the investigating authorities that the accused suffered from a learning disability and an autism spectrum disorder in the form of Asperger’s Syndrome. The lower court did not feel it appropriate for the offender to stand trial nor plead, and directed the jury to a finding of whether he committed the act. The judge subsequently imposed on the defendant a two-year supervision order and a Sexual Offences Prevention Order for a period of five years (the “SOPO”). While the case did not directly hold or comment on how his disorder culminated in the voyeuristic act, the presence of a developmental disorder is likely to indicate incapacity to form the relevant mens rea for the act. What is salient is that the lower court judge still meted out a preventive and rehabilitative sentence without a deterrent custodial element.

(3) Canada

In Canada, there seems to be a two main types of sentences imposed on voyeurs, disregarding the presence of a voyeuristic disorder – firstly, offenders with low risk of recidivism and secondly, offenders with moderate risk of recidivism. Those with low risk often face a conditional sentence, which are sentences served in the community.73 However, conditional sentences are deemed inappropriate for those with moderate risk as they put the community at

71 R v B [2012] 3 All ER 1093 at [6].

72 R v S (M) [2015] EWCA Crim 680 at [10]-[12].

73 R v Proulx [2000] 1 SCR 61 at [21].

risk, and it does not express the denunciation necessitated by the offence which only jail can express.74

In now considering the effect of a voyeuristic disorder on these sentencing principles, we look at the law applied in a few cases.

In R v DW [2016] OJ No. 7401, the court observed that based on the extensive assessment done by a forensic psychiatrist, the offender had a moderate risk to re-offend, particularly because it related to his voyeuristic disorder. Therefore, the court, taking other facts into account, sentenced the offender to 18 months’ imprisonment after deeming a conditional sentence inappropriate as it would fail to strike the right balance in emphasising the principles of denunciation and deterrence.75 There was no mention of any sort of therapy or rehabilitation being offered to the offender.

In the case of R v CWG [2024] ABCJ 52, the offender was diagnosed with voyeuristic disorder. Over three and a half years, the offender surreptitiously photographed his stepdaughter. These photos included her breasts, buttocks and labia regions while she was wearing tight clothing. Some photographs also included her naked. After considering the sentencing principles, the court held that since the offender knew there was help available but chose not to reach out to the service, it demonstrated his clear demonstration of a lack of insight in this area leading to a concern as to how he would manage seeking actual treatment for his disorder on his own. As a result, this warranted an imprisonment order as there are specialised treatment programs available in custody which the court recommended to be appropriate for the offender, allowing him to serve his sentence in a correctional facility that provides such treatment. In addition to such programmes in custody, and to support the rehabilitative aspect of the sentence, the court held that the offender would have a 24-month term of probation to support him in obtaining and completing treatment upon release from custody.76 Evidently, this case presents a more rehabilitative stance taken towards offenders with voyeuristic disorders, combined with the

74 R v DW [2016] OJ No. 7401 at [105].

75 R v DW [2016] OJ No. 7401 at [104].

76 R v CWG [2024] ABCJ 52 at [57].

necessary custody term required, thus emphasising the balance between the principles of rehabilitation as well as denunciation and deterrence, based on the facts of this specific case.77

(C) Our proposed sentencing framework

Voyeuristic Behaviours

Voyeuristic Disorder Disorders (commonly comorbid with voyeuristic disorders)

Disorders with manifestations of voyeuristic behaviour Compulsive Sexual Behaviour Disorder (“CSBD”)

Sentencing Focus Deterrence Rehabilitation Rehabilitation Rehabilitation Rehabilitation

Before proceeding, we first note that in matters of sentencing offenders with mental conditions, the courts are vested with the requisite sentencing discretion, as long as their decision is within the confines of the law.78 We humbly submit that this is an instance where judicial mercy and rehabilitation should supersede the more goal-driven principles of deterrence and retribution.

Firstly, the psychopathy behind the disorders affecting voyeuristic tendencies has evolved to demonstrate that deterrence may not be sufficient to ward off offending or reoffending. Deterrence is an effective consideration for non-disordered offenders (i.e those who only demonstrate voyeuristic behaviours), because there is nothing operating and influencing their ability to control their actions. This would be similar to the principle (c)79 – general deterrence applies if there is no causal link. Low Ji Qing reminds us that “specific deterrence may not be a relevant consideration when sentencing mentally disordered offenders”80 because specific deterrence “assumes that a potential offender can balance and weight consequences before committing an offence.” 81 This is especially true with individuals who suffer from CSBD, which largely or almost completely incapacitates the offender. This is not to say that deterrence

77 R v CWG [2024] ABCJ 52 at [14].

78 Public Prosecutor v Goh Lee Yin [2005] SGHC 226 at [61].

79 See sentencing principles for mentally-disordered offenders above at Section II(A)(1).

80 Low Ji Qing at [64].

81 Low Ji Qing at [64].

can never be the predominant consideration, but rather that its exercise must be appropriate.82 With a solely deterrent focus, the focus is on disincentivising the offender with threat of heavier punishment without targeting the cause.83 Where deterrence should be employed is at a later juncture for offenders within the four categories of disorders which have rehabilitation as the suggested predominant principle – for example, if the offender has offended very severely over a long duration, or if the offender has reoffended. There, the gravity of the index offence becomes more important in the calculus of the sentence and specific deterrence should be appropriately employed to ensure a proportionate sentence.

Secondly, there is effective treatment available to the offenders. The courts are clear that rehabilitation is essential to reduce reoffending, and should be employed where there is treatment suitable for the offender operating under a “serious psychiatric condition or mental disorder”. 84 Drugs like fluoxetine and paroxetine have been successful in lowering the frequency of voyeuristic urges and reducing the intensity of the urges and thoughts.85 Cognitive behavioural therapy is also helpful in correcting the mindsets of individuals struggling with voyeuristic tendencies as a form of longer term treatment If the root cause of the problem is found to be a mental disorder, exercising judicial discretion to ensure that the offender receives treatment after sentencing is vital. The employment of community based sentencing orders such as Mandatory Treatment Orders (“MTO”) or even short detention orders (“SDO”) may be more helpful than a long custodial sentence in tackling the root cause. When we consulted Dr Rajesh, he mentioned that voyeurs are often fearful of the stigma around seeking diagnosis and treatment. Having the force of the law behind the order will allow the offender access to treatment regardless of their individual sentiments, which should result in increased rehabilitation of offenders and eventually, lower offending rates. At this juncture, we would like to respectfully reemphasise the concern Chief Justice Menon raised in Low Ji Qing the current MTO regime “precludes accused persons who had previously been sentenced to terms of corrective training or preventive detention from benefitting from an MTO” if they had not

82 See sentencing principle (d) for mentally-disordered offenders above at Section II(A)(1).

83 Low Ji Qing at [57].

84 Chong Hou En at [37].

85 Ahmed Abouesh and Anita Clayton “Compulsive Voyeurism and Exhibitionism: A Clinical Response to Paroxetine” (1999) 28(1) Archives of Sexual Behaviour 23 and Hatta Sidi and Marhani Midin, “Voyeurism with sexual fantasy on female body parts: a subtype of obsessive compulsive disorder? – a case report” (2008) 17(1) Malaysian Journal Of Psychiatry 88

been formally diagnosed at the time of their previous conviction.86 This is essential to enable the treatment of more voyeuristic offenders.

Lastly, rehabilitation would be a more proportionate response to avoid the offender becoming a “scarecrow”. With the advent of voyeurism cases, various governments introduced legislation with heavy and deterrent penalties to signal a strong stance against such offences. While this may help to bolster public confidence in the justice system, it often comes at the cost of treating offenders merely as instruments for deterrence rather than as individuals capable of reform.87 A purely punitive approach risks side lining the rehabilitative needs of those who offend due to underlying psychological disorders, and may result in recidivism rather than meaningful behavioural change. The court in Low Ji Qing remarked that the principle of proportionality applies in the comparison between the severity of the sentence imposed for the index offence and gravity of the offence.88 While the harm incurred is of course great, the sentence cannot overpower the offender’s ability to make reparations and reintegrate into society.89

III. Legislation governing voyeurism

(A) Evolution of existing legislation and its controversies

It is a trite proposition that the law is effective when it is reactive to the changes in society. In previous years, the courts have had to rely on a patchwork of laws to prosecute voyeuristic offences. In pre-2019 Singapore, the Prosecution would use the now-repealed Section 509 provision regarding the insult of modesty in the Penal Code (“Singapore PC”), and possession of obscene films under Section 30 of the Films Act 1981 to punish voyeurs.90 The state of the law was then addressed by Minister K. Shanmugam during a Parliamentary debate that this patchwork of laws did not “adequately address the range of offences involving voyeuristic recordings and the distribution of such material on the Internet”. 91 This amendment was

86 Low Ji Qing at [96].

87 Low Ji Qing at [80].

88 Low Ji Qing at [77].

89 Low Ji Qing at [81].

90 Nicholas Tan Siew Chye v Public Prosecutor [2023] 4 SLR 1223 (“Nicholas Tan”) at [4].

91 Singapore Parliamentary Debates, Official Report (6 May 2019) vol 94. (K Shanmugam, Minister for Home Affairs) at p 49

supported by the current Chief Justice, Sundaresh Menon, in the case of Nicholas Tan. 92 In response, Parliament made amendments to the Singapore PC to include a new Section 377BB in 2019 to properly define the offending behaviour of voyeurism and to provide sufficient punishments.93 Significant changes include the doubling of the maximum imprisonment term from one year under the insult of modesty of a woman provision, Section 509 in the SG PC which voyeurism offences were previously prosecuted under, to two years in Section 377BB(7) of the SG PC.94 By increasing the penalty for voyeuristic offences, Parliament hoped to send a strong deterrent signal to current and potential offenders.95

The legislation in the UK has also evolved well. Similarly to Singapore, they began to dispense with using a patchwork of laws to penalise voyeuristic offences through the creation of the Sexual Offences Act (2003) (“UK SOA”).96 Since then, British Parliament has continued to introduce new legislation that expands the law in response to the emerging forms of voyeuristic behaviour. Notably, there was the Voyeurism (Offences) Act in 2019, which amended Section 67 of the SOA 2003. 97 This section focuses specifically on the offence of “upskirting” and “downblousing”. This was especially concerning with the increasing access to technology that heightened the capabilities and functions of discretely hidden cameras to record others engaging in private acts.98 Most recently, there was the introduction of the Police, Crime, Sentencing and Courts Act 2022 (“PCSCA 2022”), which included amendments responsive to the “Stop the Breast Pest” campaign by a Member of Parliament (“MP”), Ms Stella Creasy.99 While on the train, Ms Creasy was breastfeeding her four-month-old infant when she noticed a young teenage boy snapping photos of her with his iPhone. Sharing her experience with the public, she learned that there were many others who had encountered similar violations of their right

92 Nicholas Tan at [4].

93 Singapore Parliamentary Debates, Official Report (6 May 2019) vol 94.

94 Nicholas Tan at [48].

95 Singapore Parliamentary Debates, Official Report (6 May 2019) vol 94. (Mr Patrick Tay Teck Guan, West Coast MP) at p 63

96 Sexual Offences Act 2003 (c 42) (UK)

97 Voyeurism (Offences) Act 2019 (c 2) (UK) s 1

98 Singapore Parliamentary Debates, Official Report (6 May 2019) vol 94. (Ms Yip Pin Xiu, Nominated Member) at p 54

99 “‘Stop the Breast Pest’: MP’s ‘horror’ at being photographed while breastfeeding” The Guardian <https://www.theguardian.com/lifeandstyle/2021/may/01/labour-mp-stella-creasy-horror-photographed-whilebreastfeeding-prompts-campaign> (1 May 2021)

to privacy. 100 In response, the PCSCA 2022 introduced an addition to Section 67A that prosecutes the operation of equipment to observe, record and/or enable another person to observe a person breastfeeding.101 This provision applies as long as there is no consent from the person breastfeeding,102 but the provisions regarding the exceptions in Section 67A(3B) are especially restrictive:

“It is irrelevant for the purposes of subsections (2A) and (2B)

(a) whether or not B is in a public place while B is breast-feeding the child, (b) whether or not B’s breasts are exposed while B is breast-feeding the child, and (c) what part of B’s body

(i) is, or is intended by A to be, visible in the recorded image, or (ii) is intended by A to be observed.” 103

The restrictiveness does not restrain the law from preventing offenders from exploiting loopholes that would allow them to get off scot-free. Section 67A(3B)(c) is a fine example of such a loophole; the accused could claim that they could not see anything in the recording and therefore did not commit voyeurism. Interestingly, the drafting of the legislation also displaces any blame from the victim across the jurisdictions, legislation enacted protects victims who are conducting private acts (e.g changing in a locker room,104 showering) or intrusions upon their parts of their body already concealed or normally out of sight.

Breastfeeding voyeurism has a different dimension compared to most acts observed by voyeurs, as the victim’s body is more likely to be voluntarily exposed during the natural act of feeding an infant particularly in public spaces. Yet, the legislation deliberately affirms that a mother’s choice to breastfeed, whether in public or with some degree of exposure, should not be an

100 “‘Stop the Breast Pest’: MP’s ‘horror’ at being photographed while breastfeeding” The Guardian <https://www.theguardian.com/lifeandstyle/2021/may/01/labour-mp-stella-creasy-horror-photographed-whilebreastfeeding-prompts-campaign> (1 May 2021)

101 Sexual Offences Act 2003 (c 42) (UK) ss 67A(2A), (2B)

102 Sexual Offences Act 2003 (c 42) (UK) s 67(2A)

103 Sexual Offences Act 2003 (c 42) (UK) s 67A(3B)

104 R v B [2012] 3 All ER 1093

excuse to intrude upon their privacy. This principle was strongly championed by MPs, who also emphasised the public health benefits of breastfeeding for both mother and child.105 This also marked an important moment for the law to reaffirm women’s autonomy and dignity the judgement in R v Jarvis [2019] SJC No. 10 puts it well: “Privacy is not an “all-or-nothing” concept… simply because a person was in circumstances they could not expect complete privacy did not mean that they waived all expectations of privacy.”106 Regardless, there were valid concerns raised by certain MPs about the propensity that the law could overreach due to the overinclusive drafting. For example, the provision would penalise a person taking a photo of something else with a breastfeeding mother accidentally in the background. The final legislation does take this into account by legislating that the person taking the photos must intend to obtain sexual gratification 107 or to humiliate, alarm or cause distress to the breastfeeding mother.108

This example of legislating breastfeeding voyeurism demonstrates the balance struck here between protecting victims and clear, proportionate drafting. Breastfeeding is not a UKspecific practice and there is a possibility for breastfeeding voyeurism to occur in other jurisdictions. We are alive to the conflict between advocating for more inclusive legislation against voyeuristic conduct, and the possibility of creating unwarranted culpability for individuals. The way toward against a disproportionate balance between the two priorities is to continue engaging with voices from the ground, including those of victims and those in law enforcement, to ensure the law remains adequately responsive and protective of those who have suffered harm. Justice must not only be done but must be seen to be done, 109 especially concerning sensitive matters of intrusions into personal autonomy. Additionally, while the law

105 UK, Police, Crime, Sentencing and Courts Bill (3 Nov 2021), Volume 815 at 1258 < https://hansard.parliament.uk/Lords/2021-11-03/debates/5311B2A0-EF1E-404F-AF74A7ED540B04DE/PoliceCrimeSentencingAndCourtsBill> (Baroness Hayman, Crossbench)

106 R v Jarvis [2019] SJC No. 10 at [61].

107 Sexual Offences Act 2003 (c 42) (UK) s 67A(3)(a)

108 Sexual Offences Act 2003 (c 42) (UK) s 67A(3)(a)

109 “Chief Justice Sundaresh Menon: Speech delivered at Conversations with the Community on 20 September 2024” SG Courts <https://www.judiciary.gov.sg/news-and-resources/news/news-details/chief-justice-sundareshmenon speech-delivered-at-conversations-with-the-community-on-20-september-2024> (20 September 2024) at para 13; “Speech by Mr Justice Cobb: ‘Justice must be seen to be done’” Courts and Tribunals Judiciary <https://www.judiciary.uk/speech-by-mr-justice-cobb-justice-must-be-seen-to-be-done/> (16 October 2024)

should be inclusive, there should be sufficient safeguards to exonerate those wrongfully convicted of a crime.

For completeness, it should be noted that Canada has not chosen to adapt a similar approach to that in the UK and Singapore. The last legislative amendment to the law on voyeurism was in 2005 when they enacted Section 162 in the Canadian Criminal Code (“Canada CC”).110

(B) An examination of the legislation on voyeuristic offences across Singapore, UK and Canada

We now turn to an examination of the current law into the three broad types of conduct that infringe upon a person’s expectation of privacy whether in relation to their body or while engaging in private acts:

(a) using equipment to observe or record the person,

(b) making a recording of the person, and

(c) using or setting up equipment to allow another person to observe the individual.

(1) Offence of using equipment to observe private act or private parts

For this sub-header, the relevant provisions are Section 377BB(2) and (4) of the Singapore PC, Section 67A(1) and Section 67A(2A) of the UK SOA and Section 162(1) read with Section 162(2) of the Canadian CC Singapore PC (Sections 377BB(2) and 377BB(4))

(2) Any person (A) shall be guilty of an offence who

(a) operates equipment with the intention of enabling A or another person to observe a third person (B) doing a private act without B’s consent; and

110 Criminal Code, RSC 1985, c C-46 (Can) s 162

(b) knows or has reason to believe that B (whether B’s private act was recorded or not) does not consent to A operating equipment with that intention.

(4) Any person (A) shall be guilty of an offence who

(a) operates equipment without another person’s (B) consent with the intention of enabling A or another person (C) to observe B’s genital region, breasts if B is female, or buttocks (whether exposed or covered) in circumstances where the genital region, breasts, buttocks or underwear would not otherwise be visible; and

(b) knows or has reason to believe that B (whether B’s image was recorded or not) does not consent to A operating the equipment with that intention.111

UK SOA (Sections 67A(1) and 67A(2A))

(1) A person (A) commits an offence if

(a) A operates equipment beneath the clothing of another person (B),

(b) A does so with the intention of enabling A or another person (C), for a purpose mentioned in subsection (3), to observe

(i) B's genitals or buttocks (whether exposed or covered with underwear), or

(ii) the underwear covering B's genitals or buttocks, in circumstances where the genitals, buttocks or underwear would not otherwise be visible, and

(2A) A person (A) commits an offence if

(a) A operates equipment,

(b) A does so with the intention of enabling A or another person (C), for a purpose mentioned in subsection (3), to observe another (B) while B is breast-feeding a child, and

(c) A does so

111 Penal Code 1871 (2020 Rev Ed) ss 377BB(2), (4)

(i) without B’s consent, and

(ii) without reasonably believing that B consents.112

Canada CC (Section 162(1), read with Section 162(2))

Section 162(1) reads:

Everyone commits an offence who, surreptitiously, observes including by mechanical or electronic means or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if:

(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;

(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or

(c) the observation or recording is done for a sexual purpose.113

Section 162(2) reads:

In this section, visual recording includes a photographic, film or video recording made by any means114

The mens rea for the offence of using equipment to observe private acts or private parts largely seems to be intention or knowledge, and there is no significant deviance across the wording across the jurisdictions’ statutes. In Singapore, they provide for three forms of mens rea, and the statute even goes so far to permit the use of an alternative construction of knowledge, in

112 Sexual Offences Act 2003 (c 42) (UK) ss 67A(1), 67A(2A)

113 Criminal Code, RSC 1985, c C-46 (Can) s 162(1)

114 Criminal Code, RSC 1985, c C-46 (Can) s 162(2)

this case being “reason to believe”. The threshold to satisfy this requirement is lower than certainty but higher than speculation115 all the Prosecution needs to do is to prove that the accused, with the subjective understanding of his circumstances, objectively would have been able to infer about a fact from what he already knew.116 This also lowers the evidential burden for the Prosecution, which makes it easier to charge the individual as long as it can be proved that the individual should have known. In Canada, the mens rea is not as explicitly stated but they seem to have two forms. From the wording of Section 162(1) and Section 162(1)(a), “reasonable expectation of privacy” and “reasonably be expected to be nude”, the state of mind seems to be knowledge. Sections 162(1)(b) and (c) suggest that for observing or recording, there must be that specific intention to catch the person in a vulnerable state or doing explicit sexual activity, or just an intention to capture an image or video for a sexual purpose. The UK has the narrowest mens rea with the threshold being solely intention. The other salient observation here is that only the Singapore and UK jurisdictions expressly criminalises nonconsensual observation of an individual doing a private act, even without the use of equipment.117 While the harm of visual observation is ostensibly lower than a recording, it is necessary to have provisions capturing this conduct.

(2) Offence of making a recording to observe private act or private parts

For this sub-header, the relevant provisions are Section 377BB(3) and (5) of the Singapore PC, Section 67(3), Section 67A(2) and Section 67A(2B) of the UK SOA and Section 162(1) read with Section 162(2) of the Canada CC.

Singapore PC (Sections 377BB(3) and (5))

Section 377BB(3) reads:

Any person (A) shall be guilty of an offence who:

(a) intentionally or knowingly records another person (B) doing a private act without B’s consent; and

115 Nomura Taiji and others v Public Prosecutor [1998] 1 SLR(R) 259 at [70]-[72].

116 Penal Code 1871 (2020 Rev Ed) s 26

117 Penal Code 1871 (2020 Rev Ed) s 377BB(1); Sexual Offences Act 2003 (c 42) (UK) s 67(1)

(b) knows or has reason to believe that B does not consent to A recording the act.118

Section 377BB(5) reads:

Any person (A) shall be guilty of an offence who –

(a) intentionally or knowingly records without another person’s (B) consent an image of B’s genital region, breasts if B is female, or buttocks (whether exposed or covered), in circumstances where the genital region, breasts, buttocks or underwear would not otherwise be visible; and

(b) knows or has reason to believe that B does not consent to A recording the image.119

UK SOA (Section 67(3), Section 67A(2) and Section 67A(2B))

Section 67(3) reads:

A person commits an offence if

(a) he records another person (B) doing a private act,

(b) he does so with the intention that he or a third person will, for the purpose of obtaining sexual gratification, look at an image of B doing the act, and

(c) he knows that B does not consent to his recording the act with that intention.120

Section 67A(2) reads:

A person (A) commits an offence if

(a) A records an image beneath the clothing of another person (B),

118 Penal Code 1871 (2020 Rev Ed) s 377BB(3)

119 Penal Code 1871 (2020 Rev Ed) s 377BB(5)

120 Sexual Offences Act 2003 (c 42) (UK) s 67(3)

(b) the image is of

a. B's genitals or buttocks (whether exposed or covered with underwear), or

b. the underwear covering B's genitals or buttocks,

in circumstances where the genitals, buttocks or underwear would not otherwise be visible,

(c) A does so with the intention that A or another person (C) will look at the image for a purpose mentioned in subsection (3), and

(d) A does so

a. without B's consent, and

b. without reasonably believing that B consents.121

Section 67A(2B) reads:

A person (A) commits an offence if

(a) A records an image of another (B) while B is breast-feeding a child,

(b) A does so with the intention that A or another person (C) will look at the image for a purpose mentioned in subsection (3), and

(c) A does so

a. without B’s consent, and

b. without reasonably believing that B consents.122

Canadian CC (Section 162(1), read with Section 162(2))

Section 162(1) reads:

121 Sexual Offences Act 2003 (c 42) (UK) s 67A(2)

122 Sexual Offences Act 2003 (c 42) (UK) s 67A(2B)

Everyone commits an offence who, surreptitiously, observes including by mechanical or electronic means or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if:

(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;

(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or

(c) the observation or recording is done for a sexual purpose.123

Section 162(2) reads:

In this section, visual recording includes a photographic, film or video recording made by any means.124

The mens rea across all three jurisdictions continues to be contained within intention and various degrees knowledge. In Singapore, it is maintained as intention, knowledge and reason to believe. The mens rea analysis for the Canadian statute remains as above, as the same provision is used. The interesting difference is that for the UK, in the most recently enacted amendment in Section 67A(2B), they now include “without reasonably believing” as a form of the requisite state of mind. This specific phrase is only used in legislation surrounding sexual offences, and the threshold for this state of mind has only been tested once in the judgement of R v Okenarhe (Michael Stephens) [2011] EWCA Crim 616. In this matter, the accused was appealing the admission of evidence of his previous convictions for sexual activity with a child in the present matter. In the present, he was accused of touching a 15-year-old boy in a sexual manner on two occasions and was also dealt two charges of encouraging the commission of the offence of kidnapping and blackmail. The judge, Sir Anthony May, used his previous

123 Criminal Code, RSC 1985, c C-46 (Can) s 162(1)

124 Criminal Code, RSC 1985, c C-46 (Can) s 162(2)

convictions as evidence that the accused had a propensity to engage in sexual activity with children, and so it was likely that this act of touching the 15-year-old was conducted without reasonably believing this boy was of age. 125 From this, we infer that “without reasonably believing” is then similar to the Singaporean threshold of “having reason to believe”. British Parliament is likely to have expanded the mens rea for recording images or videos of breastfeeding mothers for two reasons: the significant number of related complaints coming forward in support of the Bill, 126 and to reduce the evidentiary burden for charging the individuals. There was a lot of outrage that breastfeeding voyeurism would not have been considered a crime, and this would be an efficient way to resolve that issue and bring justice for the victims.127

(3) Offence of installing equipment or constructing/adapting structure

For this sub-header, the relevant provisions are Section 377BB(6) of the Singapore PC and Section 67(4) of the UK SOA

Singapore PC (Section 377BB(6))

Section 377BB(6) reads:

Any person (A) who installs equipment, or constructs or adapts a structure or part of a structure, with the intention of enabling A or another person to commit an offence under subsection (1), (2), (3), (4) or (5) shall be guilty of an offence.128

UK SOA (Section 67(4))

Section 67(4) reads:

125 R v Okenarhe (Michael Stephens) [2011] EWCA Crim 616 at [23].

126 UK, Police, Crime, Sentencing and Courts Bill (3 Nov 2021), Volume 815 at 1259 < https://hansard.parliament.uk/Lords/2021-11-03/debates/5311B2A0-EF1E-404F-AF74A7ED540B04DE/PoliceCrimeSentencingAndCourtsBill> (Baroness Hayman)

127 UK, Police, Crime, Sentencing and Courts Bill (3 Nov 2021), Volume 815 at 1258 < https://hansard.parliament.uk/Lords/2021-11-03/debates/5311B2A0-EF1E-404F-AF74A7ED540B04DE/PoliceCrimeSentencingAndCourtsBill> (Baroness Hayman, Crossbench)

128 Penal Code 1871 (2020 Rev Ed) s 377BB(6)

A person commits an offence if he instals equipment, or constructs or adapts a structure or part of a structure, with the intention of enabling himself or another person to commit an offence under subsection (1). 129

To avoid doubt, there is no counterpart within Canadian legislation that expressly addresses the offence of installing equipment or constructing/adapting structure. The closest suggestion to the installation of equipment is within Section 162(1), which states that there could be observation by “mechanical or electronic means”. The judgement in R v W.K [2025] AJ No. 320 clarifies that mechanical means refers to “being surreptitiously observed telescopically”130 or being recorded from certain angles (likely referring to electronic means). It may be prudent to consider the inclusion of this offence in the Canada CC, as it will allow Canadian law enforcement to prosecute offenders who may have set up sophisticated filming devices. This provision is especially important with the advancements in technology, which makes discrete filming devices “more sophisticated but also more readily available” for installation.131 By deterring conduct that prepares for and heavily contributes to the commissioning of the crime, the law may be able to reduce offending rates.

(4) Comparing other features of the legislation

Crucially, the Singaporean and UK legislation have presumptions that lower the evidentiary burden for the Prosecution.132 The Singaporean presumption concerning voyeuristic offences assumes that consent is not given unless proven otherwise.

Section 377BB(9) reads:

“In any proceedings for an offence under this section, where a person (A) has made a recording of another person (B) doing a private act or of B’s genital region, breasts if B is female, or buttocks (whether exposed or covered), in circumstances where the genital

129 Sexual Offences Act 2003 (c 42) (UK) s 67(4)

130 R v WK [2025] AJ No. 320 at [102].

131 Singapore Parliamentary Debates, Official Report (6 May 2019) vol 94 (Ms Yip Pin Xiu, Nominated Member) at p 54

132 Penal Code 1871 (2020 Rev Ed) s 377BB(9)

This presumption shifts the burden onto the accused person to prove that the victim consented to the observation, recording and installation of equipment or adaptation and construction of structures that enable recording. This is a necessary evil, especially because there may be instances where the voyeur may be in possession of the images but the person in the images cannot be identified.133 The presumption bypasses this evidential difficulty by just assuming that the person did not consent, which allows the accused to be charged with the offence and to mount their defence from there.134 The UK presumption similarly deals with consent,135 but their legislation narrows it down to a select few circumstances where consent was presumed not to be given, for example if violence was threatened against the complainant,136 or if the complainant was asleep or unconscious137 or due to physical disability.138

Another distinct feature is the inclusion of a joint liability element in the offences, and this is consistent across all three jurisdictions. For the UK, majority of the penal legislation includes the element of joint enterprise already, and to include it within the provisions capturing voyeuristic conduct suggests that there is emphasis given to tackle this social evil strongly and efficiently. Following the concerning upward trend in distribution of intimate images on online platforms, this element facilitates the prosecution of individuals involved within the overall franchise of crime. In instances like the 2021 SG Nasi Lemak scandal, where there were twenty-nine administrators enabling the sharing of obscene photos and videos through a Telegram group chat called “SG Nasi Lemak”, 139 the joint liability element allows for the swift prosecution of accused persons.

133 Singapore Parliamentary Debates, Official Report (6 May 2019) vol 94 (The Minister for Home Affairs (Mr K Shanmugam) at p 49

134 Singapore Parliamentary Debates, Official Report (6 May 2019) vol 94 (The Minister for Home Affairs (Mr K Shanmugam) at p 49

135 Sexual Offences Act 2003 (c 42) (UK) ss 75 and 76

136 Sexual Offences Act 2003 (c 42) (UK) ss 75(2)(a), (b)

137 Sexual Offences Act 2003 (c 42) (UK) s 75(2)(d)

138 Sexual Offences Act 2003 (c 42) (UK) s 75(2)(e)

139 “SG Nasi Lemak chat admin jailed and fined; had more than 11,000 obscene photos and videos” The Straits Times <https://www.straitstimes.com/singapore/courts-crime/sg-nasi-lemak-admin-jailed-and-fined-had-morethan-11000-obscene-photos-and> (9 March 2021)

100 region, breasts or buttocks would not otherwise be visible, it is presumed until the contrary is proved that B did not consent to A making the recording.”

Lastly, we would highlight the additional elements of “sexual gratification” or “sexual purpose” that the UK and Canada have respectively included in the provisions on voyeurism. This is in stark contrast to the Singaporean provisions, which simply penalise the “visual recording”. Lord Hutton of the UK Supreme Court opined that it was that purpose that made the act “injurious” as it informs the court about the state of mind that the offender was operating under.140 The narrower definition of the mens rea could make the requirement more difficult to prove as it necessitates proof of sexual gratification, rather than just the broader intention to film, observe or circulate recordings of the act.

We submit that the best legislation is the legislation that efficiently brings voyeurs within sight of the law and law enforcement. There can be efficiency in many forms: the ability to charge the accused persons, legislating against a wider range of conduct and in continuously expanding the law to capture the latest trends in offences. Singaporean legislation does this the best of the three jurisdictions. This efficiency in capturing voyeurs is necessary for two reasons. Firstly, the increasing prevalence of voyeuristic conduct.141 Again, the age-old adage of “justice must not only be done but seen to be done” is relevant here. If the public is neither convinced by the strength of the rule of law nor its ability to prevent offending, then they are less likely to report voyeuristic incidents because they may not see it as an adequate solution to the problem. By penalising inchoate crimes and drafting amendments to the law, the law is both responsive to the evolving trend of crime and widens its net to address more offenders.

The second reason is that it allows the law to trace and treat these offenders. With the increase in offending, there could also be an increase in the number of mentally disordered offenders. This is especially vital given the proliferation of paraphilic acts per individual, 142 and the propensity for the voyeuristic conduct to escalate into more serious sexual disorders or sexual offending.143 According to a consultation paper commissioned by the Canadian government,

140 R v B [2012] 3 All ER 1093 at [64].

141 Singapore Parliamentary Debates, Official Report (6 May 2019) vol 94 (The Minister for Home Affairs (Mr K Shanmugam) at p 49

142 Canada, Department of Justice Canada, ‘Voyeurism as a Criminal Offence: A Consultation Paper’ < https://justice.gc.ca/eng/cons/voy/part1_context.html> (Accessed 15 July 2025)

143 R v Johnson [1997] OJ No. 2535

approximately 20% of voyeurs have committed sexual assault or rape.144 There is no specific data monitoring voyeurs in Singapore and if they go on to commit more voyeuristic offences or other sexual offences, but there are several reported instances in Canada and the UK. As mentioned above, the voyeurs may not seek help or treatment until their disorder begins to manifest or proliferate into deeper crimes. Being able to trace the offender offending is an intuitive method of preventing and managing unnecessary risk.

IV. Conclusion

Throughout this paper, we have highlighted the problem of voyeurism repeatedly – in that there seem to be more and more persons offending, and that the gravity of their conduct continues to become more severe. The crux of this paper is to propose solutions that address two lacunas: one in legislation that affects the law’s ability to both hold voyeurs accountable, and the other in how to hold voyeurs accountable so that there is justice yet mercy meted out.145 As offensive as voyeuristic conduct may be, the offender is often still someone’s son, father, uncle or colleague. If we were to continue with a continued recommendation of only deterrent sentences, with rehabilitation given in very specific instances, it would seem that most offenders simply make “bad decisions”. This is not true – a disorder that may not wholly incapacitate but only somewhat incapacitate the offender, is still a disordered offender. They should come within the purview of the law for the harm caused, and be given a solution that meets the need of both offender and voyeur. We are also mindful that our first solution of widening the reach of legislation will pose a challenge to reducing offending or recidivism rates. However, with the deterrent effect of legislation and increasingly rehabilitative sentences, offending and recidivism rates should hopefully decline with time.

144 Canada, Department of Justice Canada, ‘Voyeurism as a Criminal Offence: A Consultation Paper’ < https://justice.gc.ca/eng/cons/voy/part1_context.html> (Accessed 15 July 2025); referring to Abel, G.G., and J.L. Rouleau, "The Nature and Extent of Sexual Assault," in W.L. Marshall, D. and R. Laws, and H. E. Barbaree (eds.), Handbook of Sexual Assault: Issues, Theories and Treatment of the Offender (New York: Plenum Press, 1990), pp. 9-21, at p. 15.

145 Low Ji Qing at [81].

Appendix A: Written Interview with Dr

Cheow Enquan

1. What are the key characteristics or behaviours associated with voyeuristic disorder?

Voyeuristic disorders are defined either by engaging in voyeuristic acts or by distress caused by voyeuristic thoughts and urges, as defined in the DSM-5 criteria.

2. Are there any specific demographics or groups that are more prone to voyeuristic disorders?

Predominantly males – I have not come across any females with this disorder in my work.

3. What are the potential causes or triggers for voyeuristic disorders?

Accused persons often report that the voyeuristic acts are triggered by “stress” but it is not known what causes the development of voyeuristic disorders per se.

4. According to the DSM-5 manual, diagnosis of voyeuristic disorder requires the following: Is the diagnosis requirements of a voyeuristic disorder similar in Singapore?

YES

a. Patients experience recurrent and intense arousal from observing an unsuspecting person who is naked, undressing or engaging in sexual activity; arousal is expressed in fantasies, intense urges or behaviours;

b. Patients have acted on their sexual urges with a nonconsenting person, or these fantasies, intense sexual urges, or behaviours cause clinically significant distress or impaired function at work, in social situations, or in other important areas of life;

c. The condition has been present for ≥ 6 months.

5. We understand that there is often comorbidity for voyeuristic disorders primarily linked with ADHD, depression and autism. How do these intellectual and mental disorders often attract voyeuristic disorders?

I disagree. In my experience, they are not often comorbid.

6. For cases with no pre-existing medical history or no family history of mental disorders, what are the trigger factors for these patients?

Medical history or family history is usually not very relevant to Voyeuristic Disorder. As I had earlier mentioned, accused persons often state that the voyeuristic acts were triggered by “stress”.

7. (Kindly refer to Annex A for more information on the court’s ruling on voyeuristic disorders for more context) In your esteemed opinion, do you think that the court/criminal justice system has a good understanding of the mechanism of voyeuristic disorders? Is their approach to sentencing correct in addressing the underlying concerns?

The court is not required to have a good understanding of mental disorders including voyeuristic disorder. This is why they need forensic psychiatrists to assist them as expert witnesses in order to understand the disorder and come to the correct considerations for sentencing. While it is beyond the scope of my expertise to comment on the approach to sentencing which is essentially a legal issue, I would just like to state that I am in agreement with my esteemed colleague Dr Phang.

8. What is the difference between an impulse control disorder and a compulsive disorder? Which should voyeuristic disorders be considered as?

Voyeuristic disorder is essentially a disorder of deviant sexual preference. It is neither an impulse control nor compulsive disorder, which are different types of mental disorder in which self-control can be impaired.

9. How is impulse control affected for the individual? Is it to the point where they are incapacitated in deciding whether or not they should film?

As alluded to in my above answer, impulse control is not impaired in voyeuristic disorder.

10. Are there effective treatments to manage the disorder or to reduce the symptoms?

YES – there are medications which can be used to reduce sexual urges, as well as psychotherapy.

11. Do patients come forward of their own accord or are they referred by the courts?

The vast majority are referred by the courts – and for the few patients who come “voluntarily”, their consultation is often followed

12. We are hoping to understand the school of thought supporting Dr Tan’s viewpoint, and if this happens to be the majority view for both private and public psychiatrists. We observed that both of them served in public and private capacities.

To be clear, I disagree with Dr Tan and most of my IMH forensic psychiatric colleagues would also disagree with him. Voyeuristic Disorder essentially does not reduce criminal responsibility

for one’s actions but can be treated to hopefully prevent reoffending. To that end, a trial of MTO can be considered for the first-time offender.

Dr Cheow’s Email Response on 22 October 2023

Dear Zoe,

I do not want to dampen the idealism of young law students but I would candidly state that there are often reasons other than genuine differences in professional opinion at play here. As a forensic psychiatrist, I firmly believe in the correctness of my diagnosis and forensic opinion based on the information made available to me - as it is my conviction to uphold my duty to the court in arriving at an opinion as close to the truth as possible, which may or may not be favourable to the accused. As you have observed, IMH forensic psychiatrists often disagree with private psychiatrists over the diagnosis, and even if we agree about the diagnosis we often disagree about forensic issues related to the diagnosis. This invariably occurs in cases where our opinion is not favourable to the accused. Why? The reason is that private psychiatrists are hired by defence lawyers whom you must know are advocates for their accused clients. If a private psychiatrist produces an unfavourable report for the accused, do you think the defence lawyer would hire them again in future? In fact, the lawyer would take steps to prevent the discovery of such an unfavourable report in court. This is why private psychiatrists often skew their reports in favour of the accused, leaving IMH psychiatrists little choice but to challenge them in court in order to uphold justice.

I regret that I am unable to answer questions regarding MTO vs RTC as these are essentially legal decisions which do not require our input, other than MTO suitability reports if the accused is being considered for MTO as a possible sentencing option. MTO cannot be granted unless we find the accused to be suitable. Even if we find the accused to be suitable, MTO may not be granted as the final sentencing is at the discretion of the court.

Please see the attached document where I have answered your other questions.

You could acknowledge that you have consulted me and taken my input into consideration for your paper. I wish you all the best for your paper!

Regards,

Dr Cheow Enquan

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CREATED EQUAL? A COMPARATIVE ANALYSIS OF

PROTECTED CHARACTERISTICS UNDER THE WORKPLACE FAIRNESS ACT 2025 AND THE EQUALITY ACT 2010

Jun Xiang Wong* Joint Runners-Up for Best Article

Introduction

The Workplace Fairness Act 2025 (“WFA 2025”) was passed by the Singaporean Parliament in order to establish fair employment practices.1 Among its primary purposes are to ensure that Singaporeans and permanent residents (“PRs”) “continue to form the core of the workforce in Singapore, with foreigners as a complement”, and to “preserve harmonious workplace relations”.2 The WFA 2025 seeks to strengthen protections for job seekers and employees while maintaining employers’ freedom to respond to genuine business needs, promote amicable resolution of workplace issues through grievance-handling processes, and provide “calibrated enforcement levers to deal with egregiously unfair employment practices.”3

In particular, the WFA 2025 prohibits “employment decisions” that discriminate against employees or applicants on the grounds of certain protected characteristics. For context, discrimination on the grounds of these protected characteristics amounts to more than 95% of discrimination complaints received by the Ministry of Manpower (“MOM”) and the Tripartite Alliance for Fair & Progressive Employment Practices (“TAFEP”).4

* University of Cambridge, BA (Hons) in Law, Class of 2026

1 Workplace Fairness Act 2025 (WFA 2025) (Singapore) s 3(b).

2 ibid s 3.

3 Ministry of Manpower, ‘Passing Of Workplace Fairness Bill Marks Next Step In Building Fair and Harmonious Workplaces’ (Ministry of Manpower, 8 January 2025) <https://www.mom.gov.sg/newsroom/pressreleases/2025/passing-of-workplace-fairness-bill-marks-next-step-in-building-fair-and-harmonious-workplaces> accessed 7 April 2025.

4 ibid.

By setting out protected characteristics and prohibiting discrimination on the grounds of those characteristics, the structure of the WFA 2025 resembles the structure of the United Kingdom’s Equality Act 2010 (“EA 2010”). The EA 2010 drew from and replaced provisions from disparate pieces of prior legislation to provide stronger protections against discrimination and harassment in the UK. 5 To date, an extensive and detailed body of discrimination and employment law jurisprudence has developed around the provisions of the EA 2010, and intersecting legislation such as the Human Rights Act 1998. This body of jurisprudence, as explored below, has continued to evolve in tandem with changing societal values.

It should be noted that the WFA 2025 does not directly mirror the EA 2010: it does not provide for private employment claims to be made on grounds of discrimination. That will instead be the subject of a subsequent piece of legislation, which is still forthcoming at the time of writing.6 Furthermore, the WFA 2025 is not yet in force, with an implementation target date sometime in 2026 or 2027.7 The WFA 2025 has therefore never been applied by Singaporean courts.

A private cause of action for discrimination is undoubtedly desirable. It would give employees the opportunity to independently hold their employers accountable, should the civil enforcement mechanisms provided for in the WFA 2025 fail to protect them against discrimination, thereby allowing for more well-rounded protection. However, as Singapore’s second workplace fairness statute is still a work-in-progress, this article will neither focus on comparing enforcement procedures between the two jurisdictions, nor on the prohibited forms of discrimination.

Section 1 of this article seeks to compare the structures of the protected characteristics arguably, the centrepieces of the legislation between the EA 2010 and the WFA 2025. It will examine areas where the WFA 2025 has taken positive steps, as well as areas where the WFA 2025 could take a more inclusive view to better give effect to social changes, by reference to

5 Government Equalities Office and Equality and Human Rights Commission, ‘Equality Act 2010: Guidance’ (GOV.UK, 16 June 2015) <https://www.gov.uk/guidance/equality-act-2010-guidance> accessed 7 April 2025.

6 Tan See Leng, ‘Second Reading Speech at Workplace Fairness Legislation Bill’ (Ministry of Manpower, 7 January 2025) <https://www.mom.gov.sg/newsroom/speeches/2025/0107-second-reading-speech-forworkplace-fairness-legislation-bill> accessed 24 June 2025.

7 ibid.

the established English jurisprudence, or vice versa. Section 2 of the article will make a brief point about the possibility of making a complaint to TAFEP as an alternative remedy, when a ground of adverse treatment does not fall within any protected characteristics. It is concluded that while the Singaporean legislation takes positive steps to better protect employees against discrimination, greater development is needed to address its most notable shortfalls and ensure that the scope of each protected characteristic is appropriate.

1. Protected Characteristics

Section 8 of the WFA 2025 provides a list of protected characteristics which can be a ground for unlawful discrimination. These are:8

(a) age;

(b) nationality;

(c) sex;

(d) marital status;

(e) pregnancy;

(f) caregiving responsibilities;

(g) race;

(h) religion;

(i) language ability;

(j) disability; and

(k) mental health condition.

Meanwhile, the protected characteristics under the EA 2010 are listed under section 4 of that Act.9 They are:

(a) age;

(b) disability;

(c) gender reassignment;

(d) marriage and civil partnership;

8 WFA 2025, s 8.

9 Equality Act 2010 (UK) s 4.

(e) pregnancy and maternity;

(f) race;

(g) religion or belief;

(h) sex; and

(i) sexual orientation.

On its face, the WFA 2025 protects a larger number of protected characteristics than the EA 2010. However, a conclusion on the protected characteristics’ respective scopes cannot be reached without considering each characteristic in greater detail. Some of the protected characteristics in both Acts directly overlap, but other protected characteristics intersect more ambiguously with differently-phrased provisions covering different extents of the same “category” of characteristics. The protected characteristics will therefore be analysed more closely, on an individual basis, to critically compare their scopes under both Acts.

1.1 Age

“Age” is not defined in the WFA 2025, but it can be expected that Singapore courts will not simply interpret it as referring to a singular, discrete integer age. The protected characteristic of “age” in the EA 2010 refers to belonging to a particular age group.10 An “age group” is defined as “a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.”11

The demarcation of an age group under the EA 2010 can be even broader than a numerically defined range such as “over fifty”. It can be defined “relatively” (such as “older than us”) or by reference to factors linked to chronological age, such as physical appearance. 12 An age group may also be demarcated by the use of a blanket term referring to persons born during a particular time period, such as “digital natives” or “Generation Z”.13 It is submitted that the definition of the protected characteristic of “age” is appropriate, as it enables it to be flexible enough to respond to varying forms of age-based discrimination in this manner. The

10 ibid s 5(1).

11 ibid s 5(2).

12 Raiza Karim, ‘Protected Characteristics’ in Anthony Robinson, David Ruebain and Susie Uppal (eds), Blackstone’s Guide to the Equality Act 2010 (4th edn, OUP 2021) 16.

13 ibid 16.

Singaporean courts should be willing to adopt a similarly flexible construction of the protected characteristic of “age” when the need arises. This will ensure that the courts are able to protect employees against a wide variety of age-based discrimination.

Age discrimination is a highly pertinent form of employment discrimination in Singapore. In employee discrimination statistics gathered by MOM in 2023, age was the personal attribute that the highest proportions of both job seekers and employees experienced discrimination over.14 Stronger protections against age discrimination in the workplace are therefore a muchneeded enhancement.

However, it would be remiss not to recognise that section 21 of the WFA 2025 provides an exception to age discrimination which leaves a gaping hole in its protections in relation to younger workers. Under section 21(1), an employer may prescribe a minimum age for hiring, and it is not discriminatory for an employer to refuse to hire an individual because they are younger than the prescribed age. 15 It is also not discriminatory for employers to issue, communicate or publish instructions or policies that individuals younger than the prescribed age cannot be hired,16 or publish advertisements or descriptions that make being older than the prescribed age a hiring advantage or requirement.17

In effect, the above exception would mean that the WFA 2025 prohibits discrimination against older workers, but leaves a massive gap in protections for “reverse ageism” against younger workers during the hiring process. Such discrimination can be extremely common, presenting a problem in Singapore and the wider world. 18 A study published by the American Psychological Association in 2017 showed that over 60% of older employees described their young employees negatively, and 28% of working young adults reported experiences with

14 Sharon Salim, ‘More job seekers cite discrimination over age and nationality in 2023: MOM survey’ The Straits Times (Singapore, 24 September 2024) <https://www.straitstimes.com/business/more-job-seekers-citediscrimination-over-age-and-nationality-in-2023-mom-survey> accessed 9 April 2025.

15 WFA 2025, s 21(1).

16 ibid s 21(2).

17 ibid s 21(3).

18 Malavika Menon, ‘Too young for the job: Tackling ‘reverse ageism’ in the workplace’ The Straits Times (Singapore, 18 June 2023) <https://www.straitstimes.com/opinion/too-young-for-the-job-tackling-reverseageism-in-the-workplace> accessed 9 April 2025.

reverse ageism.19 Negative perceptions of younger workers include being too casual, entitled, disrespectful of elders, self-centred or lacking in work ethics and drive. 20 Such negative perceptions can result in a lack of training and development opportunities, as well as a lack of respect, perceptions of incompetence, and belittling comments from colleagues.21

Certainly, there can be a valid basis for minimum age requirements, especially in fields that carry considerable risks to health and safety such as construction and manufacturing. Therefore, under the Employment Act 1968, restrictions may be imposed on the employment of children below 15 years of age and young persons between 15 and 16 years of age through secondary legislation.22 Yet, the Singapore Parliament, in enacting section 21 of the WFA 2025, appears not to have contemplated the serious risk of reverse ageism in a hiring context, focusing only on ageism experienced by older workers.23

Conversely, English law is more capable of protecting against reverse ageism. In Seldon v Clarkson, Wright & Jakes, 24 Baroness Hale held that practices that directly discriminate against employees on the basis of age can only be justified if (i) they pursue a legitimate objective of a public interest nature, (ii) the legitimate objective is consistent with the state’s social policy aims, and (iii) the means used are proportionate in the sense of being appropriate to the aim and reasonably necessary to achieve it.25 Such legitimate objectives have been held to include intergenerational fairness, which encompasses facilitating access to the workforce by younger as well as older people, and dignity, which requires equal treatment irrespective of irrational prejudices or stereotypical assumptions.26

19 Michelle Raymer and others, ‘An Examination of Generational Stereotypes as a Path Towards Reverse Ageism’ (2017) 20 The Psychologist-Manager Journal 148, 168.

20 ibid 164.

21 ibid 165.

22 Employment Act 1968 (Singapore) ss 67A, 69–70.

23 Singapore Parl Debates; Vol 95, Sitting No 148; [7 Jan 2025].

24 [2012] UKSC 16, [2012] 3 All ER 1301.

25 ibid [55].

26 ibid [56]–[57].

The EA 2010 does provide exceptions to discrimination in a workplace context that relate to age. 27 However, these relate to length-of-service benefits, the national minimum wage, redundancy payments, insurance arrangements, childcare provision for children of a particular age group, and pension contributions.28 Unlike Singapore’s legislation, hiring decisions are not included within an exception in schedule 3, part 2 of the Equality Act, 29 allowing reverse ageism in the hiring context to fall within the scope of discrimination.

The English scheme is therefore better equipped to protect the interests of younger workers as well as older workers against age discrimination than the Singaporean scheme. Its statutory exceptions are more sensibly limited. In addition, conduct that amounts to discrimination is subject to the same general analysis of a legitimate objective, consistency with the state’s social policy aims, and proportionality, regardless of whether such discrimination is against an age group defined by its lower or upper boundaries.

1.2 Nationality

“Nationality” under the WFA 2025 encompasses an individual’s citizenship or residency status of any country.30 In the EA 2010, nationality instead falls under the protected characteristic of “race”. 31 Like the Singaporean scheme, “nationality” under the Equality Act is based on citizenship.32

However, an exception to discrimination in relation to “nationality” under the Singaporean scheme serves to narrow its ambit. Under section 22 of the WFA 2025, employment decisions that adversely affect individuals on the ground that they are neither Singapore citizens nor PRs of Singapore are exempt from the scope of discrimination.33 The same exception extends to directions, instructions and policies to make employment decisions, as well as hiring

27 Equality Act 2010, sch 9, pt 2.

28 ibid.

29 ibid.

30 WFA 2025, s 9.

31 Equality Act 2010, s 9(1).

32 Northern Joint Police Board v Power [1997] IRLR 610 (EAT) [9].

33 WFA 2025, s 22(1).

advertisements or descriptions.34 This is clearly motivated by the legislative purpose specified in section 3(c) of the WFA 2025: “to ensure that citizens of Singapore and PR of Singapore are fairly considered for employment opportunities and continue to form the core of the workforce in Singapore, with foreigners as a complement”.35

The exception in section 22 of the WFA 2025 obviously represents a huge deficiency in the protection of foreign workers employed by Singaporean businesses. Foreign nationals who do not hold permanent residency in Singapore account for a significant proportion of the Singaporean workforce: in December 2024, the total foreign workforce amounted to 1,576,500 people.36 The total number of employed individuals in Singapore in 2024 was 2,365,600,37 making foreign employees amount to about 66.6% of all employed persons in Singapore. The gap in protection explicitly permitted by section 22 of the WFA 2025 is thus likely to affect a large proportion of the Singaporean labour force.

The large percentage of foreign workers in Singapore, and the need to provide more jobs to Singapore citizens and PRs, has been a “hot topic” in Parliamentary debate.38 The political appetite to protect and nurture a thriving domestic workforce is understandable. Yet, it must be remembered that “employment decisions” under the WFA 2025 apply not only to hiring but also to other decisions which may affect workers who are already employed by Singaporean businesses. These include appraisals, demotions, providing training and termination. 39 Negative appraisals, demotions, denials of access to training opportunities and termination of employment all have the potential to hinder the development of foreign employees and infringe on their personal dignity at work. The exception in section 22 therefore carries the risk of actively placing foreign employees at a disadvantage compared to their colleagues who are citizens and PRs.

34 ibid ss 22(2)–(3).

35 ibid s 3(c) (emphasis added).

36 Ministry of Manpower, ‘Foreign Workforce Numbers’ (Ministry of Manpower, 19 March 2025) <https://www.mom.gov.sg/foreign-workforce-numbers> accessed 10 April 2025.

37 Manpower Research and Statistics Department, Ministry of Manpower, ‘Labour Force in Singapore 2024’ (Manpower Research and Statistics Department, Ministry of Manpower, 27 January 2025).

38 See, for instance, Singapore Parl Debates; Vol 95, Sitting No 87; [27 Feb 2023].

39 WFA 2025, ss 6(1), 7(1).

That workers who have already entered into employment relationships with Singaporean businesses may be unfairly treated differently from Singaporean nationals and PRs in the making of such decisions is a risk that must be treated with caution. The law must be careful not to deprive such a large subset of Singapore’s workforce of too large a swathe of employment rights, even if out of a political desire to prioritise the domestic workforce.

Under the EA 2010, differential treatment based on race may be lawful where belonging to a particular race is essential to the job, or when an organisation takes “positive action” to support or develop underrepresented racial groups, as recognised by the Equality and Human Rights Commission.40 The first of these exceptions would appear to fall under the different statutory exception of “genuine requirement of job” under section 20 of the WFA 2025.41 Meanwhile, as mentioned above, Singaporean law seems to permit a wider degree of differential treatment based on nationality than just positive action: section 22 appears to permit not only “positive” differential treatment (taking steps that offer benefits targeted at certain groups) but also “negative” differential treatment (taking steps that actively disadvantage certain groups).42

Yet, the situation under the EA 2010 is not necessarily more favourable to foreign workers. It has been held, in Taiwo v Olaigbe, that “immigration status” is not sufficiently closely associated with the protected characteristic of “nationality” for it to fall under that characteristic, despite “immigration status” being a “function” of nationality.43 Therefore, the fact that two foreign domestic workers had limited leave to enter on domestic workers’ visas, under whose terms they were particularly vulnerable to mistreatment, did not mean they had been discriminated against on grounds of nationality. 44 This exclusion creates a lacuna in the protection of migrant workers under the Equality Act which is similar to the practical effect of section 22 of the WFA 2025, and which remains in need of fixing.

40 Equality and Human Rights Commission, ‘Race discrimination’ (Equality and Human Rights Commission, 20 February 2020) <https://www.equalityhumanrights.com/equality/equality-act-2010/your-rights-under-equalityact-2010/race-discrimination> accessed 11 April 2025.

41 WFA 2025, s 20.

42 See, for instance, WFA 2025, s 22(3)(b).

43 Taiwo v Olaigbe and another [2016] UKSC 31, [2017] 1 All ER 985 [22]–[23], [26] (Lady Hale).

44 ibid [24]–[26].

Therefore, it is visible that employment discrimination on grounds of nationality presents difficult issues which judges should approach with caution in both jurisdictions. As judges need to deal with competing policy considerations in this area, some of which manifest the democratically-expressed will of the people, a more deferential approach from the unelected judiciary might be necessary. On the other hand, it is to the advantage of employees’ fundamental rights if judges do not extend too much leeway to employers or adopt overly formalistic reasoning to deny claims by employees.

1.3 Sex

The definition of “sex” in the WFA 2025 arguably represents one of its greatest failures to adapt to developing views on sex and gender in modern society, and therefore one of the greatest gaps in its protections.

Firstly, sections 10(2)(a) and (b) of the WFA 2025 explicitly exclude sexual orientation and gender identity from the list of protected characteristics. 45 This directly enshrines a gap in protection against discrimination for members of the LGBTQ+46 community. This is a deeply concerning and unwelcome development given the prevalence of structural discrimination against members of the LGBTQ+ community present in Singapore, even after the repeal of section 377A of the Penal Code 1871. Focusing on the employment context, a survey conducted by equalities group AWARE found that LGBTQ+ respondents experienced discrimination at work at a higher rate (68%) than non-LGBTQ+ respondents (56%).47 With this statistic in mind, sections 10(2)(a) and (b) appear to be a regrettably missed opportunity to protect the rights of LGBTQ+ individuals and promote the development of more tolerant social attitudes to gender identity in Singapore.

It is further noted that reported instances of workplace discrimination may be influenced by intersectionality between gender and other protected characteristics. AWARE noted that

45 WFA 2025, s 10(2).

46 A blanket acronym referring to lesbian, gay, bisexual, transgender and queer individuals, as well as other sexual and gender minorities.

47 AWARE, ‘1 in 2 experienced workplace discrimination in Singapore over the past five years, with race, age and gender discrimination most common’ (AWARE, 20 September 2022) <https://www.aware.org.sg/2022/09/1in-2-experienced-workplace-discrimination-aware-milieu-survey> accessed 10 April 2025.

persons with disabilities experienced discrimination at a higher rate than persons without disabilities, LGBTQ+ individuals at a higher rate than non-LGBTQ+ individuals, those of minority race at a higher rate than those of majority race, and women at a higher rate than men.48 A separate study affirmed that LGBTQ+ individuals who were “out” to their co-workers who also possessed more minority statuses experienced “increased types of lifetime discrimination and harassment.”49

The protected characteristic of “sex” under the WFA 2025 appears to have brought both the protected characteristics of “sex” and “gender reassignment” under the EA 2010 within its scope. Thus, “sex” under the WFA 2025 holds a two-pronged definition. Firstly, it includes the sex assigned at birth,50 mirroring section 11(a) of the EA 2010: “a reference to a man or to a woman”. 51 Secondly, it includes the reassigned sex for individuals who undergo sex reassignment procedures.52

However, closer examination of the phrasing of the EA 2010 and recent jurisprudence that has sprung up around it reveals stark differences between the UK and Singapore in their protection of transgender individuals. It is submitted that the Singaporean system is deeply deficient in this respect.

The WFA 2025 adopts a registration-centric approach to sex and gender reassignment. Under section 10(3) of the WFA 2025, the person’s registered sex under the Immigration Act 1959, National Registration Act 1965, work pass or passport (in descending order of probative value) is deemed to provide prima facie evidence of their sex.53 This serves to impose a registration barrier on transgender individuals in Singapore before they can benefit from the WFA 2025 scheme. By contrast, under English law, formal legal recognition of a sex change is not required to benefit from the protected characteristic of “gender reassignment”, as will be explored below.

48 ibid.

49 Wen Zhi Ng and others, ‘Discrimination and Harassment in the Workplace: The Lived Experiences of Singaporean LGBTQ+ Individuals’ (2024) 2(1) Diversity & Inclusion Research <https://doi.org/10.1002/dvr2.70009> accessed 29 June 2025.

50 WFA 2025, s 10(1)(a).

51 Equality Act 2010, s 11(a).

52 WFA 2025, s 10(1)(b).

53 ibid s 10(3).

In Singapore, under the National Registration Regulations, individuals may report to a registration officer and apply for a replacement identity card with correct particulars if they have an identity card containing particulars which are, to their knowledge, incorrect, and a registration officer may, if satisfied, issue a replacement identity card.54 However, although this is not mentioned in the National Registration Regulations, transgender individuals must undergo gender-affirming surgery and obtain a medical report signed by the practitioner who performed the surgery, which must be presented to the Immigration and Checkpoints Authority, before the gender on one’s identity card may be changed.55 A registration requirement, like that in the WFA 2025, therefore presupposes a surgical procedure as a prerequisite for legally changing one’s gender on their identity card.

Yet, the requirement of registration and surgery is an unwelcome formality for many transgender individuals. The individual may be experiencing gender dysphoria56 but they may not have had gender-affirming surgery done yet. This may be due to a fear of stigmatisation or pressure from their family, workplace or school.57 This is especially the case because no local healthcare providers in Singapore provide gender-affirming surgery, forcing transgender people to travel overseas for surgery.58 Even in countries where gender-affirming surgery is both legal and performed, other structural barriers may still impede access to medical gender identity treatment. In 2019, the UK Government found that only 50% of transgender men and 43% of transgender women had accessed medical gender identity services, due to systemic flaws like long waiting lists.59 Various American studies found that only 25-35% of transgender individuals had undergone gender-affirming surgery.60

54 National Registration Regulations (Cap 201, Reg 2, 1990 Rev Ed Sing), reg 10.

55 Singapore Legal Advice, ‘Transgender Laws and Rights in Singapore’ (Singapore Legal Advice, 16 September 2022) <https://singaporelegaladvice.com/law-articles/transgender-laws-rights-singapore> accessed 10 April 2025.

56 A mismatch between one’s gender identity and birth sex.

57 TransgenderSG, ‘Our 2025 Study Report is Out!’ (TransgenderSG, 3 February 2025) <https://transgender.sg/blog/2025-survey> accessed 29 June 2025.

58 ‘Transgender Laws and Rights in Singapore’ (n 55).

59 Government Equalities Office, ‘National LGBT Survey: Summary report’ (GOV.UK, 7 February 2019) <https://www.gov.uk/government/publications/national-lgbt-survey-summary-report/national-lgbt-surveysummary-report> accessed 10 April 2025.

60 Ian T Nolan, Christopher J Kuhner and Geolani W Dy, ‘Demographic and Temporal Trends in Transgender Identities and Gender Confirming Surgery’ (2019) 8 Translational Andrology and Urology 184, 185.

In contrast, discrimination law in the UK has recognised that transgender identity transcends medical procedures and encompasses a wide range of lifestyle choices. Firstly, section 7 of the EA 2010 protects gender reassignment as its own protected characteristic.61 It includes any person who “is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.”62 The drafting of this provision recognises that sex contains other attributes than physiological ones, and allows for the protection of individuals who have not been able to access surgery. Such attributes might include one’s voice, style of dressing and verbal inflections.63

In Taylor v Jaguar Land Rover Ltd, 64 the Employment Tribunal (“ET”) picked up on the wide scope of section 7 of the Equality Act. It held that Parliament had, in enacting section 7(1), intended to move away from “medicalising protected characteristics” and to “make it clear that a person need not intend to have surgery, or indeed ever have surgery, in order to identify as a different gender to their birth sex.”65 The ET further held that an individual could manifest the intention to undergo a “process” of gender reassignment in many different ways, such as by making their intention known, or wearing clothes or displaying mannerisms of the opposite sex.66 The protected characteristic of gender reassignment under the EA 2010 encompassed “a spectrum moving away from birth sex”, and an individual “at any point on that spectrum” could qualify for protection against discrimination.67

The decision in Taylor would later be affirmed by Chamberlain J in the High Court, in R (AA and others) v National Health Service Commissioning Board. 68 He recognised that gender-

61 Equality Act 2010, s 7.

62 ibid s 7(1).

63 American Psychiatric Association, ‘What is Gender Dysphoria?’ (American Psychiatric Association, August 2022) <https://www.psychiatry.org/patients-families/gender-dysphoria/what-is-gender-dysphoria> accessed 29 June 2025.

64 ET 1304471/2018.

65 ibid [174].

66 ibid [177].

67 ibid [178].

68 [2023] EWHC 43 (Admin), [2023] PTSR 608.

affirming therapies for transgender people included hormonal therapy, surgery, voice therapy and electrolysis for hair removal.69 He asserted that transgender people were not solely defined by gender-affirming surgery, but underwent treatment to different extents. 70 Chamberlain J would go on to question the need to resort to parliamentary statements to discern the legislative intention behind section 7 of the EA 2010, but he substantially upheld the ET’s interpretation of section 7(1), holding that it could be discerned purely from the plain reading of the provision.71 As long as an individual displays a “settled” intention that is more than a “passing whim” to live according to a gender identity different from that assigned at birth, this would be sufficient to bring them within the protected characteristic of gender reassignment, regardless of whether the gender change is intended to be permanent.72

The impact of this line of cases will be vast for LGBTQ+ individuals and discrimination lawyers. Arguably, the logic of this line of cases may protect not only transgender individuals, but also a wider range of gender-queer, gender-fluid and non-binary identities that exist beyond traditional conceptions of gender.

It might be argued that the lack of a concrete evidential source as to an individual’s gender makes it hard to determine when discrimination has occurred. However, it is hard to explain why, if the individual has made their transgender, gender-fluid or other queer identity explicitly or otherwise manifestly (such as through clothing choices) known to others in a workplace context, discrimination by employers in the know should be allowed to slip through a crack in the legislative scheme. A requirement that the individual expresses a “settled” intention to live out a different gender identity that is more than a mere “passing whim”, as Chamberlain J laid down in AA, 73 could be a logical requirement for the implication of the protected characteristic’s existence. Such a settled intention could be substantiated through evidence of a clear pattern of behaviour in the workplace.

69 ibid [7].

70 ibid [7].

71 ibid [128]–[131].

72 ibid [131].

73 ibid [131].

Overall, by imposing registration barriers to establishing discrimination for transgender individuals as well as excluding gender identity and sexual orientation from its scope, the protected characteristic of “sex” in the WFA 2025 falls far behind the expected level of protection required for LGBTQ+ individuals in the present day. It also falls behind discrimination laws in the UK, which have made positive steps in de-medicalising and expanding conceptions of gender identity.

The limitations of section 10 of the WFA 2025 represent a deeply unfortunate development. The legislation could have instead been used to further legitimise the place of LGBTQ+ individuals in Singapore in the wake of the repeal of section 377A of the Penal Code 1871, and promote a shift toward more tolerant attitudes among employers and wider society. Legislative change is therefore severely needed to bring LGBTQ+ individuals within the WFA 2025’s protective scope.

1.4 Marital Status

“Marital status” under section 11 of the WFA 2025 covers marriage, as well as unmarried, divorced and widowed statuses.74 It also covers cases of multiple previous marriages,75 and living arrangements where married couples do not cohabitate but live separately.76

This represents an improvement over the EA 2010, which solely encompasses the status of being married or in a civil partnership.77 Being unmarried (even if engaged) or divorced are statuses that are exempt from the protected characteristic of “marriage and civil partnership” under the Equality Act.78 Of course, the systems of family law in the UK and Singapore are not directly comparable, given that Singapore does not have any form of civil partnership system. However, the Singaporean Parliament’s focus on a range of “marital statuses”, rather than solely “marriage”, and its widening of the protected characteristic, is welcomed. This will be

74 WFA 2025, ss 11(a)–(d).

75 ibid s 11(f).

76 ibid s 11(e).

77 Equality Act 2010, s 8(1).

78 Equality and Human Rights Commission, ‘Marriage and civil partnership discrimination’ (Equality and Human Rights Commission, 1 November 2023) <https://www.equalityhumanrights.com/equality/equality-act-2010/yourrights-under-equality-act-2010/marriage-and-civil-partnership> accessed 10 April 2025.

able to provide a broader degree of protection against varying forms of discrimination related to marital status.

One potential improvement in the protection of marital status which both UK and Singapore law could make is the protection of unmarried couples who are cohabiting and in close relationships with one another. Such cohabitation is not included within the list of examples in section 11 of the WFA 2025.79 Similarly, in Hawkins v Atex Group Ltd and others, 80 Underhill J asserted that it was “the fact of marriage”, rather than the closeness of the relationship, which was the essential focus of section 3 of the Sex Discrimination Act 1975 (the similarly-worded predecessor of section 8 of the EA 2010).81 The absence of the status of marriage will therefore exclude cohabiting couples from the scope of section 8 of the EA 2010, even if their relationship is as close as a married couple’s.

English law has progressively increased protections for cohabiting heterosexual and same-sex couples in other areas of the law,82 making it a logical step to expand the EA 2010’s protections to cases where an unmarried couple who are not civil partners is nevertheless cohabiting as if they were married or in a civil partnership. In contrast, Singapore law has been hesitant to treat cohabiting couples as “married couples”. For instance, in the case of USB v USA, it was affirmed that assets accumulated during cohabitation could not be counted within the pool of marital assets for the purposes of dividing marital assets at divorce. 83 Including unmarried cohabitation within the protected characteristic of “marital status” under Singapore’s workplace discrimination legislation could represent a small but valuable step towards better recognising the diversity of social relationships and living arrangements that exist in modern society.

The Singapore courts’ hesitation to consider cohabiting couples in a similar light to married couples may be explained by a strict adherence to civil status and the supremacy of statutory wording. As Judith Prakash JA explained in USB v USA:

79 WFA 2025, s 11.

80 [2012] UKEAT 302/11, [2012] ICR 1315.

81 ibid [11]–[13].

82 Rent Act 1977 (UK) sch 1, para 2(2); Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.

83 USB v USA and another appeal [2020] SGCA 57, [2020] 2 SLR 588.

Marriage confers a legal status on the parties which carries with it specified rights and obligations. For non-Muslim couples who marry in Singapore, their marriage begins when they satisfy the various statutory prescriptions which the Charter sets out for the attainment of that status. The Charter governs all aspects of civil marriage and divorce in Singapore. Thus, under our law, it is inherently selfcontradictory to treat parties as “married” when they were simply cohabiting.84

However, there is no reason why a statutory provision such as the WFA 2025 may not adopt a more progressive position on cohabitation to provide greater protections for employees who are in a relationship of unmarried cohabitation. To do so would bring Singapore law up to date with developing social trends and family dynamics found internationally. It is further argued that it would not lead to tedious evidential difficulties if the courts are able to provide clear guidelines for the degree of life-sharing between the parties required to establish cohabitation as a protected characteristic.

1.5 Pregnancy

The WFA 2025 carries an appropriately wide definition of the protected characteristic of “pregnancy”. Under section 12 of the WFA 2025, it includes the fact of a present or past pregnancy, and even an expressed desire or intent to bear children in the future. 85 It also includes the fact that the woman is presently breastfeeding an infant or expressing breast milk for the purpose of feeding an infant, or has done so in the past.86 Furthermore, the protected characteristic includes present or past absence from work due to maternity leave,87 as well as present or past illnesses related to pregnancy which were contracted during the pregnancy or up to six weeks after confinement.88

84 ibid [18].

85 WFA 2025, ss 12(1)(a)–(c).

86 ibid ss 12(1)(d)–(e).

87 ibid s 12(1)(f).

88 ibid s 12(1)(g).

In each example given in section 12 related to past pregnancy, the protected states of affairs listed above must occur within the “prescribed period” or, if no period is prescribed, at any time before that day.89 “Prescribed period” has not received a definition in the WFA 2025. It is not fully clear whether the period would be prescribed by the employer or any of the officers appointed to enforce the WFA 2025 in section 37 of the WFA 2025.90

In comparison, “pregnancy and maternity” is a protected characteristic which is not defined in part 2, chapter 1 of the EA 2010, where the other protected characteristics are defined.91 The scope of “pregnancy and maternity” has instead been elucidated in sections 17 and 18 of the EA 2010, which provide examples of “non-work” and “work” cases of direct discrimination respectively.92 For the purposes of comparison, this article will focus on the “work” examples of pregnancy and maternity discrimination under section 18, although it will briefly examine section 17 on occasion for the purposes of comparison.

Under section 18 of the EA 2010, direct discrimination on the grounds of “pregnancy and maternity” occurs when a person treats a woman unfavourably:

(a) Because of the pregnancy, if the unfavourable treatment is in or after the “protected period”93

(b) Because of an illness suffered by her in the “protected period” as a result of the pregnancy, if the unfavourable treatment is in or after the “protected period”94

(c) Because she is on compulsory maternity leave95

(d) Because she is exercising, seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave96

89 ibid s 12(1).

90 ibid s 37.

91 Equality Act 2010, pt 2, ch 1.

92 ibid ss 17–18.

93 ibid s 18(2)(a).

94 ibid s 18(2)(b).

95 ibid s 18(3).

96 ibid s 18(4).

The “protected period” is defined by section 18(6) of the Equality Act as beginning when the pregnancy begins.97 It will end when the additional maternity leave period ends or when she returns to work after the pregnancy (if earlier), if the woman has the right to ordinary and additional maternity leave (or equivalent maternity leave).98 If she does not have the right to ordinary and additional or equivalent maternity leave, then the “protected period” ends two weeks after the end of the pregnancy.99

Until regulation 2(4) of the Equality Act 2010 (Amendment) Regulations 2023 amended section 18(2) of the EA 2010, there was a requirement that unfavourable treatment due to the pregnancy, or an illness related to the pregnancy, had to fall within the “protected period” to count as direct discrimination.100 However, even after this change, the protected characteristic of “pregnancy” under the WFA 2025 still appears capable of embracing a wider and more diverse range of pregnancy-based workplace discrimination than its counterpart in the EA 2010.

Firstly, section 18 of the EA 2010 does not include direct discrimination at work due to breastfeeding. This is despite the fact that section 17 of the EA 2010 includes unfavourable treatment due to breastfeeding within the scope of direct discrimination on the basis of “pregnancy and maternity” in a non-work context.101 It is therefore encouraging that the WFA 2025 has taken the step to include both present and past breastfeeding within the scope of the protected characteristic of “pregnancy”. This is especially so in light of other efforts by the Singapore government to raise awareness of, and increase support for, lactation in the workplace over the last twelve years.102

Section 12 of the WFA 2025 is also capable of including a wider temporal range of events. The phrasing of section 18(2) of the EA 2010 does not distinguish between present and past

97 ibid s 18(6).

98 ibid ss 18(6)(a) and (aa).

99 ibid s 18(6)(b).

100 Equality Act 2010 (Amendment) Regulations 2023, SI 2023/1425, reg 2(4); Equality Act 2010, s 18(2). As stated above, unfavourable treatment may now occur during or after the protected period, widening the scope of direct discrimination: Equality Act 2010, s 18(2).

101 ibid s 17(4).

102 Yu Qi Lee and others, ‘Promoting Breastfeeding in Singapore A Case Study’ (2024) 7(2) BMJ Nutrition, Prevention & Health <https://doi.org/10.1136/bmjnph-2024-000887> accessed 12 April 2025.

pregnancies or pregnancy-related illnesses, 103 and section 18(4) of the EA 2010 explicitly includes cases where the individual previously sought additional or ordinary maternity leave.104 However, section 18(3) of the EA 2010 requires that the woman is treated unfavourably because she is (presently) on compulsory maternity leave.105 In comparison, section 12 of the WFA 2025 is capable of covering pregnancies, breastfeeding, maternity leave and pregnancy-related illnesses which occurred in the past.106 Additionally, section 12 of the WFA 2025 goes further to protect not just past pregnancies but also potential future pregnancies via section 12(1)(c), which includes an expressed desire or intent to bear children.107

It remains to be seen what the impact of the yet-undefined “prescribed period” will be. That aside, the broad range of pregnancies and pregnancy-related events which are protected by section 12 of the WFA 2025 is greatly welcomed, as it will expand protections for working mothers and ensure that their maternal roles are accorded adequate respect by society. Amidst an ageing population, and with pressure on the Singaporean government to encourage childbirths, it is certainly desirable to ensure that working mothers are comfortable with devoting their time and energy to start families without having to sacrifice their careers. It is also desirable that working mothers should not feel disadvantaged in their career prospects compared to those that are not starting families.

Finally, it should be noted that section 18 of the EA 2010 only covers cases of direct discrimination, and not cases of indirect discrimination as defined by section 19 of the EA 2010.108 Section 18 also does not cover instances of harassment as defined by section 26 of the EA 2010.109 Yet, the significance of this exclusion, and the exclusions of other grounds for unfavourable treatment from sections 18 which have been outlined above, should not be overstated. If a ground for unfavourable treatment is not covered by section 18, or the conduct

103 Equality Act 2010, s 18(2).

104 ibid s 18(4).

105 ibid s 18(3).

106 WFA 2025, s 12(1).

107 ibid s 12(1)(c).

108 Equality Act 2010, s 19(3).

109 ibid s 26(5).

is outside the scope of direct discrimination, it may still fall within the scope of discrimination or harassment against the protected characteristic of “sex”.110

Indeed, the protected characteristic of “sex” may be regarded as a kind of lex generalis in relation to the protected characteristic of “pregnancy and maternity”.111 The former was the genesis of the latter in the EU jurisprudence and legislation which influenced the setting aside of “pregnancy and maternity” as a protected characteristic of its own.112 Section 18(7) of the EA 2010 even harkens back to the origins of the protected characteristic by stating that “Section 13, so far as relating to sex discrimination, does not apply to treatment of a woman in so far as” it falls within section 18(2)–(4).113 This phrasing clearly frames “sex” as the broader protected characteristic, and “pregnancy and maternity” as a specific subset within its scope.

On the other hand, it is arguable that relegating forms of unfavourable treatment excluded by statute from the protected characteristic of “pregnancy and maternity” to be addressed instead under “sex” discrimination undermines the aims of the legislation. By designating “pregnancy and maternity” as its own discrete protected characteristic, the EA 2010 aimed to achieve greater clarity about the application of both protected characteristics. In doing so, it underscored the importance of the rights and needs of pregnant mothers, the crucial societal roles which they play, and the unique structural challenges which they face. To continue relying on another protected characteristic to compensate for the protected characteristic of “pregnancy and maternity” risks contradicting that message and undermining the goal of clarity in application.

1.6 Caregiving Responsibilities

The protected characteristic of “caregiving responsibilities” is defined by section 13 of the WFA 2025. It means that the individual has “a responsibility to care for or support any family member” in the present, “at any time during the prescribed period” before the present day, or,

110 Zoe Adams, Catherine Barnard, Simon Deakin and Sarah Fraser Butlin, Deakin and Morris’ Labour Law (7th edn, Hart Publishing 2021) 579.

111 ibid 578.

112 ibid 578.

113 Equality Act 2010, s 18(7).

if no period is prescribed, at any time before the present day.114 Like the protected characteristic of “pregnancy”, the “prescribed period” for the purposes of “caregiving responsibilities” is not currently defined in the WFA 2025.

The scope of family members for whom one may have “caregiving responsibilities” is wide. It includes:

(a) spouses,

(b) children (including adopted children and stepchildren),

(c) parents (including adoptive parents),

(d) parents-in-law,

(e) siblings,

(f) grandparents,

(g) grandchildren, and

(h) any other individual who is related to the caregiver “by blood or marriage” and “lives in the same household” as the caregiver.115

Furthermore, section 13 does not specify what the reason for caregiving has to be.116 While it falls to the courts to interpret the phrase “care for or support” in the context of the cases that arise, the scope of caregiving reasons captured by this protected characteristic is possibly extensive. Obvious examples will be the illness, disability or severe injury of a family member. Moreover, even the existence of ordinary parental responsibilities over a child, or the fact that one is providing for the regular everyday needs of an elderly relative (who would otherwise be living in a care home), could potentially fall under the care or support required for “caregiving responsibilities”.

The position under the EA 2010 is more complicated. Notably, an equivalent protected characteristic is not present within the EA 2010. However, a workaround has proven available. The courts have recognised that a person can be discriminated against because someone else

114 WFA 2025, s 13(1).

115 ibid s 13(2).

116 ibid s 13.

they are associated with has the protected characteristic, even if they do not have it themselves.117 This is known as associative discrimination, and it applies not only to direct discrimination but also indirect discrimination and harassment.118 The principle of associative discrimination has been crucial for the protection of caregivers.

The Court of Justice of the European Union (“CJEU”) first recognised associative discrimination in Coleman v Attridge Law 119 . This was a case decided under the Equality Framework Directive, which the EA 2010 was enacted to implement. In Coleman, the claimant, Sharon Coleman, had a disabled son who required specialised care, and for whom she served as the primary carer.120 She alleged that her employers refused to let her return to work after coming back from maternity leave, turned down her requests for more flexible working arrangements that could accommodate her parental responsibilities and subjected her to insulting comments and disciplinary action when she made the said requests.121

The CJEU held that the purpose of the Equality Framework Directive was not only to safeguard people who had a disability, but to “combat all forms of discrimination on grounds of disability.”122 Although the claimant was not herself disabled, the fact remained that it was the disability itself which was the ground for the less favourable treatment suffered. As such, the CJEU asserted that an interpretation of the Directive that limited its application only to disabled claimants would “deprive that Directive of an important element of its effectiveness”.123 With that in mind, the CJEU proceeded to hold that unwanted conduct amounting to harassment against an employee, related to the disability of a child whose care was provided by that employee, would fall under the prohibition of harassment under the Directive.124

117 Adams, Barnard, Deakin and Fraser Butlin (n 110) 589.

118 ibid 594.

119 Case C-303/06 Coleman v Attridge Law [2008] IRLR 722.

120 ibid.

121 ibid, Opinion of AG Maduro [3].

122 ibid [38].

123 ibid [50]–[51].

124 ibid [63].

English courts have also invoked the EA 2010 to protect against associative discrimination in the context of caring for a disabled relative. In Follows v Nationwide Building Society, 125 the claimant contended that she was dismissed from work because she had to care for her disabled mother. Both parties accepted that direct discrimination under the EA 2010 “does not require the protected characteristic to be that of the claimant: the less favourable treatment simply has to be because of a protected characteristic”.126 It was sufficient that the claimant had suffered less favourable treatment on the grounds of her mother’s disability. 127 Likewise, the ET confirmed in Follows that associative indirect discrimination was possible as a matter of law.128

Part 4 of the WFA 2025 does not appear to recognise associative discrimination. 129 It is therefore fortunate that the WFA 2025 has plugged this gap by making “caregiving responsibilities” a fully-fledged protected characteristic rather than a “derivative” of the protected characteristic of “disability”.

Furthermore, this legislative choice is advantageous for an additional reason: discrimination in respect of caregiving responsibilities does not need to depend upon the presence of another protected characteristic (such as disability). This represents an improvement over the English system, where the nature of associative discrimination requires a successful claim to be “parasitic” upon the existence of another protected characteristic. With “caregiving responsibilities” as a standalone protected characteristic, employees caring for children or elderly relatives may be protected even when the recipient of care or support does not themselves possess a protected characteristic. Care-providing employees are therefore protected from discrimination based on the fact of parenthood, or the fact that they may have to make certain sacrifices in the workplace to care for the regular everyday needs of an elderly relative who is physically weak but healthy for their age.

The widened scope of “caregiving responsibilities” therefore sends a message about the particular importance of voluntary caregiving in modern society, and represents a commitment

125 ET 2201937/2018V.

126 ibid [18].

127 ibid [18]. This required that her mother’s disability had a “significant influence” on the outcome.

128 ibid [20].

129 WFA 2025, pt 4.

Once again, the fact of Singapore’s ageing population is relevant. By 2030, an estimated one in four Singapore citizens will be aged 65 and above, with an estimated 83,000 seniors living alone and about 100,000 seniors having at least mild disability which requires some form of everyday assistance. 131 The Singapore government’s policy approach has traditionally been that “families should have the primary responsibility for caring for and coordinating the needs of dependent members”.132 This reflects the fact that older persons prefer to reside in their own homes rather than the more restrictive institutional setting of a care home.133 Strengthening caregiver support has therefore been a key policy goal for the government, and it has sought to ease burdens on caregivers in various ways including financial grants, the provision of information and workplace support.134 The demarcation of “caregiving responsibilities” as a standalone protected characteristic in section 13 of the WFA 2025 is consistent with this policy goal, and constitutes a principled step towards achieving it.

1.7 Race

The protected characteristic of “race” is completely undefined in the WFA 2025. It is slightly concerning that the WFA 2025 appears to take the definition of “race” as being self-evident, given the complexities behind formulating a definition of the term. On the other hand, given the difficulties the English courts have faced in defining “race”, perhaps it is preferable that a

130 Zhao Zheng, ‘Caregiving in Singapore’ (Singapore Department of Statistics 2011) <https://www.singstat.gov.sg/-/media/files/publications/society/ssnsep11-pg12-14.pdf> accessed 11 April 2025.

131 Ministry of Health, ‘Living Life to the Fullest: 2023 Action Plan for Successful Ageing’ (Ministry of Health 2023) 8.

132 Ang Bee Lian, ‘Ageing and Family’ (Ministry of Social and Family Development, 31 July 2018) <https://www.msf.gov.sg/what-we-do/odgsw/social-insights/2018-Ageing-and-Family> accessed 13 April 2025. 133 ibid.

134 ‘Living Life to the Fullest: 2023 Action Plan for Successful Ageing’ (n 131) 42–43.

130 to recognising the range of familial caregiving duties present in society. This is certainly a sensible development for the law to make, in light of social developments in the Singaporean context. Statistics gathered by the Singapore Department of Statistics in 2010 revealed that 8.1% of Singapore residents aged between 18 to 69 years old provided regular care or assistance to family members, with 37% of caregivers reporting that they had provided care for over a decade.130

broad term like “race” be left to the judgement of the court to be decided on the facts that arise in each case.

The scope of this protected characteristic under the WFA 2025 will be examined by comparison with the lengthy definition of “race” under the EA 2010. Furthermore, the approach taken by Singaporean courts to defining race in the context of other legislation may shed light on the approach to be taken under the WFA 2025.

Under section 9 of the EA 2010, “race” includes colour, nationality and “ethnic or national origins”.135 A person who has this protected characteristic is a member of a “particular racial group”,136 which is “a group of persons defined by reference to race”.137 A “racial group” is capable of comprising two or more distinct racial groups.138 Legislation is also in place for the UK Government to amend section 9 by order to provide for caste to be an aspect of race.139 Caste does not presently fall within the scope of the EA 2010, but many of the facts relevant to caste may fall within the wide scope of “ethnic origins”.140 As stated above, nationality is a standalone protected characteristic in the WFA 2025, and will not be a component of “race” under the Singaporean scheme.

A precise definition for the concept of “race” has been elusive in recent UK jurisprudence, especially where “ethnic or national origins” have been involved. This is understandable: it is relatively straightforward to provide a fixed definition for “colour” and “nationality”, leaving “ethnic or national origins” to do much of the heavy lifting for other examples of racial characteristics. On this point, the leading case of Mandla v Dowell Lee established that an “ethnic group” must fulfil two criteria: “a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive”, and “a cultural tradition of its own, including family and social customs and manners”.141 Other criteria were

135 Equality Act 2010, s 9(1)

136 ibid s 9(2).

137 ibid s 9(3).

138 ibid s 9(4).

139 ibid s 9(5).

140 Chandok and another v Tirkey [2015] IRLR 195 (EAT) [51].

141 Mandla v Dowell Lee [1983] 2 AC 548 (HL), 562.

not necessary but relevant for marking a group out as having common ethnic origins: a common geographical origin or common descent from a small number of ancestors, a common language, a common literature peculiar to the group, a common religion different from neighbouring groups or the surrounding community, and being a minority, an oppressed group, or a dominant group within a larger community.142

Yet, the way in which these criteria have been applied appears not to be entirely uniform at times. Therefore, the case law has accepted that Sikhs, Jews, Romany Gypsies, Irish Travellers and Scottish Travellers are ethnic groups, but the Scots, Welsh and English are not ethnic groups.143

These exclusions seem odd: Scotland, Wales and England may all be part of the United Kingdom but they have their own distinct cultural histories and traditions, and each is regarded as a different “nation” within the UK’s system of devolution. 144 Furthermore, there are differences in historical descent between the Scots, Welsh and English, as well as differences in language.145 There are also some religious differences between the Churches of Scotland, Wales and England. Each may be said to have a common literature of its own: for instance, the Scottish admiration for Robert Burns and the English reverence for Shakespeare. The Mandla criteria appear to be fulfilled. It is hard to comprehend the Employment Appeal Tribunal’s (“EAT”) decision in Boyce and others v British Airways plc (cited with approval at [12] in Northern Joint Police Board v Power) that:

“given the wide variations in origin, background and, indeed, race, within Scotland, all of whom can be categorised as ‘Scots’, we cannot find the common racial element within the group being addressed as Scots… Non constat that the Welsh should be regarded as such and, insofar as it is so stated in Gwynedd, supra, we

142 ibid 562.

143 Karim (n 12) 26.

144 House of Commons Library, ‘Introduction to devolution in the United Kingdom’ (UK Parliament, 21 May 2024) <https://commonslibrary.parliament.uk/research-briefings/cbp-8599/> accessed 30 June 2025.

145 Scots and Scots Gaelic are used in Scotland, and Welsh in Wales, although both also use English: Scotland’s Census, ‘Languages’ (Scotland’s Census, 4 February 2025) <https://www.scotlandscensus.gov.uk/censusresults/at-a-glance/languages> accessed 30 June 2025; Welsh Government, ‘Compliance with the Welsh language standards’ (Welsh Government, 27 June 2024) <https://www.gov.wales/compliance-welsh-language-standards> accessed 30 June 2025.

would not agree that the Welsh should be regarded as a racial group based on ethnic origins within the meaning of the Act.”146

Further difficulties arise in the interplay between race and religion. Adams, Barnard, Deakin and Fraser Butlin note that the Mandla factors pose the risk of conflating ethnic and religious identity.147 Thus, the Jewish identity posed certain complexities in R (E) v Governing Body of JFS, 148 due to the concurrent racial and religious nature of the Jewish identity and the possibility of becoming a religious Jew through conversion. 149 It was unclear whether “Jewishness” could fall under “ethnic origins”, since one could assume this identity through conversion.150 The Supreme Court held that the claimant, who had not been classified as Jewish because his mother was not ethnically Jewish and had converted to Judaism through nonOrthodox auspices, had nevertheless been discriminated against on racial grounds.151 This was because the defendant school had assessed the ethnic origin of the claimant’s mother in determining his “Jewishness”.152

Singapore has long prided itself on being a diverse and multiracial society, but the definition of “race” under the WFA 2025 remains elusive. However, as seen above, it is not clear whether a precise definition of “race” would help matters for the purposes of discerning when workplace discrimination takes place. On the contrary, it might simply make the protection of “racial” characteristics too formalistic and limited. Perhaps “race” is simply too broad, nuanced and multi-faceted a descriptor to be given an easily applicable meaning. Courts should instead choose to refine its definition case by case using factors such as the Mandla criteria, as well as conceptions of “race” developed in the national consciousness, as a guide.

146 Northern Joint Police Board v Power (n 32) [12]; Boyce and others v British Airways plc [1997] UKEAT 385/97.

147 Adams, Barnard, Deakin and Fraser Butlin (n 110) 583.

148 [2009] UKSC 15, [2010] 2 AC 728.

149 Adams, Barnard, Deakin and Fraser Butlin (n 110) 583.

150 ibid 583.

151 E (n 148).

152 ibid [45]–[46].

It may be for this reason that “race” and “racial” are not given a clear definition in other references to race in key legislation. The Constitution of Singapore does not contain a definition of “race” at all, 153 despite granting equal protection under the law 154 and equal rights to education 155 regardless of race. In the Penal Code 1871, section 74 provides for enhanced penalties for racially aggravated offences,156 section 298 provides for an offence of wounding the “racial feelings of any person”157 and section 298A provides for an offence of promoting enmity between different groups on grounds of race, 158 yet “race” and “racial” are again undefined in the Penal Code 1871.159 Meanwhile, the recently enacted Maintenance of Racial Harmony Act 2025 has made provision for a Presidential Council for Racial and Religious Harmony,160 restraining orders on “racial content”161 and offences “relating to race”,162 yet the Act does not define “race” anywhere within its body or Schedule.163 For the WFA 2025 not to contain any definition of “race” is therefore simply the logical next step in a long legislative trend, and not necessarily a detriment to the quality or applicability of the legislation.

It is further considered that even in the absence of clear statutory guidelines on the definition of “race”, there are fixed racial classifications used in administrative practice (such as the indication of an individual’s race on his or her identity card). These categories could provide a reliable indicator for the protected characteristic of “race” in many cases. Thus, the range of cases where the existence of that protected characteristic is uncertain and subject to interpretative expansion by the courts may be narrow, and the occurrence of such cases will likely be infrequent.

153 Constitution of the Republic of Singapore.

154 ibid art 12(2).

155 ibid art 16(1).

156 Penal Code 1871 (Singapore) s 74.

157 ibid s 298.

158 ibid s 298A.

159 ibid. See, for instance, the absence of a definition of “race” or “racial” in Penal Code 1871, ch 2.

160 Maintenance of Racial Harmony Act 2025 (Singapore) ss 3–4.

161 ibid pt 3.

162 ibid pt 6.

163 ibid. See, for instance, Maintenance of Racial Harmony Act 2025, s 2 (which defines other important terms but not “race” or “racial”)

This is a notable feature of Singaporean practice that distinguishes itself from administrative practice in England and Wales, where mandatory identity cards are nonexistent and other forms of identity documents such as passports, birth certificates and driving licenses do not feature a “race” section. The existence of a pre-established list of racial classifications in Singapore is therefore likely to go some way towards assuaging the legal inconsistencies and problems of statutory interpretation which troubled the English courts. However, Singapore courts should ideally still be willing to interpret “race” more expansively in cases where justice may require this to be done, rather than adopting an excessively formalistic approach which defers heavily to the executive’s own classifications.

1.8 Religion

“Religion”, like “race”, is not defined in the WFA 2025. Given the nuance behind the idea of “religion”, and the diversity of opinion about what is “religious” and how seriously people take certain beliefs, this will present some difficulties for the courts in more borderline cases.

Section 10 of the EA 2010 also adopts a strikingly circular definition for “religion”,164 with the only elaboration it provides being that it also includes a lack of religion. 165 However, the Equality Act’s Explanatory Notes suggest that this is because section 10 was intended to be construed in line with the right to freedom of thought, conscience and religion guaranteed by Article 9 of the European Convention on Human Rights (“ECHR”).166 It must therefore be read with reference to the ECHR jurisprudence, which specifies that a religion must have a clear structure and belief system.167

On the facts, “religion” under the ECHR has been held to include all mainstream religions, as well as less mainstream religious movements such as Druidism, Divine Light Zentrum, the Osho movement and the Church of Scientology.168 However, the European Court of Human Rights (“ECtHR”) has famously held that “parody religions” like the Church of the Flying

164 Equality Act 2010, s 10(1) (“Religion means any religion”).

165 This would cover forms of non-belief like atheism, agnosticism, scepticism and ignosticism.

166 Explanatory Notes to the Equality Act 2010, para 51.

167 ibid para 51.

168 Bernadette Rainey, Pamela McCormick and Clare Ovey, Jacobs, White, and Ovey: The European Convention on Human Rights (8th edn, OUP 2020) 462.

Spaghetti Monster, which are “intended to call into question the position of religion in contemporary society”, do not fall within the scope of “religion”.169

Singaporean constitutional law has been reluctant to import aspects of European human rights jurisprudence that have entered English jurisprudence by virtue of the UK’s obligations under the ECHR, such as the concept of proportionality.170 Hence, it is more likely that Singapore will adopt a domestic definition of religion from its constitutional law rather than borrowing the broad definition of religion under the ECHR.

Moreover, one thing is clear from the choice of the name given to the protected characteristic. The EA 2010 contains a protected characteristic of “religion or belief”.171 Section 10(2) of the Equality Act defines “belief” separate from “religion” as “any religious or philosophical belief”, including “a lack of belief”.172 This is consistent with Article 9 of the ECHR, which protects freedom of thought, conscience and religion.173 The WFA 2025 appears to cut the protected characteristic in half by specifying only “religion”,174 but it must be determined whether this cuts the protected characteristic in the WFA 2025 down to only “religion” and not beliefs based on a religion or “philosophical beliefs”, or whether religious beliefs are covered but not philosophical beliefs.

On considering Singaporean constitutional jurisprudence, we find that “religion” has been given a much narrower meaning by the Singapore courts than by the ECtHR. In Nappalli Peter Williams v Institute of Technical Education, the Singapore Court of Appeal held that religion was “about a citizen’s faith in a personal God, sometimes described as a belief in a supernatural being”.175 The court proceeded to exclude philosophical choices and beliefs from the scope of

169 De Wilde v The Netherlands (2023) 76 EHRR SE4 [7], [52]–[56].

170 Chee Siok Chin v Minister of Home Affairs [2005] SGHC 216, [2006] 1 SLR(R) 582 [87].

171 Equality Act 2010, ss 4, 10 (emphasis added).

172 ibid s 10(2).

173 European Convention on Human Rights, art 9.

174 WFA 2025, s 8(h).

175 Nappalli Peter Williams v Institute of Technical Education [1999] SGCA 41, [1999] 2 SLR(R) 529 [26].

“religious belief” under the Constitution, even if they were held with “what ironically may best be described as religious fervour”.176

Therefore, the exclusion of philosophical beliefs from the scope of the WFA 2025 is consistent with Singaporean constitutional jurisprudence, and it will likely be interpreted in a similar way. In keeping with the importance of secularism in Singapore’s constitutional arrangements, atheism and other forms of non-belief are likely to also be protected under the WFA 2025 alongside religion and beliefs that stem from religion.177

However, it is worth raising the concern that the Nappalli definition of religion has the potential to impose “a dominant sociocultural attitude concerning religion” upon small minority religions,178 especially since the Nappalli definition appears to exclude certain forms of nontheistic religious belief. Professor Jaclyn Neo argues that this definition of religion is problematic because it may fail to give due accord to an individual’s sincere belief that a certain practice or belief bears religious meaning. 179 It is dismissive of religious viewpoints and simplistically assumes that beliefs can be divided neatly between being of a philosophical or of a religious character, even though many religions contain philosophical tenets about the living of a good life.180

Furthermore, it must be warned that the exclusion of discrimination on grounds of philosophical belief from the Singaporean scheme may open the door to discrimination on the grounds of numerous kinds of deeply held beliefs. The most pertinent example would be political beliefs, such as support for a particular political party or ideology. Of course, there is good justification for extremist and intolerant ideologies such as racism, fascism and homophobia to fall outside the scope of protections against workplace discrimination. Barring such extreme ideologies, however, it is desirable for a pluralistic society to enable individuals

176 ibid [28].

177 Thio Li-Ann, ‘The Secular Trumps the Sacred: Constitutional Issues Arising From Colin Chan v Public Prosecutor’ (1995) 16 Sing LR 26, 37.

178 Jaclyn L Neo, ‘Definitional Imbroglios: A Critique of the Definition of Religion and Essential Practice Tests in Religious Freedom Adjudication’ (2018) 16(2) ICON 574, 582.

179 ibid 582.

180 ibid 582.

to profess support for differing political viewpoints or personal philosophies (such as voluntary veganism) without being disadvantaged in the workplace, as long as they do so in a tolerant way.

It is, of course, understood that the WFA 2025 specifies only “religion”, and it is this legislative wording that must be given respect by the courts. The protection of philosophical and political beliefs, and other deeply held personal philosophies, must thus fall out of the picture, lest the courts exceed their constitutional role by reading in an additional category of protected beliefs which is plainly not in the legislative text. However, it was arguably a missed opportunity for the WFA 2025 to protect only beliefs relating to religious faith (or lack thereof) but not other deeply held personal philosophies which could provide a ground for discrimination. This legislative choice presents an unfortunate curtailment of individuals’ freedom of political expression in the workplace, and may expose them to adverse treatment for personal convictions that pose no harm to others, such as the choice to be vegan.

Lastly, there is an exception to discrimination on the ground of “religion” in section 23 of the WFA 2025, which applies to religious groups as employers. 181 Under section 23, it is not discrimination for a religious group to restrict certain positions connected with the affairs of the religion, or the establishment, maintenance, administration or operation of places of worship or religious institutions, to persons professing that religion. 182 This is a sensible exception to make; it is a reasonable expectation that those managing religious affairs or working at religious institutions should be people professing the relevant religion.

In conclusion, the Singaporean approach to protecting individuals’ freedom of belief in the workplace differs heavily from its ECHR-influenced English counterpart. It is instead likely to draw from the definition of religion in Nappalli, bringing with it the sociocultural problems behind that definition. Meanwhile, although an approach to “religion” under the WFA 2025 that excludes deeply held personal philosophies and convictions is fully consistent with the statutory wording, it may nevertheless be viewed as a lost opportunity to protect individuals’ freedom of belief and expression in the workplace.

181 WFA 2025, s 23.

182 ibid s 23.

1.9 Language Ability

In making an individual’s ability to “read, speak, write or understand any language” 183 a discrete protected characteristic, the WFA 2025 takes a novel step to distinguish itself from its British counterpart. Under the EA 2010, language ability instead falls under the protected characteristic of race, as a few cases have shown.

The English cases regarding language discrimination appear to pull in different directions. In Dziedziak v Future Electronic Ltd, a Polish employee was reprimanded by her line manager for speaking Polish in the office.184 The EAT held that this was direct racial discrimination because the line manager told the claimant not to speak in her “own language”, suggesting an intrinsic link with nationality. 185 Meanwhile, in Jurga v Lavendale Montessori Ltd, a colleague’s complaint to the claimant’s employer about her speaking Polish at work, and the employer’s failure to make progress with said complaint, both amounted to harassment.186

On the other hand, in Kelly v Covance Laboratories Ltd, the claimant’s line manager Mr Simpson was concerned about the claimant’s conduct, and suspected that she was an animal rights activist infiltrating the company. 187 She often used her mobile phone at work in the bathroom for long periods, speaking Russian.188 Mr Simpson therefore instructed her not to speak Russian at work, and when she objected that two Ukrainian colleagues spoke Russian at work, he passed on similar instructions to their line managers. 189 The EAT held that no discrimination or harassment had taken place: any co-worker in a similar situation who raised similar concerns in that working environment would have been treated in the same way,190 and it was not the claimant’s race or national origin that caused Mr Simpson to give the instruction but her behaviour.191

183 ibid s 14.

184 Dziedziak v Future Electronic Ltd [2012] UKEAT 0270/11/ZT [43].

185 ibid [46].

186 Jurga v Lavendale Montessori Ltd ET 3302379/2012 [58]–[60].

187 Kelly v Covance Laboratories Ltd [2015] UKEAT 0186/15/LA, [2016] IRLR 338 [3]–[4].

188 ibid [4].

189 ibid [5].

190 ibid [29].

191 ibid [31].

Arguably, the legislative decision to set aside “language ability” as its own protected characteristic in the WFA 2025 is a principled one, especially in a multilingual society like Singapore. Unfair treatment based on language ability, such as a non-inclusive language policy, can be analysed on its own without having to link it to the protected characteristics of nationality or race. However, in Kelly-type situations where the language policy is adopted consistently and due to the claimant’s behaviour rather than their lack of fluency in the chosen language, it is likely that the policy will still fall outside the scope of discrimination on the ground of “language ability”.

Setting aside “language ability” as a standalone protected characteristic is also a pertinent legislative choice given the prevalence of language discrimination in Singapore. A study in 2018 found that over 20% of ethnic minorities surveyed perceived the level of language discrimination in Singapore to be greater than the previous level in 2013, while close to half of the respondents felt that the level of language discrimination had not changed significantly since 2013. 192 This study demonstrates, in addition to the commonality of language discrimination in Singapore, the high level of intersectionality between “language ability” and the protected characteristic of “race”.

This intersectionality is especially notable in light of the finding in a 2024 study that the most common forms of workplace discrimination against employees from racial minority groups included language use which excluded said employees from participating in conversations.193 Such reported incidents made up 57.7% of the complaints in the study.194 That “language ability” has become a protected characteristic may help to stamp out such cases of discrimination and directly complement the protected characteristic of “race”. This is therefore a welcome change.

1.10 Disability and Mental Health Condition

192 Tessa Oh, ‘1 in 5 ethnic minorities surveyed reported greater language prejudice now than 5 years ago: Study’ (Today, 15 June 2020) <https://www.todayonline.com/singapore/1-5-ethnic-minorities-surveyed-reportedgreater-language-prejudice-now-5-years-ago-study> accessed 30 June 2025.

193 Wei Kai Ng, ‘Racial discrimination at work has fallen, but minorities continue to face more prejudice: IPS study’ (The Straits Times, 4 Feb 2025) <https://www.straitstimes.com/singapore/politics/racial-discrimination-atwork-has-fallen-but-minorities-continue-to-face-more-ips-study> accessed 30 June 2025.

194 ibid.

The WFA 2025 appears to have split “disability” as defined by the EA 2010 into these two protected characteristics, which are perhaps best analysed in conjunction with each other. “Disability”, under section 15 of the WFA 2025, includes the following:195

(a) autism;

(b) any intellectual disability;

(c) any physical disability; and

(d) any sensory disability.

Under section 16 of the WFA 2025, “mental health condition” refers to a diagnosis of any mental disorder by a registered medical practitioner.196

The scopes of these two protected characteristics seem to be complementary, coming together to cover a broad range of conditions. Serious mental health conditions that impair a person’s quality of life, but may not traditionally fall under the scope of “disability”, therefore appear to be covered by the protected characteristic of “mental health condition” as long as the individual has a valid diagnosis.

Furthermore, “disability” has not been given a general definition anywhere in the WFA 2025. Section 15 only provides a list of qualifying disabilities, but there is a possible risk that such a list may be construed restrictively. 197 Therefore, Nithiananthan and Tan have criticised the protected characteristic of “disability” for seemingly leaving out learning disabilities such as dyslexia or ADHD, or chronic medical conditions like long COVID.198

However, it may be possible to suggest that such conditions can all be inserted into sections 15–16, on disability and mental health respectively. This is because section 15 instead leaves the scope of “disability” wide by stating that any intellectual, physical or sensory disability will

195 WFA 2025, s 15.

196 ibid s 16.

197 ibid s 15.

198 Sugidha Nithiananthan and Rayner Tan, ‘The Workplace Fairness Act must go further if we are to stamp out discrimination’ The Straits Times (Singapore, 16 January 2025) <https://www.straitstimes.com/opinion/theworkplace-fairness-act-must-go-further-if-we-are-to-stamp-out-discrimination> accessed 12 April 2025.

qualify. 199 The scope of “mental health condition” is also broad, extending to “any mental disorder” that may be diagnosed by a registered medical practitioner.200 Learning disabilities like dyslexia may fall under “any intellectual disability” in section 15(b),201 ADHD is a mental health condition for which a diagnosis can be obtained in Singapore (hence, section 16), and the physiological effects of long COVID may be considered a physical disability under section 15(c).202

Broad provisions like these result in increased difficulty for the courts to determine how to give them a fixed and applicable meaning. To navigate this conundrum, the courts may opt to take into account the functional approach which has been adopted by the EA 2010.203 In section 6 of the EA 2010, person P has a disability if:

(a) they have a “physical or mental impairment”, and (b) “the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”204

In the absence of clear legislative wording, Singaporean courts may decline to lay down exact guidelines for how long-suffered a condition must be to count as a disability, like the definition of “long-term”: at least twelve months, or the rest of the life of the person.205 However, that “disability” is to be given its “ordinary and natural meaning”, as “impairment” presently is under the EA 2010,206 is a solution which the courts might be pleased to adopt. Under English law, a wide range of everyday domestic activities and social interactions, as well as one’s effective participation in working life, may constitute “day-to-day activities” capable of being

199 ibid ss 15(b)–(d).

200 ibid s 16.

201 WFA 2025, s 15(b).

202 ibid s 15(c).

203 Nithiananthan and Tan (n 198).

204 Equality Act 2010, ss 6(1)(a)–(b).

205 ibid sch 1, pt 1, para 2(1).

206 McNicol v Balfour Beatty Rail Maintenance Ltd [2002] EWCA Civ 1074, [2002] ICR 1498 [17].

adversely affected by a qualifying disability.207 The scope of “disability” is likely to evolve as new cases come in, adapting to different factual scenarios.

On the other hand, the scope of “mental health condition”, dependent as it is on diagnoses from registered professionals, is likely to remain wedded to the psychologists’ understanding of what counts as a mental disorder, and grounded in expert evidence as well as psychological reference materials like the DSM-5-TR. The DSM-5-TR is a standard compendium of mental disorders published by the American Psychiatric Association, and is already treated as an authoritative source by the English courts in assessing whether a claimant in tort has suffered a recognised psychiatric disorder.208

However, there are likely to be some exceptions set on the variety of disabilities and mental health conditions that qualify for inclusion under the protected characteristics. Avoiding conflicts with the criminal law, the Equality Act 2010 (Disability) Regulations 2010 provide examples of certain conditions that do not amount to “impairment”. These include substance addiction, a tendency to set fires, a tendency to steal, a tendency to physical or sexual abuse, exhibitionism and voyeurism.209

It is also noted that seasonal allergic rhinitis is excluded from being an “impairment” under the EA 2010 by reg 4(2) of the 2010 Regulations.210 It would be ideal for the Singaporean courts not to lessen employee protections by adopting an allergy exclusion. However, it is hard to conceive of an employer making adverse employment decisions against an employee due to their hay fever, other than when it is a “genuine requirement” of the job under section 20 of the WFA 2025.211

Lastly, there is an exception to discrimination based on “disability” (meaning it applies only to section 15 and not section 16) in section 24 of the WFA 2025.212 It excludes, from the scope of

207 Karim (n 12) 20–21.

208 Nicholas J McBride and Roderick Bagshaw, Tort Law (7th edn, Pearson Education 2024) 367.

209 Equality Act 2010 (Disability) Regulations 2010, SI 2010/2128, regs 3, 4(1).

210 ibid reg 4(2).

211 WFA 2025, s 20.

212 ibid s 24.

discrimination, decisions not to hire a person because they do not have a disability,213 as well as directions, instructions or policies not to hire a person because they do not have a disability,214 and advertisements or descriptions requiring one to have a disability as a condition for employment.215 In effect, this means that while negative discrimination against the disabled is prohibited, positive “discrimination” in favour of the disabled and against the abled is permitted.216 However, as mentioned above, “disability” is not defined under the WFA 2025, and it remains to be seen how wide or narrow this exception will be in practice.

On the whole, the scopes of the protected characteristics of “disability” and “mental health condition” under the WFA 2025 are open to broad interpretation. It is hoped that the courts will keep these categories wide and open to adaptation as new cases arise and medical science develops. Conversely, any limitations ought to be construed narrowly to avoid impinging on the protection and dignity of disabled individuals in the workplace.

2. TAFEP and the Tripartite Guidelines: A Suitable Alternative?

As a final note, it is true that the possibility of making a complaint to TAFEP under the Tripartite Guidelines on Fair Employment Practices, an option for victims of discrimination that exists today, will continue to exist to cover workers who are not covered under the WFA 2025.217 The range of grounds of discrimination in respect of which a TAFEP complaint may be made is wider than the range of grounds of discrimination prohibited under the WFA 2025.218

Yet, this does not represent a satisfactory substitute for administrative solutions under the WFA 2025, especially due to the lack of power on TAFEP’s part to compel employers to compensate or reinstate a worker.219 Instead, TAFEP would have to refer employers found to have adopted

213 ibid s 24(1).

214 ibid s 24(2).

215 ibid s 24(3).

216 David Smail and Michelle Chua, ‘First Workplace Fairness Bill introduced in Singapore to protect employees against discrimination’ (DLA Piper, 27 December 2024) <https://www.dlapiper.com/en/insights/publications/2024/12/first-workplace-fairness-bill-introduced-insingapore-to-protect-employees-against-discrimination> accessed 14 April 2025.

217 Nithiananthan and Tan (n 198).

218 ibid.

219 ibid.

discriminatory practices to MOM, who could exercise a further layer of discretion to avoid taking any action against the employer. Therefore, between 2014 and the first half of 2021, out of 379 workplace discrimination complaints, 121 were referred to MOM, and 41 resulted in action by MOM against the employer.220 This is a woeful track record, which indicates that the existence of the TAFEP complaint mechanism is unlikely to be a satisfactory substitute for the enforcement mechanism available under the WFA 2025.

Furthermore, the government’s decision to bring forth such legislation has a valuable role in signalling its commitment to stamping out particular kinds of workplace discrimination. Simply referring disgruntled complainants to the existing TAFEP complaint mechanism arguably sidesteps this valuable “messaging” function by allowing recognised, existing forms of discrimination to slip through the cracks. The “message” denouncing workplace discrimination is thus diluted the legislation’s condemnations are rendered both less forceful (due to the lower certainty of enforcement action) and less absolute (due to the differences in availability between the weaker TAFEP mechanism and the stronger WFA 2025 regime).

Therefore, it is advised that the government not leave the lacunae in the WFA 2025’s protections to be resolved by the existing TAFEP scheme, which may provide a weaker safeguard against already-rampant forms of discrimination.221

3. Conclusion

The WFA 2025 has not entered into force and it is yet unclear how the courts will approach its protected characteristics. This article has sought to explore possible ways in which Singaporean courts might follow in the footsteps of the English jurisprudence or deviate from it. As seen above, some protected characteristics represent positive developments in protecting against workplace discrimination, which serve to target pressing social needs in Singapore. Others leave gaps in employee protection that may allow undesirable cases of discrimination to slip through the cracks. It is hoped that the latter will be addressed, and that improvements in the

220 Lighthouse Independent Media, ‘TAFEP received an average of 379 workplace discrimination complaints, of which 41 resulted in enforcement action’ (Human Resources Online, 15 September 2021) <https://www.humanresourcesonline.net/tafep-received-an-average-of-379-workplace-discriminationcomplaints-of-which-41-resulted-in-enforcement-action> accessed 30 June 2025.

221 Nithiananthan and Tan (n 198).

coverage of the protected characteristics will be made by Parliament, by the time that its second planned piece of workplace fairness legislation is enacted.

We are accepting relevant legal training applications for 2026 and internship applications in 2025. For more information, please visit our website at www.drewnapier.com/Careers.

A SHIFT IN THE BALANCE: PROPORTIONALITY IN SINGAPOREAN CONSTITUTIONAL LAW

Priyansh Shah*, Jia Hao Koh** Honourable Mention

I. Introduction

It is by now well held that Singapore’s constitutional rights jurisprudence does not employ the proportionality test.1 While test cases and last-resort cases continue to canvas the possibilities, opportunities, and limits of Singapore’s constitutionally enshrined rights, the judiciary has shown little willingness to employ proportionality review as a tool to protect these rights.2 As clear as it is that proportionality is not presently a part of Singapore’s constitutional jurisprudence, it is almost as clear that prominent voices in the academy argue that it should be. Notably, Marcus Teo argues that proportionality’s enquiries are already inherent in the constitutional rights jurisprudence and political culture of the city-state, and therefore should be readily recognised by the courts as applicable to constitutional rights cases.3

Yet, such a development has not occurred. This article undertakes a comparative analysis of the jurisprudence through which the proportionality test in its modern iterations was first adopted in England vis a vis the Common Law. In doing so, we retrace and mostly endorse Paul Craig’s historical argument (which situates the modern proportionality test in a long history of substantive review mechanisms), before turning these insights towards the position of the Singaporean judiciary that the test is inapplicable in Singaporean law. We then ask two fundamental questions: (1) Why is this the case? (2) In light of these reasons, what would a Singaporean brand of proportionality look like?

* London School of Economics and Political Science (LSE) (LLB Class of 2025)

** London School of Economics and Political Science (LSE) (LLB Class of 2026)

1 Ong Ming Johnson v Attorney-General [2020] SGHC 63 at [232]-[237].

2 For instance, a case is currently before the Court of Appeal regarding the constitutionality of presumptions of guilt in mandatory death cases. 'NUS Law Asst Prof Marcus Teo represents applicants in constitutional challenge to Misuse of Drugs Act' (2025) <https://law.nus.edu.sg/media/nus-law-asst-prof-marcus-teo-representsapplicants-in-constitutional-challenge-to-misuse-of-drugs-act/>

3 Marcus Teo, ‘A Case for Proportionality Review in Singaporean Constitutional Adjudication’ [2021] Singapore Journal of Legal Studies (March 2021) 174.

In response to (1), the authors argue that there are no reasons of principle nor precedent which blocks the use of proportionality review. Proportionality is neither foreign to English, nor (by extension) Singaporean law. The case of Jolovan Wham is examined and it is argued that an embryonic form of the analytical framework of proportionality has seemed to have taken root, albeit significantly defanged from proportionality seen elsewhere in the world. Next, two arguments of principle (i.e the narrow drafting of constitutional rights and the principle of separation of powers) are considered and deemed not fatal to the proportionality-advocate. Lastly, the positive argument is made for proportionality review as an analytical framework, since the nature of constitutional adjudication (and indeed law in general) inherently involves balancing.

In response to (2), the authors argue that despite the fact that the courts can (and indeed perhaps must) employ proportionality reasoning, they should be acutely aware of their institutional position and limitations. Given the current dominant-party system in Singapore’s constitutional landscape, it is argued that a strategy of “maxi-minimalism” should be adopted. Although courts may not be able to answer proportionality-type questions in a sufficiently probing way, they must still ask the right questions.

It is apt to begin with the most emphatic criticism that the Singaporean judiciary has made of the incorporation of a proportionality test into constitutional rights jurisprudence. While this is hardly the only, or, in the authors’ estimation, most incisive critique of the method, it is emblematic of the attitude taken by the courts towards proportionality, and bears striking similarities to English jurisprudential debates from the turn of the millennium. In Chee Siok Chin,4 V K Rajah J (as he was then) stated as follows:5

“Proportionality is a more exacting requirement than reasonableness and requires, in some cases, the court to substitute its own judgment for that of the proper authority. Needless to say, the notion of proportionality has never been part of the common law in relation to the judicial

4 Chee Siok Chin and Others v Minister for Home Affairs and Another [2005] SGHC 216.

5 Ibid at [87].

review of the exercise of a legislative and/or an administrative power or discretion. Nor has it ever been part of Singapore law.” (emphasis added)

While, at the time of writing of that judgment, V K Rajah’s statement may have been a kind of ‘received wisdom’, its veracity has been tested in recent years. This article will now review the English common law on proportionality in the outline and thereby demonstrate that, while the ‘proportionality test’ in its current form is drawn from European jurisprudence, the principles underlying it are available within the common law, drawing upon the work of Paul Craig.

II. Proportionality in English Law

2.1 The proportionality test

First, a brief summary of the proportionality test and its use in English Law is attempted. Per Bank Mellat, 6 the proportionality test can be restated as comprising the following questions:

1) Legitimate aim: Has the measure being adjudged been implemented in pursuance of a legitimate aim or goal? Such a goal is one that is important enough to justify the limitation of rights.

2) Rational connection: Does the measure being adjudged (and its effects) bear a rational connection to the aim pursued?

3) Necessity: Is the measure the minimum possible interference with rights to achieve the legitimate aim? In other words, does a less intrusive measure exist that would have been equally effective?

4) Balancing: Nonetheless, does the measure represent an interference with rights that is disproportionate to the desired outcome?

The proportionality test, in English Law, has been applied in respect of matters of European Community Law and the Human Rights Act 1998. Post-Brexit, the proportionality test’s main role is adjudging the compliance of public and private acts with the latter Act. In this regard, Rajah endorses Wade’s characterisation of proportionality as:7

6 Bank Mellat v Her Majesty's Treasury (No. 2) [2013] UKSC 39 at [74].

7 Chee Siok Chin at [87].

“[having] infiltrated British law, since British law must conform to European Union law. More significantly, it is freely applied by the European Court of Human Rights in Strasbourg, and so is taken into account in Britain under the Human Rights Act 1998.”

2.2 A different species of review?

To break down this premise, the inapplicability of proportionality in Singapore law occurs because Singapore law has no such concept. Singapore law has no such concept due to the lack of such a concept in the common law, as it originates in the European jurisprudence from Strasbourg and Luxembourg. A similar view has been espoused by the Law Lords in England in cases such as Alconbury and Pham. To draw a quote from the former:8

“The European Court of Justice does of course apply the principle of proportionality when examining such acts and national judges must apply the same principle when dealing with Community law issues. There is a difference between that principle and the approach of the English courts in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.” (emphasis added)

Even though Lord Slynn argues later in the same paragraph that the difference between the two approaches is smaller than many have argued, and that proportionality should be applied in matters of domestic administrative law, it is clear in his reasoning that he views proportionality to be a kind of ‘transplant’. To him, proportionality is applicable solely as a result of the UK’s treaty obligations under the European Convention on Human Rights (ECHR) and the various Treaties which constitute the European Union. This judgment, in fact, can be thrown into stark relief against pre-Human Rights Act jurisprudence, where the Law Lords refused the application of proportionality, even knowing that the UK’s compliance with the ECHR would be judged on the basis of proportionality. Per R(Smith) v Ministry of Defence:9

8 R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23 at [51].

9 R v Ministry of Defence, ex p Smith [1996] QB 517 at 541.

“If the Convention for the Protection of Human Rights and Fundamental Freedoms were part of our law and we were accordingly entitled to ask whether the policy answers a pressing social need and whether the restriction on human rights involved can be shown proportionate to its benefits, then clearly the primary judgment (subject only to a limited “margin of appreciation”) would be for us and not others: the constitutional balance would shift. But that is not the position.”

Lord Bingham in this passage declares, as a prequel to the findings of Lord Slynn, that it is indeed the Human Rights Act which allows the English Court to apply a proportionality test, given that the proportionality test is a creature of European law. Here, one can see the crux of the issue: the perceived constitutional position of the Court. Therefore, as a preliminary observation, even those who viewed proportionality as a transplant in the English jurisprudence refrained from its use primarily due to the perceived lack of constitutional authority to do so. This is an argument to which we will return when considering the position of the Singaporean courts.

2.3 A common ancestor

Nonetheless, these early findings of the courts regarding proportionality review’s place in English law have received some controversy since their issuance, from both the bench and the academy. For instance, in Kennedy v Charity Commission, 10 Lord Mance advances an argument, citing Paul Craig,11 that reasonableness review is itself similar to proportionality review, in respect of contextual flexibility:

“[B]oth reasonableness review and proportionality involve considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decision maker’s view depending on the context. The advantage of the terminology of proportionality is that it introduces an element of structure into the exercise, by directing attention to factors such as suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages. There seems no reason why such factors should not be relevant in judicial review even outside

10 Kennedy v The Charity Commission [2014] UKSC 20.

11 Paul Craig, “The Nature of Reasonableness” (2013) 66 CLP 131.

the scope of Convention and EU law. Whatever the context, the court deploying them must be aware that they overlap potentially and that the intensity with which they are applied is heavily dependent on the context.”

While this statement is by no means decisive, it does demonstrate a belief that proportionality and reasonableness are premised on similar principles and techniques of balancing and can therefore be treated similarly in questions of deference and standard of review. Indeed, Professor Paul Craig has gone on to make substantial arguments to say that the principles underlying proportionality have been latent in English law for centuries, spread among procedural norms and ‘proportionability’.

Craig also identifies the principle of proportionability as having been present in English Law for hundreds of years, pulling illustrations of the concept from late 16th to early 19th century jurisprudence. 12 To wit, he claims that proportionability demonstrates that the balancing exercise of modern proportionality has been present in private and public law in England since long before it arose in the context of human rights with Strasbourg’s jurisprudence. More specifically, Craig notes that the concept was heavily used in judicial review. Taking reference to Keighley’s case,13 Craig argues that proportionability had gained a relatively strong footing and had been fleshed out substantially even in the early 17th century. He describes the operation of the principle as it pertains to the repair of damaged sea-walls as follows:

“[I]f a person was bound by prescription to repair a wall against the sea, which was broken through no fault of his by sudden and unusual flow of water, the Commissioners of Sewers should tax all according to the quantity of their land. If however the person charged with repair was at fault and the danger was not inevitable, the Commissioners could charge him to repair it. If the reality was that the danger became inevitable through his fault, those who suffered loss could have an action on the case against him.”

12 Paul Craig, ‘Proportionality and Judicial Review: A UK Historical Perspective’ in S Vogenauer and S Weatherill (eds), General Principles of Law: European and Comparative Perspectives (Hart 2017). 13 (1610-11) 10 Co. Rep. 139a.

We can briskly restate the principle as follows: “statutory burdens upon citizens must be appropriate to their purpose, and proportionate in light of one’s fault and one’s share of the benefit accrued by the imposition of the burden.” This principle was also co-extensive with procedural natural law ideas of ‘proper purpose’, as can be gleaned from the court’s restriction of the King’s power to levy tolls to the extent that, where tolls are collected for a public purpose, tolls could not be collected or used in such a way that was at odds with this purpose. 14 Combined, the doctrines of the 17th century courts created a legal environment in which the statutory burdens at least had to satisfy the first two limbs of modern proportionality (‘legitimate aim’ and ‘logical connection’), as well as the ‘proportionability’ criterion. Craig casts this as a kind of prototypical proportionality doctrine.

The authors do not seek to relitigate the veracity of Professor Craig’s account, but make two observations at this juncture. First, it appears that Craig’s findings are limited to situations where statutory language enables the application of such tests. For instance, the term proportionability is an artefact of statutory language.15 Moreover, the ‘proper purpose’ angle in Hill and cases of that sort is enabled by the inclusion of a purpose to the taxation and tolls adopted by the Crown-in-Parliament. This is to say that the principles that he identifies may not be as generally applicable within the common law as he asserts. This would explain why, as the common law developed more comprehensive doctrines of vires review, statutory interpretation, and procedural judicial review, these ideas fell away to more general devices. In a 20th century court, a case like Hill could be settled by finding collection of taxes that did not serve the purpose set out in the statute to be ultra vires due to improper purpose.16 However, while a 20th century court could apply a similar doctrine where the purpose of a regulatory burden is not explicitly stated, a 17th century court could not have done so using these doctrines alone.

Second, it is not clear that proportionability is a prototypical form of proportionality. Despite the linguistic similarity, the operation of the former doctrine seems in the caselaw to refer to the way statutory burdens are to be proportioned across a class of possible subjects. Referring

14 Hill v Hanks (1792) 2 Bulst. 201.

15 Craig (n 12).

16 Mark Elliott and Jason N. E. Varuhas, Administrative Law (5th edn, OUP 2016) ch 7, 235.

back to Keighley’s case, the reasoning of the judges had little to do with whether the tax charged was proportionate to the aim but rather more to do with whether all subjects to the tax were proportionately charged vis a vis each other. In this regard, it seems more of a test of equitability in application than proportionality in principle. Despite Craig’s own admission that he does not see the concept of proportionability as constituting proportionality, his argument that proportionability required that “regulatory burdens should not be excessive, and that they should be objectively justified,” does not hold for the above reason. From the more limited reading that the authors propose, proportionability would see no issue with legislation that provided for a tax that was excessive but proportioned equitably among the subjects and which had no justification whatsoever. The common law principles Craig describes would justify intervention only for those cases where proportionment is at issue, or the collection and use of the tax is at odds with a statutory objective. Considering that, in Craig’s own account, the limitation (even against individual rights-holders) and objective justification of regulatory burdens is quite central to modern conceptions of proportionality,17 it is by no means clear that the concepts are ‘linked’ in the way that Craig asserts.

2.4 The role of the greater constitutional landscape

The effect of these observations is not to dispute Craig’s conclusion that the culmination of these artefacts is something akin to a test of proportionality, even if it does not constitute the whole. Indeed, Craig is quite right to make the observation that proportionality is not an alien or a ‘transplant’ to English law in an absolute sense.18 Yet, if the links between proportionability and proportionality were at all strong, it would be an absurdity for leading judges to treat proportionality in as alien a manner as they did in cases such as Smith. The observations made in this article therefore develop a middle-ground: while the techniques and concepts employed in proportionality review could be found in the ancient common law, the formality, generality, and degree of power accorded to the judges by the introduction of the doctrine of proportionality in Community and Convention law was indeed unprecedented. Within the genus of substantive review, reasonableness, proportionability, and proportionality can be

17 Craig (n 12).

18 To briefly address ‘transplants’, the authors do not make a definitive claim as to whether transplants can exist in law. However, the authors note that, for much the same reasons that Legrand rejects the possibility of transplants in national legal systems, the act of transplanting a concept often indicates the aptitude of the transplanted concept to the recipient body of law in the first place; P Legrand, ‘The impossibility of transplants’ (1997) 4 Maastricht Journal of Comparative Law.

characterised as three different species, the lattermost of which is related to the former two, but unique.

Per Bingham LJ, then, the stronger inhibition on the introduction of proportionality review by the judiciary is not the shortage of parallel ideas in the common law but rather constitutional norms preventing the judiciary from exercising sufficient power.19 To expand Lord Bingham’s argument, according to the doctrine of parliamentary sovereignty, the law-making power of parliament is unlimited in all respects.20 Furthermore, through the doctrine of the separation of powers in England, law-making power lies solely with parliament and cannot be encroached upon by the judiciary. 21 The paradigm engendered by these principles is one in which, in general, the scope of judicial review of legislative and executive acts is extremely limited. Therefore, in the English constitution, however firmly rooted doctrines of substantive review may have been, the courts were simply not empowered to undertake the extent of substantive review that proportionality demanded. This limitation only gave way when the European Communities Act 1972 (interpreted in Factortame22) and Human Rights Act 1998 granted the judiciary this power.

The authors therefore characterise the development of the proportionality test in the English jurisprudence differently from the account provided by Rajah, following Wade. While the modern doctrine of proportionality owes its operation and structure to European jurisprudence that was integrated into English law by statutes pursuant to treaties, it is by no means true that there were no similar or analogous doctrines of substantive review that bear similarities to proportionality review. While the authors do not share Craig’s optimism that proportionability can be related to proportionality, we argue that substantive review along the lines of purpose, connection to that purpose, and balancing can be found in the caselaw, and that these tests were, like other standards of judicial review in the common law, restricted to a form of statutory

19 Ex parte Smith n 9.

20 Mark Elliott and Robert Thomas, Public Law (5th edn, OUP 2024) ch 6, 258.

21 Ibid, ch 4. Elliott later characterises the doctrine as a means of ensuring accountability. Since accountability is associated with democratic values in the English constitution, and Parliament (the legislative) is the only elected power holder, one emergent view is that the separation of powers serves to better insulate and protect the sovereignty of parliament. If this view is accurate, Bingham LJ’s argument is all the stronger.

22 R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603.

interpretation by the constitutional limitations of the judiciary in English law. Absent these constitutional limitations,23 such principles appear at least prima facie capable of expansion.

On a deeper level, it remains unclear why the choice of one reason for the adoption of a principle precludes other valid reasons to do so. The limits of judicial power, like any other power, are not a question of “why” but rather of “why not”. The “why not”, in the English case, was a lack of constitutional authority, which was changed by legislation. Therefore, even if it were to be true that the proportionality test is a ‘transplant’24 into English law, such a finding should not preclude the application of this test in Singapore law if it were to be constitutionally intra vires to do so. This, it is proposed, is why recent jurisprudence has taken proportionality more seriously and developed more comprehensive constitutional argumentation around it than Rajah did. It is to this jurisprudence that this article now turns.

III. Proportionality in Singapore

In this section, it is argued that proportionality review in Singapore is neither precluded by precedent nor constitutional principle. Regarding the former, it is submitted that Singaporean constitutional case-law has seen an emergence of an imitation of proportionality, albeit not explicitly by name and in an incomplete form compared to standard proportionality analysis elsewhere. As for the latter, the textualist argument against proportionality with respect to adjudicating Art.14 rights is considered and rejected. Further, it is submitted that the principle of the separation of powers, properly conceived, can accommodate proportionality-like reasoning. Engaging in balancing exercises between rights considerations and policy considerations is part and parcel of what courts already do when adjudicating private law cases and hence does not represent a greater incursion into the realm of democratic decision-making of the legislature if such reasoning is adopted to adjudicate public law cases.

A matter of precedent

23 As will be explored later in this article, Article 4 of the Constitution of Singapore provides for Constitutional Sovereignty, which trumps Legislative Acts. Since the judiciary is the chief interpreter of the Constitution, this provision reverses the relationship between the judiciary and the sovereign parliament, removing the constitutional limitations Bingham LJ identifies in England.

24 See: n 18 for discussion on this point

3.1 An alien import?

Singaporean courts have explicitly rejected the notion of proportionality being applicable to Singapore. A key argument put forward has been one from precedent. As the argument goes, proportionality review is a ‘continental European jurisprudential concept’25 which ‘infiltrated British law’26 from the European Court of Justice and European Court of Human Rights. As such, proportionality is alien to both English common law and Singaporean jurisprudence. Thus, as a matter of precedent, proportionality has no place in Singaporean constitutional law.

V K Rajah J (as he then was) observed in Chee Siok Chin that:

‘the notion of proportionality has never been part of the common law in relation to the judicial review of the exercise of a legislative and/or an administrative power or discretion. Nor has it ever been part of Singapore law.’27

Later, the same sentiment was expressed by the High Court in Ong Ming Johnson v AttorneyGeneral, citing the above passage with approval.28

While the first strand of this argument (that proportionality is alien to English law) has been argued (in Section II) as ahistorical, the second strand (that proportionality is alien to Singapore’s autochthonous constitutional jurisprudence) will now be shown to be overstated. Although proportionality review has been explicitly disavowed by name in the two aforementioned cases, such review is not blocked by precedent and has in fact been ‘latent’, as Marcus Teo argues, in Singapore’s constitutional jurisprudence.29 Lastly, it will be argued that a half-baked form of proportionality has taken root in Singapore with the decision in Jolovan Wham, albeit missing a key element of the proportionality inquiry.

3.2 Blocked by Singapore’s autochthonous constitutional jurisprudence?

25 Chee Siok Chin at [87].

26 William Wade & Christopher Forsyth, Administrative Law (9th edn, OUP 2004) 366.

27 Chee Siok Chin at [87].

28 Ong Ming Johnson v Attorney-General [2020] SGHC 63 at [236].

29 Teo (n 3) at 179.

With the decision of the Court of Appeal in Wham Kwok Han Jolovan v Public Prosecutor (“Jolovan”), 30 the previously well-established strong “presumption of legislative constitutionality” has been expressly rejected. Such a presumption had formerly been described as ‘settled law’ (by the court below in Jolovan) which will not be ‘lightly displaced’ (by the court in Chee Siok Chin). To rebut this presumption, the applicant had to demonstrate that the challenged legislation ‘is plainly arbitrary on its face’.31 Otherwise, there will be ‘no practical difference’ between this presumption and the ordinary burden of proof facing any complainant.32 Such a high standard of proof has been observed by Stone Sweet to be a ‘close cousin of “Wednesbury Unreasonableness”’, which ‘virtually no applicant could meet’. 33 Clearly, adherence to this doctrine would leave proportionality wholly inapplicable in Singapore. As Aharon Barak argued in his seminal treatise on proportionality, proportionality review is incompatible with formal deference doctrines, including that of a “presumption of legislative constitutionality”. 34 In Dyzenhaus’ terms, this presumption goes further than “deference as respect” and instead enters the realm of “deference as submission”. 35 A presumption of legislative constitutionality, especially one which may not be lightly displaced, would presume exactly what is meant to be proven by a proportionality analysis.

36 As Barak argued, on a traditional proportionality approach, the presumption of constitutionality may only operate in the threshold stage to ground the imposition of a burden on the complainant to adduce factual evidence proving a limitation of the relevant constitutional right. Once that burden is lifted, the burden should shift to the government to show that a justification exists for imposing such a limitation.

37

30 [2020] SGCA 111.

31 Public Prosecutor v Taw Cheng Kong [1998] 2 SLR(R) 489 at [80].

32 Ibid.

33 Alec Stone Sweet, ‘Intimations of Proportionality? Rights Protection and the Singapore Constitution’ (2021) Sing JLS 231, 236.

34 Aharon Barak, Proportionality: Constitutional Rights and Their Limitations (OUP 2010) at 396-399.

35 David Dyzenhaus, ‘The Politics of Deference: Judicial Review and Democracy’ in Michael Taggart (ed.), The Province of Administrative Law (Hart Publishing, 1997) 279.

36 As the Singapore Court of Appeal observed (at [154]) in Saravanan Chandaram v Public Prosecutor and another matter [2020] 2 SLR 95, ‘relying on a presumption of constitutionality to meet an objection of unconstitutionality would entail presuming the very issue which is being challenged.’

37 Barak (n 34) 445-446.

However, in Jolovan Wham, the Court of Appeal has firmly and rightly held that the presumption of constitutionality could be ‘no more than a starting point that legislation will not presumptively be treated as suspect or unconstitutional’, expressing its ‘disagreement’ with Chee Siok Chin on this matter.38 This sentiment was later repeated by the same court in Tan Seng Kee v Attorney-General, which noted that the courts ‘will not defer to the other branches’ on constitutional challenges to executive action or legislation.39 Hence, courts have made it clear that, as Chan Sek Keong previously argued, there is and should be ‘no difference between the presumption and the ordinary burden of proof on the person asserting unconstitutionality’.40 There is no ground, in principle nor policy, that would justify this abdication of judicial responsibility. Indeed, a key assumption highlighted by the High Court in Lim Meng Suang that the 'legislature would have fully considered all views before enacting the… laws concerned’41 has been revealed by Jack Lee as empirically misguided. Instead, the Singapore Parliament has rarely interrogated the constitutionality of legislation in any detail.42

Admittedly, while the rejection of the presumption of constitutionality does not provide a positive argument that proportionality review is applicable in Singapore, it nonetheless negates a powerful argument that proportionality is “blocked” by Singapore’s autochthonous constitutional jurisprudence.

3.3 Jolovan Wham: Embryonic emergence of proportionality?

Stone Sweet has suggested that the 3-step framework established for adjudicating Art.14 constitutional challenges in Jolovan Wham resembles a ‘rudimentary, if incomplete, form of proportionality review’, even though the court failed to mention the word “proportional” in its judgement at all. 43 Under this 3-step framework, courts are to consider (1) whether the

38 Jolovan Wham at [26], citing Saravanan Chandaram v Public Prosecutor and another matter [2020] 2 SLR 95 at [154].

39 Tang Seng Kee v Attorney-General [2022] SGCA 16 at [12].

40 Chan Sek Keong, ‘Equal Justice Under the Constitution and Section 377A of the Penal Code’ (2019) 31 SAcLJ 773, 833.

41 Lim Meng Suang v Attorney-General [2014] SGCA 53 at [107].

42 Jack Tsen-Ta Lee, ‘Rethinking the Presumption of Constitutionality’ in Jaclyn L Neo (ed), Constitutional Interpretation in Singapore: Theory and Practice (Routledge 2016) 139, 146.

43 Alec Stone Sweet, ‘Intimations of Proportionality? Rights Protection and the Singapore Constitution’ (2021) Sing JLS 231, 237.

legislation restricts the constitutional rights in the first place; (2) whether Parliament considered it “necessary or expedient” to restrict the right in question; and finally (3) whether, ‘objectively, the derogation from or restriction of the constitutional right falls within the relevant and permitted purpose for which, under the Constitution, Parliament may derogate from that right’.44 This formulation of the third stage is admittedly rather unhelpful and instead begs the question. In fleshing out this third stage, the court held that (A) a ‘nexus’ between the purpose of the challenged legislation and one of the permitted purposes under Art.14(2) ‘must be established’, and (B) it is ‘imperative’ that a ‘balance must be found between the competing interests at stake’.45

Stone Sweet observes that the first step in Jolovan resembles the threshold inquiry that triggers proportionality review, while the second step is aligned with the “proper purposes” limb of traditional proportionality analysis. The third step then mirrors elements of various sub-tests in the proportionality analysis. The ‘nexus’ question resembles the “rational connection” test; the court’s ‘concern for narrow tailoring’ resembles the “least-restrictive means” or “necessity” test; and its concern for balancing mirrors proportionality stricto sensu. Nonetheless, he concedes that the court’s approach to questions typically in the “necessity” and “balancing” stages is one of an extreme light touch, being ‘casual at best’, with the court’s discussion on balancing simply ‘restating findings reached under the previous rational nexus analysis’.46

While Stone Sweet is right to point out that questions of balancing were asked, but not answered sufficiently satisfactory as demanded by traditional proportionality review, it is submitted that the same argument cannot be made with respect to the “least-restrictive means” or “necessity” test. He argues that the judgement ‘displays a concern for the logics of leastrestrictive means assessment’ in its observations that (i) the statute did not prohibit the right to peaceably assembly, but made it exercisable with the permission of the Commissioner; (ii) certain categories of public assembly were entirely exempted from the permit regime; and (iii) the Commissioner’s denial of a permit is subject to appeal to the Minister of Home Affairs and

44 Jolovan Wham at [32].

45 Jolovan Wham at [32]-[33].

46 Stone Sweet (n 43) 238-9.

ultimately, the courts.47 However, it is hard to see how these observations feature the logic of necessity. At the heart of the necessity inquiry is the notion of Pareto efficiency: the key question is whether there exists a hypothetical means which (1) could equally achieve the statute’s purpose, and (2) whose limitation of the protected right would be of a lesser extent No hypothetical alternative means were considered, nor was there any logic of the “leastrestrictive” means on the protected right. While the court observed that there were hypothetical means which would have been more restrictive on the right to assemble, this is a distance away from a discussion on whether there were any means which would have been less restrictive on the protected right while still equally achieving the statute’s purpose.

Stone Sweet would likely point to the centrality of the notion of “narrow tailoring” in the necessity inquiry. In Fritz Fleiner’s famous expression, the ‘police cannot shoot a sparrow with a canon’. 48 However, it is argued that the essential notion in the idea of “necessity” is not merely narrow tailoring, but the narrowest tailoring of the statute which may achieve its purpose to an equal extent. It is clear that the court did not ask the latter question. Therefore, while Jolovan Wham has indeed imported some ideas traditionally under the umbrella of proportionality (albeit with a light touch), it cannot be said that all of proportionality’s necessary elements have now found home in Singapore’s constitutional jurisprudence.

On the other hand, Marcus Teo has argued that Jolovan Wham did not import a ‘half-baked form of proportionality review’, but instead introduced proportionality review under Art.14 ‘only for executive rather than legislative acts’.49 He argues that (i) the idea of balancing is not unique to proportionality and it has been established that reasonableness requires balancing of competing interests;50 (ii) the key difference between proportionality and reasonableness lies in the ‘identity of the balancer’;51 and (iii) the court only hinted at a proper proportionality approach to the decision of the Commissioner of Police, an executive act

47 Ibid.

48 Fritz Fleiner, Institutionen des Deutschen Verwaltungsrechts (Tübingen 1928) 404.

49 Teo (n 3) at 204.

50 See Paul Craig, ‘The Nature of Reasonableness Review’ (2013) 66 Current Leg Probs 131, in the context of English administrative law.

51 Teo (n 3) at 204.

Regarding (ii), he sees the court adopting a ‘largely supervisory Wednesbury-esque role’ when it acknowledged that primary decision-making power lay with Parliament, with the court simply determining whether Parliament could have objectively arrived at the conclusion that it did.52 However, it is submitted that the distinction of the “identity of the balancer” is too grey a line to be the distinguishing factor between proportionality and reasonableness.53 Much ink has been spilled on the separating line between the two tests. As Kavanagh noted, due to its variable character, proportionality is not, in itself, more intensive than Wednesbury unreasonableness.54 Similarly, Lord Hoffmann has observed extrajudicially that the ‘intensity of review is not determined by which test is used’. 55 While Teo is right to highlight that reasonableness may also involve a weighing and balancing of interests, it is suggested that the crucial difference between the two tests is instead the more structured and systematic nature of proportionality, which places a greater onus on Parliament and the Executive to justify its acts. Clearly, while still rudimentary, Jolovan Wham developed a structured tool more in line with proportionality review than Wednesbury unreasonableness and placed (at least a symbolic) onus on Parliament to strike a balance between competing interests (albeit with a low evidentiary burden).

Regarding (iii), Teo highlights dicta that even where the Commissioner believes there is a real risk of public disorder, he is ‘not obliged to refuse to grant’ a permit, but ‘may still allow the public assembly to carry on but with certain conditions attached’. 56 Looking to the court’s concern for narrow tailoring, he concludes that proportionality ‘might apply to executive acts under Article 14’. 57 However, the court’s dicta was phrased in permissive, rather than obligatory, language. A dogmatic premise of proportionality review is that the actions of a public body must be proportionate. Otherwise, judicial review would be rendered toothless. Hence, it cannot be said that the dicta in Jolovan Wham establishes justiciable standards of proportionality for executive acts. However, it may be said that the court in Jolovan Wham asks

52 Teo (n 3) at 204.

53 Teo admits that this line ‘may be blurry in practice’ (at 204).

54 Aileen Kavanagh, HRA 243.

55 Lord Hoffmann, ‘The Influence of the European Principle of Proportionality upon UK Law’ in Evelyn Ellis (ed.) The Principle of Proportionality in the Laws of Europe (Oxford 1999) 107, 112

56 Jolovan Wham at [48] and [50].

57 Teo (n 3) at 205.

most, but not all, the questions that a court traditionally asks under a proportionality analysis in relation to legislative acts. Importantly, a means/ends nexus ‘must be established’ and a balance ‘must be found between the competing interests’. 58 While these questions were answered in a manner which was ‘perfunctory at best’, 59 the fact that proportionality-type questions were asked is, in itself, groundbreaking.

A matter of principle

3.4 The textualist rebuttal

Some have argued that the expansive drafting of the qualified rights in the Singapore Constitution entailed a subjective approach to constitutional adjudication, in effect reducing the judicial role to a supervisory body with a self-denying light touch. David Tan observes that the right to freedom of speech in Art.14 of the Constitution may be permissibly restricted by Parliament if ‘it considers necessary or expedient’ for certain specified purposes, with “it” undeniably referring solely to Parliament.60 This may be contrasted to the equivalent provision in Art.10(2) of the ECHR, which requires that restrictions on freedom of speech be ‘prescribed by law and are necessary in a democratic society’. First, the inclusion of the word “expedient” in the Singaporean context confers onto Parliament an ‘extremely wide discretionary power and remit that permits a multifarious and multifaceted approach towards achieving any of the purposes specified in Art.14(2)’.

61 Second, the text of the Constitution seems clear that it is sufficient if Parliament alone considers the restriction “necessary” or “expedient”. Hence, he concludes that proportionality review (and in fact any form of substantive judicial review) is precluded by the ‘plain words’ of Art.14.62 On this view, only procedural judicial review may be appropriate, leaving the courts with a supervisory jurisdiction at best. Similarly, the High Court in Chee Siok Chin described the ‘terms and tenor’ of the qualification clause in Art.10(2) of the ECHR as being ‘very different’ to the equivalent provision in Art.14(2) of the Singapore

58 Jolovan Wham at [32]-[33].

59 Stone Sweet (n 43) 239.

60 David Tan, ‘Walking the Tightrope between Legality and Legitimacy: Taking Rights Balancing Seriously (2017) 29 SAcLJ 743, 764.

61 Chee Siok Chin at [86].

62 Tan (n 60) at 764.

Constitution.63 Hence, the Court of Appeal in Review Publishing v Lee Hsien Loong took the view that Art.14(2) of the Singapore Constitution ‘expressly provides that it is Parliament which has the final say on how the balance between constitutional free speech and the protection of reputation should be struck’.64

However, Marcus Teo has forcefully argued that proportionality review is not necessarily precluded by a reasonable reading of the text of the Constitution, pointing to ‘reasonable disagreements’ as to whether the text rules out proportionality review.65 First, Malaysian courts interpreting the identical provisions in the Malaysian Constitution have adopted proportionality while insisting that they are not ‘rewriting the provisions’. 66 Second, he observes that the Singaporean Government itself suggested that the similar phrasing in s.4 Protection from Online Falsehoods and Manipulation Act 2019 (POFMA) in fact ‘incorporated’, as expressed by the Minister for Law in Parliament, a requirement of ‘proportionality’.67 However, contra Teo, it is difficult to see how s.4 POFMA is sufficiently similar to Art.14 of the Constitution such that the Singapore Government could be said to ‘be of the opinion that Article 14’s wording is wide enough to grant courts the authority to assess the proportionality of rightsrestricting legislative or executive acts’.68 First, the context of s.4 POFMA relates to Ministerial orders, not legislative acts. Second and most importantly, s.4 POFMA merely provides that it is in the public interest to do x ‘if the doing of [x] is necessary or expedient [for several specified purposes]’. However, Art.14 of the Constitution authorises restrictions on freedom of speech if ‘[Parliament] considers [it] necessary or expedient’. It is submitted that the key linchpin in the textualist argument is not the inclusion of the notion of “expediency” in Art.14, but rather the explicit conferral on Parliament to be the final arbiter of what is “necessary” or “expedient”. Indeed, “expediency” is readily compatible with proportionality review. Under the final stage of proportionality stricto sensu, rights infringements must be balanced with other goals in an

63 Chee Siok Chin at [86].

64 Review Publishing Co Ltd and Another v Lee Hsien Loong and Another Appeal [2009] SGCA 46 at [270].

65 Teo (n 3) at 186.

66 Public Prosecutor v Azmi bin Sharom [2015] 6 MLJ 751 at [40].

67 K. Shanmugam, “Second Reading Speech on the Protection from Online Falsehoods and Manipulation Bill” (7 May 2019), online: Ministry of Law <https://www.mlaw.gov.sg/news/parliamentary-speeches/second-readingspeech-by-minister-for-law-k-shanmugam-on-the-protection-from-online-falsehoods-and-manipulation-bill> at paras 254, 309.

68 Teo (n 3) at 186.

“expedient” cost-benefit analysis. Hence, one may not point to the Singapore Government’s acceptance that s.4 POFMA introduces a justiciable requirement of proportionality to argue that it also accepts that Art.14 of the Constitution opens the door to proportionality review.

Nonetheless, in light of the Court of Appeal’s decision in Jolovan Wham, the authors argue that the text of Art.14 does not necessarily preclude proportionality review. The court rejected a “subjective approach” to Art.14(2), where it would be sufficient if Parliament subjectively considered the restriction to be “necessary” or “expedient”. Instead, it favoured an objective approach, in light of the constitutional principle of the rule of law (as encapsulated by the Court of Appeal’s famous declaration in Chng Suan Tze that ‘[a]ll power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power’ 69 ). Otherwise, the right to freedom of speech as contained in Art.14(1) would be rendered ‘wholly toothless’ and ‘without any real force or effect’.70 Hence, even on a purely textualist reading, a subjective interpretation of Art.14(2) is untenable, since it would leave the provisions in Art.14(1) without any real effect. A textual interpretation of the Constitution which merely considers a single sub-section is a parochial approach which no reasonable textualist should adopt. Therefore, reading Art.14(2) in conjunction with Art.14(1) reveals that an objective approach should be adopted.

At the same time, the court in Jolovan Wham acknowledged that the Constitution vested Parliament with the ‘primary decision-making power regarding whether a derogation from the right is necessary or expedient’. Interestingly, this is a way off from the opinion of the same court in Review Publishing v Lee Hsien Loong that the text of Art.14(2) is clear that Parliament ‘has the final [and not merely primary] say’.71 The court in Jolovan Wham then concludes that ‘the key question is whether the statutory derogation is objectively something that Parliament thought was necessary or expedient in the interests of public order and whether Parliament could have objectively arrived at this conclusion’.72 If one adopts such an objective approach

69 Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR(R) 525 at [86].

70 Jolovan Wham at [22]

71 Review Publishing Co Ltd and Another v Lee Hsien Loong and Another Appeal [2009] SGCA 46 at [270].

72 Jolovan Wham at [24] (emphasis added).

to Art.14, proportionality review is not necessarily precluded. On this view, the deference that the text compels be afforded to Parliament is merely one of “respect”, not “submission”.73

3.5 Constitutional authority and the separation of powers doctrine

Per Montesquieu's seminal account of the doctrine of the separation of powers, the separation of powers is a tripartite separation of ‘law-making’, ‘law-applying’, and ‘adjudication’, which correspond to the legislature, executive, and judiciary respectively.74 In this account, separation is understood by most scholars to mean ‘autonomy’, which is to say that the branches of power should not encroach on or perform the function of another.75 Yet, this model is overly simplistic.

First, one can observe in the constitutional structure of most modern states instances of overlap. Moreover, such overlap is often normatively preferable to a total separation, as most would accept is the case with judicial review. For another example, most agree with the legitimacy of delegated legislation and delegated powers of rule-making as well as proto-judicial organs in regulatory agencies. In some constitutions, including that of the United States, there are even instances of the legislature sitting as a court, as is the case in impeachment proceedings, which are again essential to the prevention of arbitrary rule and executive impropriety. Therefore, per Rubin’s ‘network theory’ of the separation of powers along with Bagehot’s characterisation of the ‘peculiar genius’ of the English constitution, overlap is not only an empirical fact of constitutional design and practice but often enough one to be lauded as well.

Second, the definition of separation applied in the classical account is insufficient. Sandro provides a more precise account; Sandro characterises separation not as simple autonomy (nor ‘deference’) but rather as a matter of ‘independence’, which requires non-usurpation rather than non-intervention or non-cooperation. 76 Furthermore, Sandro characterises ‘powers’ as having institutional and functional manifestations. Taken together, Sandro rejects the idea that the separation of powers is about non-intervention in its entirety. On his account, the separation

73 Dyzenhaus (n 35) 279. Dyzenhaus distinguishes between two forms of deference (“deference as respect” and “deference as submission”).

74 Baron de Montesquieu, The Spirit of the Laws (Thomas Nugent (tr)) (Michigan: Haffner Press, 1949)

75 Jaclyn Neo, ‘Autonomy, Deference and Control: Judicial Doctrine and Facets of Separation of Powers in Singapore’ (2020) 5(2) JICL 461.

76 Paulo Sandro, Making of Constitutional Democracy: From Creation to Application of Law (Hart 2022) ch 7

of powers requires that institutions do not usurp other institutions and that they maintain Waldronian77 functional separation among their functions, resulting in two axes of separation. While, on this model, much like the classical account, it is impossible for all powers to be separated all the time, the former lacks the binarism of the latter. It allows that a state could have ‘some degree’ of separated powers. Then, taking on the Waldronian insight that the separation of powers is a ‘central case’ from which deviations must and can be justified, this composite model allows much greater accuracy in describing the manner in which the separation of powers operates in the real world, while allowing one to justify, on legal or political grounds, overlaps in the employment of powers such as proportionality.

There remains a rich discussion to be had as to what the ideal or most accurate theory of the separation of powers might be but, in the context of Singaporean constitutional rights jurisprudence, the above is sufficient to show that the classical and deference model are lacking in that one must accept the legitimacy of some usurpations, of which judicial review is surely one. Once it is accepted as an empirical fact that judicial review, delegated legislation, impeachment, and other modern instruments constitute overlaps or usurpations of functions, and accepted as a normative claim that these mechanisms are desirable, the authors propose that Neo’s ‘control’ conception is a viable and desirable model of the separation of powers where Kelsenian78 constitutional courts are concerned.79 It should be noted that, per Article 4 and 93 of the Constitution, as well as references to Constitutional Cases in the Rules of Court,80 Singapore’s Supreme Courts could be considered Kelsenian constitutional courts. Indeed, as has been demonstrated in this section, they have performed this role in a number of cases.

3.6 The legal basis of proportionality

77 Jeremy Waldron, ‘Separation of Powers in Thought and Practice’ [2013] 54 BCLR 433

78 Kelsen famously endorsed the model of apex or constitutional courts maintaining constitutional norms in his essay “Who Ought to be the Guardian of the Constitution?”; Lars Vinx, The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law (CUP 2015) ch 4 at p174.

79 Cf. ‘Guarantor Institutions’; Tarunabh Khaitan, ‘Guarantor Institutions’ [2021] 16(1) Asian Journal of Comparative Law 40.

80 Supreme Court of Judicature Act (Chapter 322) Rules of Court 2021 (O.30).

Thus far the authors have sought to argue that proportionality reasoning is not blocked by precedent or principle. However, can an argument be made that there is a positive legal basis giving courts the power (or perhaps duty) to engage in proportionality review?

First, in the context of the Article 9 right to life, Jhaveri sees the attached proviso that any restriction on Article 9(1) must be “in accordance with law”, as providing the legal basis of using ‘(albeit embryonically) similar analytical considerations as traditionally found within proportionality’.81 She highlights how “law” has been interpreted by the Singapore courts to include the concept of “fundamental rules of natural justice” (FRNJ).82 Notwithstanding the fact that the courts have thus far refused to recognise any substantive (as opposed to procedural) content in the concept of FRNJ or “law”, Jhaveri argues that they can and should do so. She seems to proceed from a “thick” conception of the rule of law, seeing “law” as having ‘a much broader scope and, more importantly, stronger aspirations’.83 The debate over “thin” and “thick” conceptions of the rule of law is well-trodden and lies beyond the scope of this article. Nonetheless, it should be noted, as Thio Li-ann has observed, that the ‘dominant conception’ of the rule of law in Singapore is a “thin” one, with “law” serving the ‘imperative of efficiency and stability’. 84 In the twenty years since Thio’s observation, while Singapore has seen an emergence of Neo-Confucianist arguments setting limits on the Hobbesian state, “law” remains a ‘minor player in this universe’ dominated by politics.85 Hence, it is difficult to find in “law” these ‘stronger aspirations’ that Jhaveri attributes to it.

Second, and more convincingly, a recognition of the nature of constitutional adjudication as inherently involving balancing reveals that engaging in balancing exercises is part and parcel of what courts already do when adjudicating between competing constitutional rights. Indeed, balancing is what courts do in relation to adjudicating private law rights as well. As Lord Sales and Wilmot-Smith argue, the only way to avoid directly balancing incommensurable values

81 Swati Jhaveri, ‘The broader case for developing the content of fundamental rules of natural justice under Article 9 of the Constitution’ in Jaclyn Neo (ed.), Constitutional Interpretation in Singapore: Theory and Practice (Routledge 2017) 188, 188.

82 E.g Tan Eng Hong

83 Jhaveri (n 81) at 199.

84 Thio Li-ann, ‘Lex Rex or Rex Lex? Competing Conceptions of the Rule of Law in Singapore’ (2002) 20(1) UCLA Pacific Basin Law Journal 1, 75.

85 Ibid.

would be to create a strict ordering between different values and rights.86 For example, we could create a lexical priority rule that says that free speech trumps prosperity. In that case, even the most minimal showing of free speech values should take precedence over any considerations relating to prosperity. However, such an approach sacrifices flexibility for clarity and therefore all legal orders (rightly) lack such a strict ordering of rights and values. Hence, courts inevitably engage in balancing exercises in the whole of law, not being limited to proportionality review in public law. As such, Stone Sweet and Mathews have argued that ‘[a] court that explicitly acknowledges that balancing inheres in rights adjudication is a more honest court than one that claims that it only enforces a constitutional code, but neither balances nor makes law’. 87 As Paul Craig observed in the context of English administrative law, reasonableness review also involves weighing incommensurable values, albeit in a more opaque way.88 Hence, seen against this backdrop, the analytical framework of proportionality review cannot be rejected, since it involves things which courts must and do in fact consider. Additionally, it is important to recognise that proportionality review does not mandate a certain intensity of review, but merely provides a framework by which to adjudicate constitutional claims.

IV. Proportionality and judicial statecraft

Glendower: I can call the spirits from the vasty deep.

Hotspur: Why, so can I, or so can any man; But will they come, when you do call for them?

William Shakespeare, King Henry IV

As Justice Stephen Breyer noted in his Scalia Lecture, the central question facing all apex courts is: “Why does the… public do what the Supreme Court says?”89 Indeed, as Alexander Hamilton observed in Federalist No. 78, the judiciary ‘has no influence over either the sword

86 Phillip Sales & Frederick Wilmot-Smith, ‘Justice for Foxes’ (2022) 138(Oct) LQR 583, 586.

87 Alec Stone Sweet & Jud Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47 Colum. J. Transnat'l L. 73, 88.

88 Paul Craig, ‘The Nature of Reasonableness Review’ (2013) 66 Current Legal Problems 131.

89 Justice Stephen Breyer, 2021 Scalia Lecture, Harvard Law School.

or the purse, … but merely judgment’.90 With the Singaporean constitutional context occupying the intersection between American constitutional supremacy and British parliamentary supremacy, the American and British judicial experiences will be briskly examined. Ultimately, it will be argued that a strategy of ‘maxi-minimalism’, as coined by Yvonne Tew,91 presents the best way forward for the Singaporean judiciary. In view of the courts’ relatively weak institutional position, especially considering the backdrop of a PAP supermajority in Parliament, it is argued that courts should issue narrow rulings to avoid political backlash. Nonetheless, courts should further develop the proportionality analysis which first took root in Jolovan Wham. In the spirit of the Chinese proverb “韬光养晦” (“hide your strength, bide your time”), the courts should adopt Marbury-style reasoning which expands judicial power. Perhaps “expansion” is a misnomer, implying that courts should fashion new powers it does not have. Rather, as it has been argued in the preceding sections, as a matter of precedent and principle, the judiciary possesses the power under Singapore’s constitutional arrangement to engage in proportionality-type review.

Lastly, the authors seek to challenge the argument from “political culture” put forward by various commentators on both sides of the debate. While David Tan and Jaclyn Neo point to Singapore’s ‘neo-Confucian ethos’92 and culture of trust in a government of junzi, 93 Marcus Teo sees a ‘burgeoning political culture of justification’ in Singapore. 94 However, it is suggested that the more fruitful and appropriate lens is instead from the perspective of trust in the courts, rather than trust or distrust in government. Therefore, an emergent political culture of justification may not necessarily buttress the normative argument in favour of proportionality review by the courts.

Maxi-minimalism: The Marbury way

90 A Hamilton, J Madison, and J Jay, The Federalist Papers (first published 1787, Macmillan 2009) 408.

91 Yvonne Tew, ‘Strategic Judicial Empowerment’ (2021) 71(3) American Journal of Comparative Law (forthcoming).

92 Tan (n 60) at 767.

93 Jaclyn Neo, ‘Autonomy, Deference and Control: Judicial Doctrine and Facets of Separation of Powers in Singapore’ (2018) 5(2) JICL 461.

94 Teo (n 3) at 196.

As coined by Yvonne Tew, the “Marbury” or maxi-minimalist strategy involves ‘maximalist reasoning that expands judicial power even as it results in a narrow holding that avoids provoking a fight with the governing political power’.95 Losing the battle might be necessary to win the war. In Marbury v Madison, two conceptions of the judicial role in the American constitutional system were set in opposition. On one hand, Alexander Hamilton conceived the judiciary as the ultimate arbiter of whether the rest of the branches of government acted unconstitutionally. On the other hand, Thomas Jefferson rejected judicial review, seeing each branch of government as ‘truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action’.96 In Marbury v Madison, Chief Justice John Marshall wholeheartedly adopted Hamilton’s vision of the judiciary and boldly declared that ‘it is emphatically the province and duty of the judicial department to say what the law is’, 97 laying the foundations of judicial supremacy now indisputable in American constitutional law. However, the Supreme Court nonetheless ruled in favour of Jefferson by striking down a previous Act of Congress which gave the court jurisdiction over the case in the first place. In a brilliant manoeuvre, the court simultaneously expanded its power while averting a constitutional crisis and political backlash from thenPresident Jefferson.

Mini-maximalism: The Miller way

Inversely, Yvonne Tew describes a judicial strategy of mini-maximalism, which ‘involves reasoning that seeks to downplay the expansion of the judiciary’s power, typically justifying the decision as orthodox legal doctrine or employing formalistic interpretation, while delivering a ruling of immediate constitutional and political consequence’.98 The UK Supreme Court’s decision in Miller II is a paradigmatic example. Writing for a unanimous court, Lady Hale presents her description of the executive-Parliament relationship as relying on ‘the foundations of [the UK’s] constitution’. 99 While she sought to characterise her analysis as

95 Tew (n 91) at 65.

96 Letter to Judge Roane (Sept. 6, 1819) The Writings of Thomas Jefferson 212, 214 (Bergh ed. 1904).

97 Marbury v Madison [1803] 5 U.S. 137, 177

98 Tew (n 91) at 10.

99 R (Miller) v The Prime Minister (“Miller II”) [2019] UKSC 41 at [55].

‘entirely orthodox’,100 it instead represented a sea-change establishing the courts as the ultimate arbiters of the limits of parliamentary sovereignty. Striking down as unlawful the Prime Minister’s decision to advise Her Majesty to prorogue Parliament, she declared that ‘it is [the courts’] particular responsibility to determine the legal limits of the powers conferred on each branch of government’. 101 And in a speech shortly after the Miller II decision, Lady Hale described the British courts as ‘the guardians of the constitution’.102

The political backlash was clear. Leader of the Commons Jacob Rees-Mogg was said to have slammed the decision as a ‘constitutional coup’,103 and a Bill was introduced to revive the prerogative power to dissolve Parliament, emphasising the non-justiciability of this power.104 More broadly, the Government proposed reforms aimed at ‘affirming the role of the courts as “servants of Parliament”’, commenting that ‘the reasoning of decision makers has been replaced, in essence, with that of the court’.105 However, the Judicial Review and Courts Act 2022 eventually enacted was only relatively modest in scope. While the British courts have come out of this supposed constitutional moment largely unscathed, it is still far from clear that the UK Supreme Court has indeed, as Lady Hale envisioned, assumed the mantle of the guardian of the constitution, and by extension, the guardian of parliamentary sovereignty.

The Singapore way: Marbury or Miller?

At this juncture it is imperative to appreciate the relatively weak institutional position of the courts. A court only wields authority if there exists a habit of obedience from constitutional actors, accepting its legitimacy and authoritativeness from what H.L.A. Hart described the “internal point of view”. 106 A brief excursion through American constitutional history

100 Aileen McHarg, ‘The Supreme Court’s prorogation judgement: guardian of the Constitution or architect of the Constitution?’ (2020) 24 Edinburgh L. Rev. 88, 94.

101 Miller II (n 99) at [39].

102 Brenda Hale, Deputy President of the Supreme Court, ‘The Supreme Court: Guardian of the Constitution?’ (Speech at The Sultan Azlan Shah Lecture, 9 Nov 2016)

103 Supreme Court: Suspending Parliament was unlawful, judges rule, BBC News (Sept. 24, 2019), https://www.bbc.com/news/uk-politics-49810261

104 Fixed-term Parliaments Act 2011 (Repeal) Bill (2020)

105 Judicial Review: Proposals for Reform (2021) paragraph 2 https://consult.justice.gov.uk/judicial-reviewreform/judicial-review-proposals-for-reform

106 H.L.A. Hart, The Concept of Law (Clarendon 1961).

highlights that judicial supremacy was not established solely by the single judgement in Marbury. Following the 1832 decision of Worcester v Georgia, President Andrew Jackson was said to have remarked: “Chief Justice John Marshall has made his decision; now let him enforce it!” Famously, as late as 1957, President Eisenhower had to send in federal troops to enforce the Supreme Court’s decision in Brown v Board of Education that racial segregation was unconstitutional. Decided three years prior, Brown was left unenforced in southern States. Ultimately, what truly led to desegregation was a political shift, with the courts playing an essential, but not the only, role.

As Yvonne Tew observes, courts tend to assert themselves ‘during moments of political or constitutional crisis’. 107 In the UK, the Miller II judgement was delivered in a politically feverish context of a potential “no-deal” Brexit, involving a ‘disruption of the constitutional order’. 108 A similar phenomenon can be observed across the Strait from Singapore. Accompanying the weakening and subsequent collapse of dominant party rule in Malaysia in 2018, the Malaysian Federal Courts have boldly reached for self-empowerment. The twin decisions of Semeniyh Jaya in 2017 and Indira Gandhi in 2018 established the basic structure doctrine as part of Malaysian constitutional law, empowering the Malaysian courts to strike down constitutional amendments which are incompatible with ‘critical’ and ‘sacrosanct’ features of the constitution, such as the separation of powers and the independence of the judiciary.

109

With the PAP retaining a supermajority in Parliament, any direct confrontation between the courts and the Government is certain to end disastrously for the courts. After the Court of Appeal struck down executive detention orders in its 1989 decision in Chng Suan Tze, the relevant authority proceeded to simply re-issue the orders and detain the same persons. Thereafter, Parliament amended the constitution to oust judicial review of future detention orders. If the courts were to overplay their hand, they might find themselves in a similar situation as the US Supreme Court in the Lochner era of the early 1900s, where excessive striking down of federal New Deal legislation led to President Roosevelt’s threat to effectively

107 Tew (n 91) at 79.

108 Tew (n 91) at 80.

109 Semeniyh Jayah at [90].

“pack” the court in 1937. The supermajority that the PAP still currently enjoys would make this a simple feat, especially if public perception sees judicial activism as judicial tyranny.

As Paul Freund famously commented, the judge ‘should never be influenced by the weather of the day but inevitably they will be influenced by the climate of the era’. The realities of Singapore’s political landscape mean that even if the courts should, by precedent and principle, exercise a more intrusive proportionality-type inquiry in judicial review, the implementation of ‘full-blown’ proportionality review would, as Jhaveri observed, ‘clearly be impossible’. 110

Conor Gearty observes that landmark human rights decisions made in defiance of a national legislature or executive are often enabled by a multiplicity of decisions that do not challenge status quo. His pithy conclusion is apropos to the approach we endorse:111

“Courts exploit the paradox of their strength lying in their weakness so as to ensure that sometimes, in the wider public interest as they see it, the latter must be allowed to triumph over the former.”

However, the reality that the time has not yet come for proportionality review in earnest does not justify an abdication of judicial responsibility. Otherwise, a recognition of a lack of judicial power, if sufficiently prolonged, would in effect foreclose the opportunity for the judiciary to “do its job” if and when a more favourable climate arises in the future. Hence, the Marbury strategy presents the correct path forward, balancing considerations of the court’s institutional position with the judicial duty to “do its job”. As Jhaveri argues, it is possible to gradually and incrementally incorporate aspects of proportionality into ‘the justificatory conversation relating to permissible restrictions on rights’.112 On this view, the court in Jolovan Wham has taken a welcome first step. While the courts may not always be able to provide the right answers, they must ask the right questions.

The argument from political culture

110 Jhaveri (n 81) at 200.

111 Conor Gearty ‘Human Rights Law’, in R. Masterman and R. Schütze (eds.) The Cambridge Companion to Comparative Constitutional Law. (Cambridge University Press 2019), pp. 291–311, 310.

112 Jhaveri (n 81) at 200 (emphasis added).

Lastly, the authors seek to comment on the line of argument from political culture expressed in the academy. On the one hand, Jaclyn Neo characterises Singapore’s political culture as one of ‘trust’ in a government of junzi (“honourable men”).113 Accordingly, one would conclude that, as a matter of policy, proportionality would be unsuited to Singapore’s political culture’. On the other hand, Marcus Teo makes the forceful argument that Singapore now has a ‘burgeoning political culture of justification’,114 pointing to Heng Swee Keat’s comment that there has been a shift from ‘leading from the front’ to a more ‘consultative’ and ‘inclusive’ approach.115 While Singaporeans do not require government to justify their actions with respect to the ideals of Western liberal democracy, Teo argues that this culture of justification is not committed to any substantive political theory, but is rather procedural in nature (i.e that government action is expected to be justified with reference to the political philosophy of that particular polity). Since proportionality as such is content-agnostic, he argues that, as a matter of policy, proportionality review should be adopted.

With all due respect, arguments from political culture seem to miss the point. First, arguing from political culture to a legal doctrine of proportionality may be putting the cart before the horse. It is not fatal to the proportionality-advocate if she admits that Singapore does not currently have a political culture of justification. Instead, the adoption of proportionality review by the courts can contribute to a culture of justification. Second, the argumentative link from political culture to the judicial role may not be entirely solid. Establishing that there is an (undeniably) increasing political culture of consultation and deliberative consensus in legislative decision-making may not entail that the courts should now be able to conduct this balancing on behalf of the legislature. As Teo himself highlights, the difference between proportionality and Wednesbury review ‘lies in the identity of the balancer’,116 with the courts themselves conducting the balancing in the former and exercising a ‘supervisory justification’ in the latter. Hence, the presence (or absence) of a political culture of justification does not seem to be a prerequisite for the judicial doctrine of proportionality.

113 Neo (n 93).

114 Teo (n 3) at 196.

115 Heng Swee Keat, “Building Our Future Singapore Together” (15 June 2019) Prime Minister’s Office <https://www.pmo.gov.sg/Newsroom/DPM-Heng-Swee-Keat-Building-Our-Future-Singapore-TogetherDialogue>.

116 Teo (n 3) at 204.

V. Conclusion

This article has undertaken a review of arguments against and for the introduction of proportionality review in Singapore’s constitutional rights jurisprudence, employing a comparison with the development of the doctrine in England for a more complete position. In this endeavour, the authors hope to highlight two key points.

First, different limitations prevent courts from employing proportionality in the two jurisdictions. In the English jurisdiction, the proportionality test was not available to courts for both political and legal reasons. To briefly restate them, political resistance was drawn from the ‘foreign-ness’ of the test, while legal resistance came from the lack of constitutional authority of the judiciary in the English constitution. To wit, even if the courts recognised the aptitude of the test to the circumstances (as in Smith), the judiciary was unable to act upon this recognition due to the ultimate supremacy of Parliament (per Bingham). In the Singaporean context, there remain technical legal limitations (e.g. the narrow drafting of constitutional rights provisions), but the more troublesome limitation upon the judiciary is political. To wit, even if the courts recognised a power to strike down or read down legislative acts or executive conduct, they would still be unwilling to do so due to the political climate. Approaches to the introduction of proportionality review in Singapore would therefore have to be more modest, accounting for the fact that an act like the Human Rights Act 1998 would not be forthcoming, and moves on part of the judiciary to emulate its effects according to the Singapore Constitution are unlikely to be well-received.

Second, however, the doctrinal and constitutional resources do exist for the introduction of proportionality review in Singapore. This article’s in-depth consideration of Marcus Teo’s proposals and the academic pushback they have received, along with the caselaw on proportionality at present, lights a path through the forest; the introduction of principles without the exertion of their full weight. The authors endorse the maxi-minimalist approach as the approach that best reflects this unique constitutional moment in Singaporean history, where Singapore’s law, culture, and politics exist in a state of flux, attempting to preserve the stability of the old with the promise of the new. Maxi-minimalism, articulated in proportionality review through the reading down of the necessity and balancing limbs in line with the Constitutional text so as to allow greater deference to Parliament, allows the vindication of junzi while also

presenting future opportunities for Singaporean constitutional law to grow into a true guarantor of norms of justified governance.

Change is inevitable. Every generation lives different truths than the last. For constitutional jurisprudence to remain blind to that fact is folly, the end of which is instantaneous and unscheduled change driven by prevailing forces in the political climate. The alternative, favoured by the authors, is that Singapore face the future with open eyes and sharp introspection, to champion and usher in the change that suits her best.

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STANDING AT CROSSROADS: THE GROWING

CONVERGENCE OF STANDING RULES IN SINGAPORE AND THE UK

Wei Pheng Koon*

I. Introduction

Public law is not traditionally a place from which clear instances of convergence between different legal jurisdictions have been found.1 Various reasons have been offered to account for this, including differences in constitutional values, cultures and heritage. 2 Against this backdrop, calls – stretching back for more than a decade – have been made for Singapore to mature ‘a large body of local jurisprudence’3 distinctive of an ‘autochthonous legal system’4 divorced from traditionally closer relationships with English law. As Swati Jhaveri more recently observed, such calls have translated into tangible action: Singapore courts ‘have started to break the connection with English law in advancing the reach of administrative law’.5

In the context of the rule on standing or locus standi to seek judicial review, particularly, Jhaveri’s comments seem, at first glance, to be highly accurate, not least because of the different models of standing rules adopted in both jurisdictions. In the English context, a claimant must demonstrate ‘sufficient interest’ 6 to establish standing, an approach Singapore initially

* University of Cambridge, BA (Hons) in Law, Class of 2027

1 See for example David Law and Mila Versteeg, ‘The Evolution and Ideology of Global Constitutionalism’ (2011) 99(5) California Law Review 1163.

2 See Mathias Siems, Law in Context: Comparative Law (3rd edn, CUP 2022) 316.

3 Chan Sek Keong, ‘Judicial Review – From Angst to Empathy’ (2010) 22 Singapore Academy of Law Journal 469, 470.

4 See further Singapore Law Review Editorial Board, ‘In Conversation: Prof Geoffery Wilson Bartholomew’ (1985).

5 Swati Jhaveri, ‘The Evolution of Administrative Law in Singapore’ in Swati Jhaveri and Michael Ramsden (eds), Judicial Review of Administrative Action Across the Common Law World: Origins and Adaptation (CUP, 2021) 233.

6 Senior Courts Act 1981, s 31(3).

adopted.7 This has, however, been discarded in Tan Eng Hong v Attorney-General8 in favour of ‘rights-based standing rules’.9 Under this approach, the claimant must show that the state violated an identifiable constitutional right.

Representative standing is another area of divergence. English standing rules are generally branded as being more expansive than Singapore’s. 10 Since the assertion in Fleet Street Casuals 11 that ‘technical rules’ of standing should not prevent ‘a pressure group, like the [claimant], or even a single public-spirited [party]’ from getting a court to ‘vindicate the rule of law and [getting]…unlawful conduct stopped’, representative forms of standing, particularly in the form of associational and public interest standing, 12 have flourished in the English context. Contrastingly, representative standing has generally not found favour with Singaporean courts; claims of standing are successful only if the applicant can display some form of personal connection to the case.13

A. The Traditional Green-Light/Red-Light Distinction

Underlying these distinctions seems to be a continued adherence to a broad-brush traffic light theory of administrative law,14 placing in tension two models of judicial review. On this view, Singapore courts’ deferential ‘green-light approach’ towards the executive stands on one end,15 while a perceived red-light approach towards administrative law in the UK develops vastly differently on the other end.16 Despite criticisms of the traditional traffic light theory,17 it has

7 Chan Hiang Leng Colin v Minister for Information and the Arts [1995] 2 SLR (R) 627 (HC) (Colin Chan) [8].

8 [2012] 4 SCLR 476.

9 Benjamin Joshua Ong, ‘Standing Up for Your Rights: A Review of the Law of Standing in Judicial Review in Singapore’ [2019] Singapore Journal of Legal Studies 316, 317.

10 See generally, Jack Tsen-Ta Lee, ‘A Place to Stand to Move the Earth: Standing and the Rule of Law’ [2020] Singapore Journal of Legal Studies 367.

11 R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 (HL) (Fleet Street Casuals).

12 Peter Cane, ‘Standing Up for the Public’ [1995] PL 276, 276.

13 Colin Chan (n 7) [16].

14 See Carol Harlow and Richard Rawlings, Law and Administration (3rd edn, CUP 2009).

15 Chan (n 3), 470; Nagaenthran Dharmalingam v Attorney-General [2018] SGHC 112 [123].

16 ibid.

17 See eg Martin Louglin, Public Law and Political Theory (Clarendon Press 1992) 58-62.

not lost its influence, particularly on Singaporean judicial attitudes. 18 Taken together, the traditional perspective is clear: ‘Singapore style’ judicial review ultimately diverges from the English position.

This article, however, challenges this thesis of divergence through the context of locus standi. At a time when rules of standing are enjoying a resurgence in the UK,19 and as Singaporean administrative law grapples with a growing conception of co-equality of the judiciary and executive,20 recent developments in both jurisdictions are examined to consider whether any evidence points us away from the traditional perspective. It is argued that, notwithstanding the evidence of divergence, much can also be said about areas of convergence between the standing rules of both jurisdictions.

Three forms of convergence are suggested. To begin, in Section II, structural convergence is considered through observing the arrangement of various rules of standing in both jurisdictions. In turn, this section showcases the shared complexity and contextual approach both jurisdictions have adopted. Next, Section III considers the traditional distinction between a rights-based model of judicial review, as opposed to one based on public interest and the wrongs of administrators. An argument is thereafter made that both English and Singaporean rules of standing displays doctrinal convergence in their shared emphasis on rights. Finally, Section IV is concerned with evolutive convergence. It looks back on the developmental trend to understand how rules of standing have become more (or less) restrictive over time. It will be contended that both jurisdictions’ approaches have been measured ones, characterised by moderate, controlled expansion. These three forms of convergence, it is concluded in Section V, betray vestiges of shared constitutional challenges and possibilities between both jurisdictions, creating a significant common space for both jurisdictions to interact and learn from each other.

By way of clarification, two preliminary points are made at the outset. First, in terms of English law, this article focuses on the primary rules of standing as defined in the Senior Courts Act

18 Jeyaretnam Kenneth Andrew v Attorney-General [2013] SGCA 56 [53]; Nagaenthran Dharmalingam (n 15) [123].

19 Joanna Bell, ‘The Resurgence of Standing in Judicial Review’ (2024) 44(2) OJLS 313, 315.

20 See Jhaveri, ‘The Evolution of Administrative Law in Singapore’ (n 5) 216.

1981. No comment will be passed on the ‘victim’21 test adopted in the context of the Human Rights Act 1998 or issues of standing in relation to European Union law.22 Second, this article is largely empirical, not normative; the focus is on identifying what the rules of standing in the two jurisdictions are, not what they ought to be. This is consistent with the article’s overall aim, which is to explore how standing rules are converging and what lessons such convergence holds.

II. Structural Convergence: The Multiplicity of Locus Standi Rules

Broad labels of ‘rights-based’ and ‘interest-based’ models often seem to paint the impression of a monolithic, unitary structure of rules of standing. A closer inspection, however, would reveal that this is clearly not the case in the UK and Singapore. Instead, both jurisdictions display much greater complexity and contextual fluidity, far beyond what such a bald analysis suggests.

In support of this view, a brief structural sketch of English standing rules is canvassed, largely focussing on the categorical model of standing rules proposed by Joanna Bell. 23 The complexities associated with the structural features of the Singaporean case law are then compared.

A. UK: Unfavourable Targeted, Favourable Targeted and Non-Targeted

Standing in English law is statutorily defined and deceptively unitary at first glance. Dubbed the ‘sufficiency of interest test’, 24 standing is established if ‘the applicant has a sufficient interest in the matter to which the application relates’.25 Such statutory direction, however, has done very little to preclude the growth of a much more complex ecosystem of rules of standing. Indeed, Lord Reed famously argued that ‘a requirement that the applicant demonstrates an

21 Human Rights Act 1998, s 7; Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27, [2019] 1 All ER 173; In the matter of an application by Ewart for judicial review [2019] NIQB 88.

22 See eg R (on the application of EU Lotto Ltd) v Secretary of State for Digital, Culture, Media and Sport [2018] EWHC 3111 (Admin).

23 See Bell (n 19).

24 Paul Craig, Administrative Law (9th edn, Sweet and Maxwell 2021) 781.

25 Senior Courts Act 1981, s 31(3).

interest in the matter complained of will not…operate satisfactorily if it is applied in the same way in all contexts’. 26 What his Lordship preferred was therefore a sufficient interest test dependent ‘upon the context, and in particular upon what will best serve the purposes of judicial review in that context’.27

In her study of the case law which has morphed from Lord Reed’s dicta, Bell has put forth a three-fold taxonomy.28 Applying this trichotomy allows one to discern the different forms of the sufficient interest test in cases of judicial review challenging (i) unfavourable targeted, (ii) favourable targeted and (iii) non-targeted decisions.

Unfavourable targeted decisions constitute the standard cases of judicial review: they involve challenging an administrative decision which negatively affects the interests of a person or organisation who is the ‘subject’ of that decision.29 Characteristic of such fact patterns is where the subject has a ‘unique stake’ in the decision; in turn, a sufficient interest arises quite naturally by one ‘being the subject of the unfavourable decision’.30 What complicates such cases is Peter Cane’s suggestion of ‘surrogate standing’,31 where one individual seeks review on behalf of another individual in their own name. 32 In such cases, English courts have tended to conceptualise standing narrowly. Standing was neither granted to a ‘dutiful and concerned’ son who sought judicial review on his unwell mother’s behalf to challenge a planning enforcement notice, 33 nor to a teacher seeking to raise ‘substantive safeguarding concerns’ about her employer’s treatment of a student who sought to transition genders.34 Quite clearly, standing in such cases is determined directly; if no direct link between the applicant and the issue exists, standing cannot be established.

26 AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46 2012 1 AC 868, [170].

27 ibid.

28 See Bell (n 19).

29 ibid 319.

30 ibid 321.

31 Cane (n 12) 276.

32 ibid. Also see Bell (n 19) 320.

33 R (on the application of Zafar) v Secretary of State for Levelling Up, Housing and Communities [2022] EWHC 2154 (Admin).

34 R (on the application of AB) v A County Council [2022] EWHC 2707 (Admin), [2023] ACD 11 (AB).

A more categorical approach has been adopted in cases involving favourable targeted decisions. These are instances where a public authority makes a decision that serves the interests of a particular party. Adopting the direct approach applied to unfavourable targeted decisions is meaningless here. After all, the party directly affected will likely not commence judicial review proceedings to begin with: she has little incentive to challenge the decision, regardless how legally erroneous the decision is, given that the favourable decision serves her interest. 35 Instead, the issue of standing in such cases will often relate to a third party who seeks to challenge the decision. As to how the range of eligible third parties eligible to bring judicial review has been tamed, English courts have tended to approach the matter categorically, limiting standing to identifiable groups. For example, in cases concerning Parole Board decision-making on the potential direct release of a prisoner, the only categories of individuals with recognised standing are the Secretary of State for Justice, victims and (where the victim is deceased) their representatives.36 No other party beyond these categories will be granted standing.37

Finally, cases of non-targeted decisions lack a subject: applications for judicial review on decisions relating to broad policy directions, for example, fall under such a category. In such cases, standing is determined on a ‘generous approach’.38 Most commonly, the type of standing established in such cases is of an associational or public interest form. For example, associational standing tends to be generously granted to organisations even if they represent the interests of members who did not know of their own interests. Hence, in Adiatu, a trade union was held to have standing to bring judicial review against the Coronavirus Job Retention Scheme which had allegedly discriminated against women, simply because they had ‘5,000 members, [and] it was safe to assume that, amongst them, there will be women who are in

35 See for example R (on the application of DSD) v Parole Board [2018] EWHC 694 (Admin), [2018] 3 WLR 829 (release of a convicted sex offender).

36 In DSD (n 35) [113]-[114], the standing of victims challenging the release of the offender was not contested and affirmed by the Divisional Court. See also R (on the application of McCourt) v Parole Board [2020] EWHC 2320 (Admin), [2020] ACD 127, where it was recognised that the mother of a deceased victim would have standing to seek review of the release of her daughter’s murderer.

37 In DSD (n 35), for example, the Mayor of London’s aim to protect women in the city was not sufficient to give rise to standing. In McCourt (n 36), although the applicant was engaged in campaign work in the field of victims’ rights, this was not sufficient to give rise to standing.

38 Re JR216’s Application for Judicial Review [2022] NIKB 28 [79] (emphasis added).

employment’.39 To the Court, this was a tenable view; after all, ‘given more time, the [trade union] could have put forward a female individual claimant’ who had primary standing herself.40 Plainly, an organisation simply needs to ‘have members who are or may be adversely affected’ to be granted standing.41

Bell’s trichotomy straddles quite a range of cases, involving different rules of different restrictiveness. Undoubtedly, the direct approach to standing remains much less liberal than the generous approach. Hence, observing this trichotomy, one senses that English rules of standing escape the limitations of a simple one-dimensional box. Indeed, for Bell, therefore, a profitable observation was how the restrictiveness of rules of standing remains ultimately contextual in the UK. The implication of this observation is further considered below, after the situation in Singapore is considered.

B. Singapore: Private Rights, Public Rights and Special Damage

As foreshadowed above, Tan Eng Hong marked a significant shift in Singapore’s approach to rules of standing, unambiguously adopting a ‘rights-based’ model for the first time.42 Simple as the ‘rights-based’ label may sound, the approach taken by Singapore courts starkly contrasts with Benjamin Joshua Ong’s proposal of having only one rule of standing, under which an applicant must, in all cases, establish a violation of a right vested in herself.43 Instead, Tan Eng Hong sought to draw a distinction between ‘private’ and ‘public rights’.

Cases where a ‘private’ right is involved aligns with Bell’s unfavourable targeted decisions, and similarly restrictive rules favouring a direct approach have been affirmed. This position stretches as far back as the case of Colin Chan 44 In that case, members of the Jehovah’s Witnesses challenged a Ministerial order to ban materials published by the International Bible

39 R (on the application of Adiatu) v HM Treasury [2020] EWHC 1554 (Admin), [2021] 2 All ER 484 [136].

40 ibid.

41 Bell (n 19) 334.

42 Although there seemed to have been references to a rights-based model of standing rules in Colin Chan (n 7), the language of the Court in the latter case seemed ultimately to prefer an interest-based approach, the influence of an interest-based test on its ruling; it is therefore preferably to view Tan Eng Hong as truly establishing the entrenching the rights-based model.

43 Ong (n 9) 318.

44 [1995] 2 SLR (R) (HC) and [1996] 1 SLR 609 (CA).

Students Association (IBSA), an organisation the Jehovah’s Witnesses used to produce and distribute religious literature. Standing was granted for two reasons: not only did the applicants need access to the materials published by the IBSA to discharge their job, they also faced prosecution for possessing banned materials. Quite clearly, therefore, they were ‘directly affected by the order…[such that] there [was] a clear relationship between [their] interest and the nature of the remedy [they] sought’.45

This can be contrasted with the approach taken in Madan Mohan Singh v Attorney-General, 46 where the Court refused standing to a volunteer who challenged a hair grooming policy after his volunteer pass was terminated by the Singapore Prison Service when he attempted to encourage inmates to challenge the policy. The hair grooming policy prevented Sikh inmates who had shorn hair or a shorn beard at the time they entered prison to keep their hair or beard long later while in prison. While the applicant argued that his constitutional right to propagate his religion was affected, standing was refused because, inter alia, his right to propagate his religion in no way depended on whether inmates could practice what he propagated. The only way the applicant could establish standing was if the Court recognised a form of ‘surrogate standing’. Like the English courts, the Singaporean Court refused to entertain this prospect. Taken together, the direct approach taken in unfavourable targeted decisions in English cases maps well onto Singapore case law.

Violation of private rights, however, has not been the only ground on which Singaporean courts have been ready to grant standing. In Vellama d/o Marie Muthu v Attorney-General, 47 the possibility of a ‘public right’ was explored. The facts concerned an applicant who was a resident in a geographical constituency in which its elected Member of Parliament had resigned. The applicant commenced judicial review to seek clarity on the meaning of Article 49 of the Constitution and the Prime Minister’s obligations under it. However, by the time the applicant’s appeal against the High Court’s decision was heard, a by-election had been called so the applicant’s ‘interest in Art 49 [could] no longer be framed as a private right’.48 Notwithstanding,

45 Colin Chan (n 7) [16].

46 [2015] 2 SLR 1085 (HC) (Madan Mohan Singh).

47 [2013] 4 SLR 1 (CA) (Vellama).

48 ibid [27] (emphasis added).

the Court recognised that ‘the public at large undoubtedly [still had] an interest in the issue raised’49 and that there could be a chance of a ‘public right arising under Art 49’.50 To the Court, this public right is one ‘shared in common with other citizens…because they arise from public duties which are owed to the general class of affected person as a whole’. 51 To establish standing when such public rights are affected, however, a different test of standing was adopted by the Court: unlike cases where a private right is concerned, cases involving public rights can only give rise to standing if ‘special damage’ is established.

Jeyaretnam Kenneth Andrew v Attorney-General further added to this distinction between private and public rights cases by suggesting a third possible scenario: instances involving no correlative public or private rights. For the Court, ‘“special damage” might also possibly encompass those rare and exceptional situations where a public body has breached its public duties in such an egregious manner that the courts are satisfied that it would be in the public interest to hear it’.52 In conceptualising this novel hypothetical, the Court argued that in a ‘very narrow avenue’ of cases, there could be ‘very grave and serious breaches of legality’ such as when a Cabinet minister abuses her powers.53 In such a case, ‘the courts are satisfied that it would be in the public interest to hear it’ even though no correlative private or public rights are involved.54

Much debate has followed this series of developments.55 Accordingly, much criticism has been laid as to whether such complexity is truly desirable, and whether distinctions between ‘private’ and ‘public’ rights have been properly drawn.56 Below, further comments are also made about the hypothetical proposed in Jeyaretnam and the meaning of ‘special damage’. For now, however, the point to be made is that, as with the English approach, there has been a clear judicial instinct that rules of standing ultimately require more than a monolithic guideline.

49 ibid.

50 ibid [38].

51 ibid [33].

52 Jeyaretnam (n 18) [62].

53 ibid.

54 ibid.

55 See eg Swati Jhaveri, ‘Advancing Constitutional Justice in Singapore: Enhancing Access and Standing in Judicial Review Cases’ (2017) Singapore Journal of Legal Studies 53; Ong (n 9); Lee (n 10).

56 See generally Ong (n 9).

Indeed, the appetite has been for a more complex approach, one reliant on context and ultimately sensitive to the view that ‘[t]he appropriate test for determining standing turns on the nature of the rights at stake’.57

C. Cultures of Pragmatism

Structurally, therefore, the polylithic nature of both English and Singaporean standing rules betray a much closer unity than one might first perceive. Faced with a collection of judicial review case law which has been described as ‘something of a ragbag’,58 the approach by both jurisdictions has been a pragmatic one, responding to different fact patterns rather caustically. Instead of proposing a singular, universal test for standing to be used across the entire spectrum of judicial review cases, the preferred approach has been one seeking to understand and apply the meaning of ‘sufficient interest’ and ‘right’ with a low degree of what Patrick Atiyah and Robert Summers term as ‘mandatory formality’, which refers to the degree to which ‘a formal reason excludes from consideration some contrary substantive reason’ 59 In other words, rules of standing in both jurisdictions do continue to take into consideration changes in context and other substantive considerations, in turn avoiding becoming overly formalistic.

Underlying such judicial philosophies, it seems, is a form of constitutional pragmatism shared commonly between both jurisdictions in devising rules of standing, and public law more generally. Singapore, it seems, shares certain similar characteristics with the ‘incrementalist, pragmatic tradition’ that Mark Elliott brands as the ‘defining characteristic of British constitutionalism’. 60 Indeed, Li-Ann Thio sees some vestiges of this in Singapore’s constitutional culture too, as judges adopt an ‘“incremental change” method of adjudication where the wisdom of past authorities is distilled, without loss of the critical capacity to reject or modify past approaches’.61 Such observations will be revisited below when concluding, but

57 Vellama (n 47) [29].

58 Bell (n 19) 339.

59 Patrick S Atiyah and Robert S Summers, Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions (Oxford University Press 1991) 16-17.

60 Mark Elliott, ‘Scotland has voted ‘no’. What next for the UK constitution?’ (Public Law for Everyone, 19 September 2014) <https://publiclawforeveryone.com/2014/09/19/scotland-has-voted-no-what-next-for-the-ukconstitution/> accessed 11 April 2025.

61 Li-Ann Thio, ‘Principled Pragmatism and the “Third Wave” of Communitarian Judicial Review in Singapore’ in Jaclyn L Neo (ed), Constitutional Interpretation in Singapore: Theory and Practice (Routledge 2016) 103.

suffice to say here that there is value in moving through the next two themes with this contextual backdrop in mind.

III. Doctrinal Convergence: The Influence of Rights

The second theme concerns the influence of rights on standing rules in both the English and Singaporean context. Much ink has been spilt pitting a rights-based doctrinal account of judicial review against one focussed on the wrongs of public administrators.62 This doctrinal divergence, it seems, also characterises what some may regard as a stark distinction between rules of standing in the English and Singaporean context. The English perspective, we are told, begins from the premise that ‘[p]ublic law is not at base about rights’;63 rather, ‘it is about wrongs’. 64 Jason Varuhas, for example, explicitly disagrees with ‘righting-theorists’ and instead proposes a ‘public interest theory’ concerned with the regulation of public power in the public interest. 65 Similarly, Farrah Ahmed argues that judicial review is based around the purpose of holding administrators to their moral duties. 66 Likewise, Adam Perry’s ‘Plan B’ theory of judicial review situates judicial review as the ‘Plan B’ when administrators fail to execute their mandates rationally.67 Contrastingly, as its name suggests, Singapore’s ‘rightsbased’ model of standing explicitly recognises the influence of citizens’ rights as being the focus in any determination of standing.

Responding to this traditional stance, an attempt is made below to push back against such a divergent view. In turn, it will be argued that both jurisdictions display a considerable rightsbased influence in their formulation of rules of standing.

62 Megan Pfiffer, ‘Administrative Law as a Source of Rights’ (2025) 88(2) MLR 366.

63 R v Somerset CC, ex p Dixon [1988] Env LR 111, 121 (Sedley J).

64 ibid.

65 Jason Varuhas, ‘The Reformation of English Administrative Law? “Rights”, Rhetoric and Reality (2013) 72 CLJ 369; Jason Varuhas ‘Against Unification’ in Hannah Wilberg and Mark Elliott (eds), The Scope and Intensity of Review: Traversing Taggarts’s Rainbow (Hart Publishing 2015) 91; Jason Varuhas, ‘The Public Interest Conception of Judicial Review: Its Procedural Origins and Substantive Implications’ in John Bell and others (eds), Public Law Adjudication in Common Law Systems: Process and Substance (Hart Publishing 2016) 45

66 Farrah Ahmed, ‘The Delegation Theory of Judicial Review’ (2021) 84 MLR 772

67 Adam Perry, ‘Plan B: A Theory of Judicial Review’ Oxford Legal Studies Legal Studies Research Paper No 66/2017.

A. UK: Positive and Negative Influence of Rights

As canvassed above, the English perspective has traditionally been dominated by a ‘wrongsbased’ model of judicial review. On this view, judicial review ought to preoccupy itself with the wrongdoing of public administrators, not the rights of individuals. Closely inspected in the context of standing rules, however, such a conception seems to fall apart.

To begin, the elephant in the room is the issue of representative standing, an objection Megan Pfiffer sees as ‘significant, though not insurmountable’ to the rights-based theory of judicial review.68 The difficulty with this extended form of standing, it seems, is that it does not require applicants to be directly or particularly affected by a relevant decision. This, however, does not mean that any form of representative standing is incompatible with a rights-based conception of judicial review. As Pfiffer shows, cases of surrogate and association standing, which involve an individual or organisation applying for judicial review on behalf of another, merely entails that individual or organisation taking the place of the right holder. Pfiffer likens this to that between a child and guardian: where a child has rights but relies on a guardian to apply for standing to enforce them, those rights and their importance for the judicial review do not dissipate. Likewise, Pfiffer shows that public interest standing is not incompatible with a rightsbased model of judicial review. These are, after all, not cases where no rights are concerned. Rather, they are cases where all citizens’ rights are affected equally. In such a scenario, it would be odd not to grant any individual standing.69

Having overcome the hurdle of representative standing, the ground is cleared to develop a stronger idea of how a rights-based model of judicial review has permeated English rules of standing. It is suggested this can be conceptualised in two related ways. First, rights-based considerations have shown themselves capable of exerting a positive influence on standing rules; it supplies courts with positive reasons to grant standing in particular cases. This is, arguably, not a new development. From as far back as Fleet Street Casuals, Lord Wilberforce, when clarifying that standing should be determined based on ‘an examination, upon evidence, of what breach of duty or illegality is alleged’, felt the need to specify that a conclusion can be

68 Pfiffer (n 62) 376.

69 Walton v The Scottish Ministers [2012] UKSC 44 [49]; AXA (n 26) [170].

derived only after ‘relating [the breach or illegality] to the position of the complainant’.70 The focus of such reasoning is important: what courts concern themselves with is not only how wrong a particular decision-maker has been, but what the effect of that wrong is in relation to the claimant, and whether the claimant’s fundamental right has therefore been infringed. This seems to better fit into a rights-based model of standing rules, and clearly departs from the views espoused by Varuhas, Ahmed and Perry.

Rights also exert a negative influence on standing rules. Rather like the flip side of the first point, right-based considerations have been used as justifications to deny standing in particular cases, out of fear that this could violate another’s rights. This was seen in AB, where the High Court declined to grant standing, fearing that there will be an ‘intrusion into [the subject’s] right to respect for private life that would inevitably be involved by the deployment of evidence’ about the subject.71 Clearly, it was through a subject-centric consideration of rights that the Court decided to reject the grant of standing.

B. Singapore: Explicitly Rights-Based

Less needs to be said about Singapore’s rules of standing and its rights-based approach; it is, after all, explicitly focussed on ‘vindicating personal rights and interests through adjudication rather than determining public policy through exposition’.72 This, as in the English case, can be seen both positively and negatively. The positive aspect is clear: either a ‘private’ or ‘public’ right must be shown to have been infringed before standing can be granted. Negatively, rightsbased considerations also help courts justify why standing is not granted in other cases. This is seen in Madan Mohan Singh, 73 a case considered above. Apart from reasons that the applicant was not the party directly affected by the administrative action, the Court, in rejecting a grant of standing, also considered the content of the right to propagate one’s religion, which the applicant raised. The Court surmised that this right to religious propagation does not allow the applicant to ‘demand access into prison to propagate [one’s] religion’; 74 after all, ‘[p]rison

70 Fleet Street Casuals (n 11) 633.

71 AB (n 34) [6].

72 Ravi s/o Madasamy v Attorney-General [2017] 5 SLR 489 [43], citing Vellama (n 47).

73 [2015] 2 SLR 1085 (HC).

74 Mahan Modan Singh (n 46) [41].

inmates suffer a temporary exclusion from society’ 75 and ‘any active or persistent encouragement by volunteer religious counsellors to shorn Sikh inmates to keep their hair and bear unshorn posed a serious threat to the discipline, security, safety and order in prisons’.76 As Ong rightly observes,77 it was by defining the content of the rights that the Court was able to explain why standing could not be granted. Therefore, rights-based considerations again justified the non-granting of standing.

An objection must, however, be addressed. In Jeyaratnam, the Court famously put forth a suggestion that ‘“special damage” might also possibly encompass those rare and exceptional situations where a public body has breached its public duties in such an egregious manner that the courts are satisfied that it would be in the public interest to hear it’.78 At first glance, the Court seems to be departing from the rights-based doctrine it had previously advanced. Indeed, the suggestion seems to be that where the maladministration is grave and a special damage has resulted, standing can be granted even if there is no correlative public or private right.

A closer look, however, suggests that such an argument is ultimately strained. First, the Court explicitly rejected any suggestion of such a departure from the rights-based doctrine, cautioning that its comments ‘should not in any way be taken as a spurring move towards the surge of public interest litigation’. 79 Second, one suspects whether, even in the exceptional circumstances illustrated, the Court did indeed create an exception where no rights-based consideration is present.80 The key difficulty with this view is that the Court seems to continue to require a proof of ‘special damage’, which involves ‘interference with [a] public right’.81 Whatever the Court seem to have suggested therefore appears to be very much qualified and to a certain extent, even confusing. Evidence of a departure away from a rights-based standing model in Singapore hence remains weak.

75 Mahan Modan Singh (n 46) [40].

76 Mahan Modan Singh (n 46) [53].

77 Ong (n 9) 328.

78 Jeyaretnam (n 18) [62].

79 Jeyaretnam (n 18) [62].

80 Ong (n 9) 345.

81 Jeyaretnam (n 18) [62] (emphasis added).

C. An International Rights-Based Context

Doctrinally, therefore, the evidence seems to suggest that both jurisdictions’ standing rules, different as they are, have been converging around a rights-based model of administrative law, as opposed to one organised around the misuse of public power. The focus remains to be on what Pfiffer sees as an ‘intuitive idea’ of judicial review as being primarily concerned with the rights of citizens subject to administrative power.82 Normatively, the attractiveness of such a conception of administrative law seems to be its respect of claimants as ‘distinct individual[s]’ that ought not to be marginalised in the face of the administrative state, but rather seen as individuals who can make ‘distinctive demands of the state’. 83 In this way, a rights-based conception promotes respect for an individual’s dignity.

As much as administrative law continues to be shaped by unique local conditions and domestic legal cultures, the shared trajectory towards a rights-based conception of administrative law continues to betray a closer coherence with Michael Ignatieff’s suggestion of rights as the new ‘lingua franca of global moral thought’,84 under which rights seem to drive an international discourse that transcend and ‘infiltrate and influence the national’.85 Seen in this context, rules of standing become not only emblematic of domestic administrative cultures, but also symptomatic of the growing global influence of rights-based considerations which have been observed to influence domestic jurisprudence.86

IV. Evolutive Convergence: Broadening Locus Standi Rules?

Finally, this third theme considers the wider evolutive trajectory of rules of standing and how the scope of standing has developed in both jurisdictions. As will be seen below, there is also

82 Pfiffer (n 62).

83 ibid.

84 Michael Ignatieff, Human Rights as Politics and Idolatory (Princeton University Press, 2001) 53.

85 Thomas Poole, ‘Between the Devil and the Deep Blue Sea’, in Linda Pearson, Carol Harlow and Michael Taggart (eds), Administrative law in a Changing State: Essays in Honour of Mark Aronson (Hart Publishing 2008) 15.

86 The influence of international rights-based jurisprudence on domestic public law is not new and has been, for example, observed in the Singaporean context in Li-Ann Thio, ‘Reading Rights Rightly: The UDHR and Its Creeping Influence on the Development of Singapore Public Law’ [2008] Singapore Journal of Legal Studies 264.

convergence in this area, as both sets of standing rules incrementally expand in scope, albeit in a controlled manner, remaining resistant to calls for ‘open’ standing.87

A. UK: Not a One-Way Street

Perhaps given earlier developments expanding rules of standing in Fleet Street Casuals, 88 Greenpeace, 89 Rees-Mogg90 and World Development Movement, 91 English law in this area may give the impression of a unitary path towards broader, more liberal rules of standing. To some extent, this expansionist view of English standing law’s evolutive trend is not unseen. Recent cases, arguably, continue to provide some evidence of expansion.

For example, there has been a long line of authorities92 requiring the party claiming a public interest standing to hold a position of ‘respect’93 and have the right ‘history’ and ‘experience’,94 ‘expertise’,95 ‘credentials’96 and ‘a sufficient knowledge of the subject to qualify them to act in the public interest in what is, in essence, a representative capacity’. 97 However, a recent authority held that even ‘newly established campaigning organisations’ would have sufficient public interest standing because ‘it did have a particular interest and in a sense was representative of an identifiable group in society which was affected by the decision or policy

87 See generally Elizabeth Fisher and Jeremy Kirk, ‘Still Standing: An Argument for Open Standing in Australia and England’ (1997) 71(5) Australian Law Journal 370.

88 R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 (HL).

89 R v Inspectorate of Pollution, ex parte Greepeace Ltd (No 2) [1994] 4 All ER 329.

90 R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Rees-Mogg [1994] QB 522 (DC).

91 R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 385 (QB).

92 As observed in Ahmed Farrah and Adam Perry, ‘Standing and Civic Virtue’ (2018) 134 LQR 239, 240.

93 R v HM Inspectorate of Pollution and Ministry of Agriculture, Fisheries and Food ex parte Greepeace [1994] Env LR 76 [100].

94 R (on the application of the Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497 (Admin); [2003] 1 FLR 484 [2].

95 R v Secretary of State for Foreign Affairs ex parte The World Development Movement Ltd [1995] 1 WLR 386 at 396; [1995] 1 All ER 611 [620].

96 R (on the application of the Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497 (Admin); [2003] 1 FLR 484 [2].

97 Walton (n 69) [153] (Lord Reed).

in question’.98 Another example comes from cases where individuals challenge non-targeted decisions. In such cases, what appears necessary is to prove that the claimant was herself ‘directly affected’.99 It is, however, clear from Bell’s analysis that this requirement has been broadly interpreted, taking on a life of its own in recent cases.100 Indeed, one is sufficiently ‘directly affected’ by an administrative measure even if she had not yet pursued a course of action but was merely deterred from pursuing it,101 or if the measure ‘directly affected’ her in the past,102 or has the potential of bringing about such an impact in the future.103

This path towards liberalising standing rules, however, has not been a one-way street. There have, for example, been limits placed on the courts’ understanding of ‘directly affected’. Hence, standing was not extended to applicants challenging the Public Order Act 1986 because they had not been arrested nor ‘deterred from protesting’. 104 Similarly, a doctor who had been double-vaccinated and who did not work in a care home did not have standing to challenge a policy requiring care home operators to require workers to provide evidence of vaccinations. For the Court, a mere impact on his business did not leave the applicant directly affected by the policy itself. 105 The evolutive trend seen in the English context is therefore more conservative than a view of absolute expansion suggests.

B. Singapore: Measured Expansion

In the same way, the expansion of locus standi in Singapore has also occurred in a measured manner. It has not adopted a unidirectional path towards either expansion or restriction.

98 R (on the application of Good Law Project & Runnymede Trust) v Prime Minister [2022] EWHC 298 (Admin) [21], citing R (on the application of Motherhood Plan) v HM Treasury [2021] EWCA Civ 1703.

99 AXA (n 26) [63].

100 Bell (n 19) 337.

101 Royal Cayman Islands Police Association v Commissioners of the Royal Cayman Islands Police Service [2021] UKPC 21.

102 R (on the application of DM) v Secretary of State for the Home Department [2023] EWHC 740 (Admin).

103 R (on the application of Adiatu) v HM Treasury [2020] EWHC 1554 (Admin), [2021] 2 All ER 484.

104 R (on the application of Jones) v Commissioner of Police of the Metropolis [2019] EWHC 2957 (Admin), [2020] 1 WLR 519 [61].

105 R (on the application of Peters) v Secretary of State for Health and Social Care [2021] EWHC 3182 (Admin) [35].

As Jhaveri explains, one way through which standing is gradually being broadened is through expanding the notion of ‘violation’ to moderately expand rules of standing, rather than ‘unmooring…[the need to show a] personal connection’. This is quite similar to the English jurisprudence, where expansion is realised by interpreting ‘directly affected’ in broader terms. In Tan Eng Hong, for example, the applicants were initially charged under Section 377A (commission of gay sex between consenting adult males) but this was eventually amended to a charge under Section 294(a) (commission of an obscene act in public) of the Penal Code. Notwithstanding, standing was granted to challenge Section 377A on the basis of its intrusion on constitutional rights under Article 9 (no deprivation of life and liberty save in accordance with the law) and Article 12 (equality). This development is significant because it leaves the requirement of infringement against one’s private rights considerably broad; indeed, all that is required, it seems, is the mere presence of an unconstitutional law on the statute books.

At the same time, such expansion of ‘violation’ has been married with tools to reign in standing. For one, while recognising a separate form of ‘public rights’ which could potentially give rise to standing, Singaporean courts continue to emphasise the importance of ‘special damage’ where only a public right is infringed. In Vellama, 106 for example, it was explained that ‘special damage’ remains important to ‘safeguard against essential political issues, which should be more appropriately ventilated elsewhere’.

C. An Amber-Light Zone

The above observations are interesting because they challenge the traditional conception of a clear red-light/green-light distinction between English and Singaporean rules of standing. Undeniably, the reality that Singapore’s rights-based test has been more narrowly construed cannot be disguised, but to stop at such a binary mode of comparison is to lose sight of a more nuanced picture. Indeed, this is made clearer from the sketch above, in which it was observed that the two jurisdictions are not wholly red- or green-light in their evolutive trend.107 There has, indeed, been a mix of both, as courts in both countries continue to exhibit a rather more casuistic approach to standing, under which terms like ‘directly affected’ and ‘violation’

106 [2012] 2 SLR 1033 (HC).

107 See also Jhaveri, ‘The Evolution of Administrative Law in Singapore’ (n 5) 219 on the insufficiencies of the green-light approach.

continue to be applied based on the particular facts at hand. More importantly, neither jurisdiction stays stagnant; instead, they constantly toggle around red- and green-light tendencies, as the facts of the case dictates.

In turn, one observes once more the pragmatic nature of both jurisdictions’ constitutional culture. More importantly, however, one begins to appreciate how the more important question to ask is not whether a jurisdiction is green- or red-light in its approach; rather, a more productive endeavour would be to explore the extent to which a particular rule of standing is characteristic of a green- (or red-) light approach. This is because neither of the two jurisdictions considered are wholly red- or green-light; they possess a characteristic mix of approaches from both ideological camps. This pushes back against traditional ideas of divergence between the two jurisdictions, placing both the UK and Singapore more closely together in a middle ‘amber-light’ zone108 rather than at one or the other extreme end of a redlight/green-light spectrum.

V. Conclusion

This article began with a survey of a seemingly great divergence between rules of standing in the UK and Singapore. Indeed, comparative public law, not least comparisons between English and Singaporean public law, has often tended to be described in divergent terms. After all, as some have argued elsewhere, different political systems operate on different philosophies and apply to a varied range of contexts.109 This has, as seen above, called forth a more-than-adecade-long rush to produce a more autochthonous Singaporean legal system, independent of English influence.110 In turn, the creation of a distinctive Singaporean jurisprudence that is increasingly ‘localised’111 has become more evident.

That said, by tracing recent trends, it has been argued that emerging developments – perhaps surprisingly – showcase more convergence than one might first expect between the two

108 See Li-Ann Thio, ‘Courts and Judicial Review’ in Peter Cane, Herwing C H Hofmann, Eric C Ip and Peter L Lindseth (eds), The Oxford Handbook of Comparative Administrative Law (OUP 2020) 740.

109 ibid.

110 See generally Jhaveri, ‘The Evolution of Administrative Law in Singapore’ (n 5); Chan (n 3).

111 Jhaveri, ‘Localising Administrative Law in Singapore: Embracing Inter-branch Equality’ (2017) 29 Singapore Academy of Law Journal 828.

jurisdictions. What this paper has attempted to show, therefore, is that a considerable degree of similarity remains, at least in relation to rules of locus standi between the English and Singaporean jurisdictions.

More poignantly, one observes how convergence can be found alongside divergence because various forms of comparisons sit on different planes; divergence in terms of substantive rules does not categorically result in a parallel divergence in the structural, doctrinal and evolutive aspects. In fact, through the lens of rules of standing, one observes significant common space between the two jurisdictions in terms of underlying cultures and approaches. Understanding constitutional convergence by applying the trichotomy advanced here may therefore allow for a richer conception of comparative constitutionalism to emerge beyond an exclusive focus on the substantive content of the law.

In turn, it can be expected that similar issues and questions are likely to emerge in both the English and Singaporean jurisdictions on specific issues. By pushing against what has become quite a diversionist view of comparative administrative law, it is hoped that constitutional convergence can point towards areas of horizontal intersection and collaboration between the two jurisdictions and open doors to conversations on broader issues both jurisdictions share.

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WE, THE JURY… ANALYSING THE ROLE OF JURY SYSTEMS

IN RELATION TO JUSTICE AND

FAIRNESS

Nickolaus Ng*

Introduction

Trial by jury is a foreign innovation, having been first imported into Singapore by the United Kingdom during the days of the British Empire through the Charters of Justice.

Before the jury system was abolished in Singapore in 1970, a jury of seven would be summoned only for criminal cases, requiring a majority verdict instead of a unanimous one. In the original jury system in England, the jury consisted of twelve witnesses or persons taken as witnesses, who swore to the prisoner’s guilt before he was convicted. The number of persons serving in the jury appears to have no special significance with no fixed number of jurors in any one jurisdiction.

The right of a jury to return a verdict according to their own conscience, without being subjected to any penalty, was established by Bushett’s Case in 1670.1 In England, jurors must be unanimous in their verdict, a practice that has spanned well over 700 years.

However, juries are a double-edged sword. Like a pendulum, it either convicts accurately and justly, or invites biased impressions to dictate the Accused’s fate, whether fair or not.

Illustratively, in Harper Lee's "To Kill a Mockingbird," the jury's racial bias is a major theme, highlighting the injustice of the legal system in the American South during the 1930s. The jury in the storyline was composed entirely of white men, mirroring the historical lack of diversity and representation in juries of that era. This lack of diversity, coupled with the prevailing racial prejudice, leads to Tom Robinson's unjust conviction despite the clear evidence of his innocence. The book, although fictional, reflects similar issues in our reality.

* University of Birmingham, LLB Class of 2021, Advocate and Solicitor of the Supreme Court of Singapore.

1 Bushett’s Case (1670) 124 E.R. 1006.

This article seeks to present the inherent biases of jurors in decision-making, during preevidence presentation, during evidence presentation itself and during deliberations. This article advocates for jury-less systems instead, to produce better and fairer adjudication of court cases.

Pre-evidence Presentation

Pre-trial Biases:

Juror verdicts are influenced by various individual differences, with pre-trial biases and attitudes playing a critical role in shaping decisions. In addition to bias, factors such as personality traits and political ideology can also impact juror reasoning.2

An early effort to measure the influence of pre-trial biases on juror decision-making is the Juror Bias Scale (JBS). The complete JBS is a seventeen-item questionnaire structured around two core constructs: (1) probability of commission and (2) reasonable doubt The reasonable doubt construct consists of eight items designed to assess the level of certainty required before convicting a defendant. 3 The probability of commission construct gauges prior beliefs regarding the likelihood of an accused individual’s guilt based on available evidence. It reflects how predisposed a juror may be toward assuming guilt. Researchers identified nine items effectively measuring this construct, including statements such as, “Defence lawyers don’t really care about guilt or innocence, they are just in business to make money.”4 This dimension taps into conviction bias, where jurors exhibit a tendency to favour the Prosecution’s case. Higher scores indicate a stronger inclination towards conviction. Another item within this construct states, “For serious crimes like murder, a defendant should be found guilty so long as there is a 90% chance that he committed the crime”.5

2 Samantha Lundrigan, Mandeep K Dhami and Katrin Mueller-Johnson, ‘Predicting verdicts using pre-trial attitudes and standard of proof’ (2016) 21 Legal and Criminological Psychology 95.

3 Saul M Kassin and Lawrence S Wrightsman, ‘The Construction and Validation of a Juror Bias Scale’ (1983) 17 Journal of Research in Personality 423.

4 Bryan Myers and Len B Lecci, ‘Revising the Factor Structure of the Juror Bias Scale: A Method for the Empirical Validation of Theoretical Constructs’ (1998) 22 Law and Human Behaviour 239. 5 ibid.

Scores on the JBS, encompassing both constructs, range from 17 to 85, with higher scores reflecting a bias toward the Prosecution and lower scores indicating a Defence bias.6 Lecci and Myers found that the JBS accounted for 11.6% of the variance in pre-deliberation verdicts and 6.1% of the variance in post-deliberation verdicts.

Another avenue through which biases can shape juror decisions is pre-trial publicity. Historically, this form of external influence was primarily associated with high-profile cases and celebrity trials. However, in the current digital era, jurors may encounter prejudicial material regarding virtually any defendant via online sources and social media platforms, leading to what can be termed “viral bias”.7 Moreover, pre-trial publicity has consistently been shown to influence juror judgments in controlled mock trial settings.8

Ultimately, pre-trial biases demonstrably impact jury verdicts. While some of these biases may exert only a minor direct effect, they often intensify when combined with other cognitive and procedural elements, creating a compounding influence throughout jury deliberations.

During Evidence Presentation

Cognitive Bias:

Cognitive bias is an overarching concept that describes the subjective perceptions individuals hold, which shape their decision-making and interactions with the world.9 This bias arises due to two fundamental factors: (1) the limitations in human cognitive capacity, which necessitate efficiency in processing information, and (2) the influence of personal experiences and

6 Bryan Myers and Len B Lecci, ‘Predicting Guilt Judgments and Verdict Change Using a Measure of Pretrial Bias in a Videotaped Mock Trial with Deliberating Jurors’ (2009) 15 Psychology, Crime & Law 619.

7 Cynthia Willis Esqueda, Russ Espinoza and Scott E Culhane, ‘The Effects of Ethnicity, SES, and Crime Status on Juror Decision-Making: A Cross-Cultural Examination of European American and Mexican American Mock Jurors’ (2008) 30 Hispanic Journal of Behavioral Sciences 181.

8 Bryan Myers and Len B Lecci, ‘Individual Differences in Attitudes Relevant to Juror Decision-Making: Development and Validation of the Pretrial Juror Attitude Questionnaire (PJAQ)’ (2008) 38 Journal of Applied Social Psychology 2010.

9 Victoria C Estrada-Reynolds, Jennifer M Gray and Narina Nuñez, ‘Information Integration Theory, Juror Bias, and Sentence Recommendations Captured Over Time in a Capital Trial’ (2015) 29 Applied Cognitive Psychology 713.

environmental exposure.10 To conserve mental effort, individuals rely on cognitive shortcuts, known as heuristics. While generally effective, these heuristics can introduce distortions in judgment, leading to systematic errors.11

The impact of cognitive biases has been studied across various domains, including law, forensic science, medicine, and finance. Research consistently shows that both laypersons and experts are vulnerable to these biases, underscoring their broad applicability.12 Carlson and Russo’s landmark study investigated the role of cognitive bias, specifically pre-decisional distortion, in jury decision-making. They defined pre-decisional distortion as “jurors’ biased interpretation of new evidence to support whichever verdict is tentatively favoured as a trial progresses”.13 Their research, conducted across two studies, one with students and another with jury-eligible individuals, revealed that jurors often form an initial verdict preference before reviewing all the evidence. 14 This early preference subsequently distorts how jurors interpret incoming information, reinforcing their preliminary judgment. Additionally, pre-decisional distortion and confirmation bias can be exacerbated by pre-trial exposure to biased information, such as media coverage. Jurors exposed to negative pre-trial publicity regarding a defendant were found to exhibit a stronger preference for the prosecution, increasing the likelihood of a guilty verdict.15

Statistically, they are more likely to deliver guilty verdicts compared to those in a control condition. Similarly, research has demonstrated that pre-trial bias significantly affected juror decisions when the evidence was ambiguous but had little impact when the prosecution’s case was strong.16 In situations where the evidence lacks clarity, jurors are more prone to distorting their interpretation to align with their preconceived verdict preference.

10 Itiel E Dror, ‘A Hierarchy of Expert Performance’ (2016) 5 Journal of Applied Research in Memory and Cognition 121.

11 Gerd Gigerenzer and Daniel G Goldstein, ‘Reasoning the Fast and Frugal Way: Models of Bounded Rationality’ (1996) 103 Psychological Review 650.

12 Lee J Curley and others, ‘Faith in Thy Threshold’ (2018) 58 Medicine, Science and the Law 239.

13 Kurt A Carlson and J Edward Russo, ‘Biased interpretation of evidence by mock jurors’ (2001) 7 Journal of Experimental Psychology: Applied 91.

14 ibid.

15 Lorraine Hope, Amina Memon and Peter McGeorge, ‘Understanding pretrial publicity: predecisional distortion of evidence by mock jurors’ (2004) 10 Journal of Experimental Psychology: Applied 111

16 Leticia De La Fuente, E Inmaculada De La Fuente and Juan García, ‘Effects of pretrial juror bias, strength of evidence, and deliberation process on juror decisions: new validity evidence of the juror bias scale scores’ (2003) 9 Psychology, Crime & Law 197

Jury trials are inherently uncertain. Understandably, cases with strong evidence often lead to confessions before reaching trial, whereas those with weaker evidence may never proceed to court.17 Additionally, the adversarial nature of legal proceedings contributes to this ambiguity, as opposing sides work to persuade jurors that their perspective is the most accurate.18 These dynamics create a fertile ground for cognitive biases to take hold.

The elaboration likelihood model offers insight into why biases play a more pronounced role when evidence is ambiguous. This framework suggests that individuals engage with information differently depending on the cognitive demands of their environment. When circumstances encourage deep processing, allowing for thoughtful evaluation of evidence, people are more likely to form decisions based on factual analysis.19

Conversely, when jurors experience cognitive overload due to complex legal terminology and adversarial courtroom dynamics, they may rely on heuristic reasoning rather than deliberate analysis. This is to be expected given the unfamiliarity to the law amongst some jurors, especially given that they are often laypersons. In environments where jurors lack prior knowledge or personal investment in the case, decision-making is more likely to be guided by pre-existing attitudes and biases. 20 One prominent mechanism driving this effect is the representativeness heuristic, which leads individuals to assess the likelihood of an outcome based on how well it matches a given description rather than relying on statistical probabilities.21

When a narrative appears to align with an expected stereotype, decision-makers tend to perceive it as more plausible, often disregarding objective base rates. In other words, this is

17 Lee J Curley and others, ‘Faith in Thy Threshold’ (2018) 58 Medicine, Science and the Law 239.

18 Martin F Kaplan and Lynn E Miller, ‘Reducing the effects of juror bias’ (1978) 36 Journal of Personality and Social Psychology 1443.

19 John T Cacioppo and Richard E Petty, ‘The elaboration likelihood model of persuasion’ (1984) 11 ACR North American Advances 123.

20 ibid.

21 Amos Tversky and Daniel Kahneman, ‘Judgment under uncertainty: heuristics and biases’ (1974) 185 Science 1124.

tantamount to confirmation bias. This cognitive shortcut plays a key role in stereotyping and can significantly influence juror assessments.22

This has relation to the Schema Theory, which posits that human cognition is structured around mental frameworks that organise prior knowledge and experiences to guide perception, comprehension, and memory.23 Jurors enter the courtroom with entrenched schemas shaped by cultural norms, media portrayals and personal experiences, which influence their expectations about crime, culpability, and courtroom behaviour. 24 These schemas can lead to biased assimilation, where ambiguous or even contradictory evidence is interpreted in ways that reinforce initial impressions (e.g. confirmation bias), such as assuming guilt based on a defendant’s demeanour or background. Moreover, schema perseverance (i.e. adherence to one’s own schema and biases) may cause jurors to disregard legally accurate instructions if those instructions conflict with their intuitive understanding of justice or punishment.25 For instance, the author suggests that even when explicitly told that life without parole precludes release, jurors may default to a schema suggesting eventual leniency, thereby skewing sentencing decisions. This cognitive rigidity underscores the need for legal actors to actively prime legally appropriate schemas through targeted instruction and framing, as well as to anticipate how schematic distortions may undermine procedural fairness and verdict integrity. 26 When combined with prior attitudes such as pre-trial bias these heuristics can lead to distorted judgments and unfair trial outcomes.27

Research has demonstrated how the interplay between cognitive bias and demographic characteristics of defendants or victims can negatively shape juror decision-making. Ethnic minority groups frequently linked to crime through media portrayals are disproportionately

22 ibid.

23 Sara Gordon, ‘Through the eyes of jurors: the use of schemas in the application of "plain-language" jury instructions’ (2013) 64(3) Hastings Law Journal 643.

24 ibid.

25 ibid.

26 John R Rickford and Sharese King, ‘Language and linguistics on trial: hearing Rachel Jeantel (and other vernacular speakers) in the courtroom and beyond’ (2016) 92 Language 948.

27 ibid.

subjected to guilty verdicts in mock trials. 28 Mitchell et. al. conducted a meta-analysis to uncover a small but statistically significant racial bias effect in juror verdicts. This bias was especially pronounced when decisions were rendered on a continuous scale rather than a simple guilty/not guilty dichotomy, and when judicial instructions were absent.29

Ultimately, pre-trial biases, including racial stereotypes, shape how jurors evaluate evidence, influencing their interpretations and, consequently, the verdicts they deliver.

External Biases Originating From Expert Witnesses’ Evidence

Expert testimony serves as a key component in courtroom proceedings, offering jurors specialized insight into complex evidence. In criminal trials, jurors must assess both the credibility of the expert witness and the reliability of the information they present.30

Trials often feature multiple experts representing opposing sides of the adversarial system. Although expert selection varies across legal systems, individuals in these roles must typically demonstrate specialized expertise and the ability to communicate their knowledge effectively in a courtroom setting.31 Many experts are affiliated with professional regulatory bodies that validate their qualifications.

While expert testimony influences jurors’ perceptions of evidence strength, several factors mediate its impact. These include the nature and complexity of the evidence, such as DNA analysis, footwear impressions, or eyewitness testimony. 32 The type of expertise presented, whether clinical or actuarial, also shapes how jurors interpret the information.33 Other relevant

28 Tara L Mitchell and others, ‘Racial bias in mock juror decision-making: a meta-analytic review of defendant treatment’ (2005) 29 Law and Human Behavior 621. 29 ibid.

30 Sanja Kutnjak Ivković and Valerie P Hans, ‘Jurors’ evaluations of expert testimony: judging the messenger and the message’ (2003) 28 Law and Social Inquiry 441.

31 Carol Krafka and others, ‘Judge and attorney experiences, practices, and concerns regarding expert testimony in federal civil trials’ (2002) 8 Psychology, Public Policy and Law 309.

32 Lisa L Smith, Ray Bull and Robyn Holliday, ‘Understanding juror perceptions of forensic evidence: investigating the impact of case context on perceptions of forensic evidence strength’ (2011) 56 Journal of Forensic Sciences 409.

33 Daniel A Krauss and Bruce D Sales, ‘The effects of clinical and scientific expert testimony on juror decisionmaking in capital sentencing’ (2001) 7 Psychology, Public Policy and Law 267.

factors include the expert’s personal attributes, such as gender, appearance, and perceived credibility, 34 as well as logistical considerations, including the expert's compensation and frequency of courtroom appearances.35

Moreover, an expert’s presentation style, whether categorical (e.g. high/low) or probabilitybased using likelihood ratios, can influence juror decision-making. 36 Finally, an expert’s willingness to acknowledge their own doubts and biases plays a role in how their testimony is perceived.37

Forensic Evidence:

Studies have shown that task-irrelevant contextual information can affect forensic judgments in domains such as fingerprint analysis and DNA mixture interpretation. 38 While biased information in forensic science has historically been viewed as a negative influence,39 research suggests that biases may contribute to accurate decisions under certain conditions.40

The integration of task-irrelevant contextual information by forensic scientists can significantly affect jury decision-making, potentially intensifying bias within the criminal justice system. This compounding effect creates a logical paradox.41

34 Sanja Kutnjak Ivković and Valerie P Hans, ‘Jurors’ evaluations of expert testimony: judging the messenger and the message’ (2003) 28 Law and Social Inquiry 441.

35 Joel Cooper and Isaac M Neuhaus, ‘The “hired gun” effect: assessing the effect of pay, frequency of testifying, and credentials on the perception of expert testimony’ (2000) 24 Law and Human Behavior 149.

36 Kristy A Martire and others, ‘On the interpretation of likelihood ratios in forensic science evidence: presentation formats and the weak evidence effect’ (2014) 240 Forensic Science International 61.

37 Jeff Kukucka and others, ‘Cognitive bias and blindness: a global survey of forensic science examiners’ (2017) 6 Journal of Applied Research in Memory and Cognition 452.

38 Itiel E Dror and others, ‘When emotions get the better of us: the effect of contextual top–down processing on matching fingerprints’ (2005) 19 Applied Cognitive Psychology 799.

39 Glinda S Cooper and Vanessa Meterko, ‘Cognitive bias research in forensic science: a systematic review’ (2019) 297 Forensic Science International 35.

40 Lee J Curley and others, ‘Assessing cognitive bias in forensic decisions: a review and outlook’ (2020) 65 Journal of Forensic Sciences 354.

41 William C Thompson, ‘What role should investigative facts play in the evaluation of scientific evidence?’ (2011) 43 Australian Journal of Forensic Sciences 123.

According to Bayesian reasoning, jurors should evaluate each piece of evidence independently, such as a confession and forensic findings. 42 However, if forensic experts incorporate knowledge of a confession when assessing evidence, jurors may believe they are making objective, separate evaluations. In reality, the evidence is interconnected, producing what is known as the criminalist paradox. 43 This distortion can result in juries making illogical conclusions based on biased forensic assessments.

Despite the subjective nature of forensic evidence interpretation, the mere presence of forensic science in court, particularly DNA analysis, significantly influences jurors. Studies indicate that cases involving DNA evidence are more likely to reach trial and result in convictions.44

Part of DNA’s perceived reliability stems from its presentation as a definitive tool, either providing a correct result or no result at all. 45 However, forensic experts’ subjective interpretations, combined with jurors’ trust in forensic science, can reinforce biases and further distort verdicts. This effect is heightened by the challenge of presenting forensic evidence in a way that does not unintentionally shape jury decisions.

46

Another source of jury bias in expert testimony stems from instruction bias. Expert witnesses typically work for either the prosecution or defence, forming close associations with the legal teams that employ them. This dynamic can subtly shape their testimony, influencing how jurors perceive forensic evidence.47 Such systemic biases within expert testimony further complicate efforts to ensure impartial jury decision-making.

Expert witnesses may not always maintain impartiality, and their testimony can be shaped by external influences, potentially impacting juror decision-making in a cumulative way. This

42 ibid.

43 ibid.

44 Michael Briody, ‘The effects of DNA evidence on homicide cases in court’ (2004) 37 Australian and New Zealand Journal of Criminology 231.

45 Valerie Thompson and Jonathan St B T Evans, ‘Belief bias in informal reasoning’ (2012) 18 Thinking and Reasoning 278.

46 William C Thompson and Eryn J Newman, ‘Lay understanding of forensic statistics: evaluation of random match probabilities, likelihood ratios, and verbal equivalents’ (2015) 39 Law and Human Behavior 332.

47 Itiel E Dror, Bridget M McCormack and Jules Epstein, ‘Cognitive bias and its impact on expert witnesses and the court’ (2015) 54 Judges’ Journal 8.

effect can intensify, leading to broader ramifications within the courtroom. Research by Murrie, Boccaccini, Guarnera, and Rufino demonstrated that forensic psychologists and psychiatrists who were led to believe they were consulting for either the Defence or the Prosecution produced significantly different risk assessment scores: those working under the assumption that they were assisting the prosecution tended to assign higher ratings than those working for the defence.48 As biases permeate multiple layers of the trial process, from forensic evaluations to witness testimony, the resulting effects can meaningfully shape case outcomes, underscoring the difficulties in ensuring objective and fair jury deliberations. This is a reflection of how juries are ultimately affected by other law administrators around them.

Jury Deliberations

Jury deliberations are often regarded as a key mechanism for reducing bias in the criminal justice system.49 The principle behind this claim is that randomly selecting a diverse group of jurors introduces a variety of biases and perspectives, which theoretically balance each other out through discussion.50 Moreover, deliberation allows jurors to examine the facts of a case, scrutinize extreme positions, and collectively refine their interpretations.51

Some studies support the idea that deliberation reduces bias in juror decision-making. For example, research by Taylor on a mock murder trial revealed that individual jurors exposed to negative pre-trial publicity were more likely to render guilty verdicts. However, following deliberation, the influence of pre-trial bias appeared to diminish, with guilty verdicts distributed more evenly across different publicity conditions.52 These findings suggest that deliberations may help jurors counteract external biases introduced before trial.53

48 Daniel C Murrie, ‘Are forensic experts biased by the side that retained them?’ (2013) 24 Psychological Science 1889.

49 Martin F Kaplan and Lynn E Miller, ‘Reducing the effects of juror bias’ (1978) 36 Journal of Personality and Social Psychology 1443.

50 Lee J Curley and others, ‘Informing reform: the views of legal professionals on the unique aspects of Scottish law’ (2021) 17 Medicine, Science and the Law 256.

51 Joel Cooper and Isaac M Neuhaus, ‘The “hired gun” effect: assessing the effect of pay, frequency of testifying, and credentials on the perception of expert testimony’ (2000) 24 Law and Human Behavior 149.

52 Jacqui Taylor and Gemma Tarrant, ‘Trial by social media: how do you find the jury, guilty or not guilty?’ (2019) 1 International Journal of Cyber Research and Education 50.

53 ibid.

However, other research indicates that deliberation does not always eliminate bias. Ruva and Guenther examined whether group discussions lead to a leniency bias or exacerbate polarization.54 Their findings showed that jurors who had not been exposed to negative pretrial publicity were more likely to favour acquittal post-deliberation, suggesting a leniency bias effect. In contrast, jurors who had been exposed to negative pre-trial publicity exhibited source monitoring errors, often misattributing pre-trial information as part of the trial evidence. Crucially, deliberation did not significantly alter their assessment of guilt. These contrasting findings highlight the complexity of jury deliberations in mitigating bias. While group discussion can serve as a corrective mechanism, its effectiveness largely depends on factors such as the nature of pre-trial publicity and how well jurors manage external influences in forming their verdicts. It is also the case that jurors will naturally form “schools of thought” in the course of their deliberations. Some jurors may deem the defendant guilty, and others may want to acquit. However, this is where the nature of jury bias emerges, as the majority of jurors in one “school of thought” will try to influence the minority “school of thought” to join their side so as to obtain a unanimous verdict, or in the least to win some of the minority jurors over so that they can achieve a majority verdict. Some jurors may even do this for expediency to try to wrap up on the case so that they can fulfil their jury duty.

To gain a more comprehensive and nuanced understanding of how group deliberations influence bias, further research incorporating direct observations of jury discussions is needed. Expanding empirical studies in this area would help clarify whether deliberation effectively mitigates bias or unintentionally reinforces pre-existing attitudes.

Jurors and Judicial Instructions to the Jury

Devine argues that jurors often overestimate their understanding of judicial instructions more than judges assume and beyond what society expects. 55 He challenges optimistic statistics, contending that many jurors fail to grasp legal directions adequately, even though they believe

54 Christine L Ruva and Christina C Guenther, ‘From the shadows into the light: how pretrial publicity and deliberation affect mock jurors’ decisions, impressions, and memory’ (2015) 39 Law and Human Behavior 294.

55 Dennis Devine, Jury Decision Making – The State of the Science (1st edn, New York University Press 2012) 56.

otherwise. More concerningly, those with the weakest comprehension tend to impose the harshest decisions on both guilt and sentencing.56

In contrast, findings from the Crown Court Study suggest that fewer than ten percent of jurors reported difficulty in following a judge’s summing up of the law.57 Thomas’s empirical research indicates that jurors require additional support in navigating deliberations.58 Her study found that 82 percent of jurors desired more guidance, with 49 percent unsure of how to handle legal confusion, 45% concerned about preventing undue influence in decision-making, and 35 percent uncertain about addressing procedural issues if complications arose. 59 Thomas proposes that providing juries with general deliberation guidance could streamline the process, leading to both efficiency and cost reductions in trials.60

In high-profile cases, jurors may unknowingly rely on biased or unreliable media coverage unless they receive clear judicial instructions. For example, during the trial of William Roache, Justice Holroyde explicitly cautioned jurors against forming assumptions based on similar cases.61 This underscores the necessity of judicial intervention to ensure fair deliberations. In that case, for the sake of effectiveness, why not just let the judge go ahead and decide the case judiciously instead of taking up time and resources to “school” jurors like they were students?

Hence, this article next advocates for alternative models of court adjudication.

Alternative Court Models

The Magistrates’ Court Model:

56 ibid 59.

57 Royal Commission on Criminal Justice, ‘Crown Court Study’ (1993) HMSO Research Study No.19, 216.

58 Cheryl Thomas, ‘Avoiding the Perfect Storm of Juror Contempt’ (2013) 6 Criminal Law Review 483, 496.

59 ibid.

60 ibid.

61 BBC, ‘William Roache trial: Jury retires to consider verdict’ (5 February 2014) <https://www.bbc.co.uk/news/uk-england-manchester-26020428.amp> (accessed 20 July 2025)

Jury trials are not the only means of securing legitimacy in criminal justice. If lay participation is fundamental to maintaining trust in the system, magistrates may offer a viable alternative. English magistrates are classified as either lay magistrates (Justices of the Peace) or professional District Judges. Lay magistrates receive legal guidance from Justices’ clerks, who provide expert advice to assist in their decision-making.62

However, Darbyshire cautions that magistrates may rely too heavily on clerks, potentially undermining their independence.63 She argues that clerks should be granted only the minimal judicial authority necessary unless formally recognized as judges. Furthermore, she highlights a tendency among lay magistrates to defer to judicial experts, a phenomenon known as “obedience.”64 Establishing clear standards for the roles and functions of Justices’ clerks would help preserve the lay element in the Justices of the Peace system.

Compared to jury trials, magistrates’ courts operate more swiftly. Jury deliberations can be time-consuming, and perverse verdicts can lead to inefficiencies. In R v Dallas, Lord Judge noted that misconduct by a jury member resulted in wasted time and unnecessary public expense.65 Lord Falconer advocates for a streamlined criminal justice system, emphasizing the advantages of summary justice.66 Given its procedural efficiency, the magistrates’ court system presents a compelling alternative to jury trials.

Despite these advantages, criticisms of lay magistrates persist. Lloyd-Bostock observes that experienced magistrates, unlike jurors, frequently make similar decisions, leading to more routine and expert judgment.67 Over time, magistrates may develop decision-making patterns based on familiar case types, potentially affecting their objectivity. This suggests that while

62 Judiciary of England and Wales, ‘2012 Judicial Diversity Statistics - Gender, Ethnicity, Profession and Age’ (2012).

63 Penny Darbyshire, ‘A Comment on the Powers of Magistrates’ Clerks’ [1999] Criminal Law Review 377, 380.

64 Penny Darbyshire, Andy Maughan and Angus Stewart, What Can the English Legal System Learn from Jury Research Published Up to 2001?: Research Papers in Law (1st edn, Kingston University 2002) 39.

65 Attorney General v Dallas [2012] EWHC 156 (Admin), [2012] 1 WLR 991 [38].

66 Charles Falconer, Doing Law Differently (1st edn, Department for Constitutional Affairs 2006) 4.

67 Sally Lloyd-Bostock, ‘The Effects on Lay Magistrates of Hearing That the Defendant Is of "Good Character," Being Left to Speculate, or Hearing That He Has a Previous Conviction’ [2006] Criminal Law Review 189, 192.

magistrates offer efficiency, their reliance on prior experience may shape their approach to cases in ways that differ from traditional jury deliberation.

Conversely, Sprack advocates for the lay magistracy, arguing that magistrates bring valuable real-world experience to the bench and that collective decision-making fosters greater fairness through dynamic interactions among multiple adjudicators. 68 Slapper highlights the role of magistrates in reinforcing public confidence in the English criminal justice system.69 He further argues that granting judicial authority to a broad segment of society provides social benefits by increasing civic engagement.70

Public perception of jury trials remains mixed. A 2002 Bar Council survey found that 73 percent of respondents believed jurors were more likely than a judge and two magistrates to be influenced by personal biases, while 24 percent thought jurors would be less affected by their own views.71

In England, jury selection is based on a principle of randomness, widely regarded as fundamental to ensuring a fair trial. The abolition of peremptory challenges aims to broaden jury service opportunities across diverse demographics. By contrast, the United States retains peremptory challenges and places greater emphasis on voir dire, requiring jurors to demonstrate sound character and a reputable background.72 The English approach prioritizes jury diversity, ensuring that defendants are judged by a broad cross-section of society 73 However, Spencer raises concerns that random selection may occasionally result in juries dominated by individuals with prejudices or a lack of responsibility, which could undermine the integrity and fairness of legal proceedings.74

68 John Sprack, A Practical Approach to Criminal Procedure (14th edn, Oxford University Press 2012) 94–95.

69 Gary Slapper, How the Law Works (3rd edn, Routledge 2014) 53.

70 ibid.

71 Bar Council, The Views on Trial by Jury: The British Public Takes a Stand (1st edn, The Bar Council 2002).

72 Nancy S Marder, ‘Peremptory Challenges: A Barrier That Unnecessarily Limits Who Can Serve as Jurors’ in The Power of the Jury: Transforming Citizens into Jurors (Cambridge University Press 2022) 76–112.

73 ibid.

74 John Spencer, ‘Did the Jury Misbehave? Don’t Ask, Because We Do Not Want to Know’ (2002) 61(2) Cambridge Law Journal 291, 293.

If the government aims to enhance the quality of juries as judicial decision-making bodies, it may need to structure criminal trials around individuals deemed true and good, akin to the American system, yet without reinstating peremptory challenges. In this context, trials conducted by lay magistrates could serve as a practical alternative.

Judge-Only Trial:

Sections 43 and 44 of the Criminal Justice Act 2003 introduced to English law the concept of judge-only trials in cases involving serious and complex fraud or instances of jury tampering. While the provision for non-jury trials in cases of jury tampering has been implemented, broader applications remain controversial. Given that jury trials are a cornerstone of the common law system, eliminating them entirely in favour of professional-led trials would likely spark considerable debate and criticism. Blake argues that removing the jury system’s ‘centrepiece’ and replacing it with judge-alone trials would inevitably weaken the entire judicial framework.75

On the other hand, proponents of judge-only trials contend that they are necessary to ensure fair trials in the modern era. Johnston et al. suggest that increasing the use of judge-led proceedings could minimize juror bias caused by exposure to social media and prevent jurors from sharing trial-related information online.76 The ‘Justice for All’ White Paper, published by the Blair-led New Labour government in 2002, acknowledged the invaluable role of juries in the criminal justice system.77 It advocated for reserving jury trials for the most appropriate cases and enhancing jurors’ practical support. This policy aimed to preserve the jury system while limiting its scope to specific circumstances.

Jury reform continued under the coalition government, culminating in the enactment of the Criminal Justice and Courts Act 2015. Before its passage, the Law Commission proposed an alternative trial model that maintained the procedural safeguards of trial by indictment while

75 Nicholas Blake, ‘The Case for the Jury’ in Mark Findlay and Peter Duff (eds), The Jury Under Attack (1st edn, Butterworths 1988) 140.

76 Jane Johnston and others, Juries and Social Media: A Report Prepared for the Victorian Department of Justice (1st edn, The Standing Council on Law and Justice 2013) 16.

77 Home Office, ‘Justice for All’ (Cmd 5563, 2002) 122.

transferring decision-making power exclusively to a judge, particularly when juror misconduct or contempt of court posed risks.78

The ongoing reforms suggest that jury trials will continue to decline. Given the constraints of fiscal policy, Lord Chief Justice Thomas of Cwmgiedd has advocated for removing jury trials for certain indictable offenses and complex fraud cases as part of a broader transformation of the criminal justice system.79 He specifically referenced cases such as minor assaults and lowvalue dishonesty offenses as examples where judge-led trials could improve efficiency.

Role of Judges as Trier of Fact

Finally, the role of a judge in ensuring the fair adjudication of cases cannot be understated. In jury trials, decisions about the admissibility of evidence are made by the judge without the jury present. This ensures that if certain material is deemed inadmissible, the jury never hears it, thereby preventing undue influence. Arguments on admissibility are conducted separately, and only evidence approved by the judge reaches the jury. In judge-alone trials, however, the same individual evaluates both the admissibility of evidence and the case outcome. While judges are expected to disregard any inadmissible material they encounter, concerns remain about the potential for subconscious influence. Nevertheless, courts generally uphold the view that trained judges can set aside such material and maintain impartiality in their rulings.

Judicial decisions across multiple cases in Singapore and Hong Kong underscore a consistent trust in the professional discipline of judges to remain objective, even when exposed to potentially prejudicial material. In Wong Kim Poh v Public Prosecutor the court observed that although knowledge of an accused’s prior convictions or character flaws could conceivably impact judicial reasoning, it did not follow that this influence would actually materialise or affect the outcome in a specific instance.80

78 Law Commission, ‘Contempt of Court: A Consultation Paper’ (Consultation Paper No 209, 2012) 25.

79 Frances Gibb and Sean O’Neill, ‘Lord Chief Justice Condemns Creeping Secrecy in Trials’ The Times (London, 5 March 2014) <http://www.thetimes.co.uk/tto/law/article4266214.ece> accessed 17 July 2025.

80 Wong Kim Poh v Public Prosecutor [1992] 1 SLR(R) 13.

In Tan Chee Kieng v PP, the Court highlighted the distinction between jury and bench trials, noting that a judge, particularly one who has reminded himself/herself against bias, is far less likely to be swayed by improperly admitted material.81 Similarly, this judicial confidence was reinforced in Tan Meng Jee v PP, where the court explicitly affirmed its belief in the judiciary’s ability to disregard such evidence when required.82

The Privy Council has also played a pivotal role in upholding fair trial standards by intervening in cases where evidentiary missteps or judicial errors threatened the integrity of proceedings. In Chan Kwok-keung and Chan Kar-shing v The Queen, the Council addressed a significant misdirection: the trial judge had erroneously suggested that the defendant’s delayed departure to Macau, occurring nearly ten months after the alleged offence, could serve as corroboration for an accomplice’s testimony. Recognising the prejudicial nature of this instruction, the Privy Council quashed the murder conviction. Its jurisprudence reflected a contextual and principled approach to procedural fairness, eschewing rigid formulae in favour of nuanced assessments tailored to the circumstances of each case.83

The Privy Council’s view in Attorney-General of Hong Kong v Siu Yuk‐Shing adds a further dimension: if a judge can set aside evidence deemed inadmissible, they can equally be trusted to assign appropriate probative weight to evidence ruled admissible, without being improperly influenced.84 The Privy Council held that the prejudicial impact of admitting an accused’s prior conviction is significantly diminished in trials conducted by a judge sitting alone. Without the influence of a jury, the risk that such evidence might improperly sway the factfinder is considered far less consequential.

Collectively, these authorities illustrate that the rules on evidence, especially those designed to guard against prejudice, were fundamentally shaped with the jury system in mind, where laypersons require stricter safeguards than legally trained adjudicators.

81 Tan Chee Kieng v Public Prosecutor [1994] 2 SLR(R) 577.

82 Tan Meng Jee v Public Prosecutor [1996] 2 SLR(R) 178.

83 Chan Kwok-keung and Chan Kar-shing v The Queen [1989] UKPC 39.

84 Attorney-General of Hong Kong v Siu Yuk-shing [1989] 1 WLR 236.

These aforementioned cases reflect more than a practical concession to judicial professionalism. They signal a structural confidence embedded within common law systems that elevates the ideal of judicial impartiality into a functional cornerstone of bench-only trials. The appellate courts’ recurring emphasis on the discipline of judges at all levels of the Judiciary underscores a legal culture that treats potential cognitive bias not as an insurmountable flaw, but as a manageable risk, mitigated through legal reasoning and ethical obligation.

However, this ideal invites scrutiny. While courts assert that judges can compartmentalise and disregard inadmissible material, psychological research into implicit bias and cognitive load raises legitimate questions about whether complete mental segregation is realistically attainable, even for experienced jurists. The assumption that a legal education and institutional ethos can wholly insulate decision-making from unconscious influence may overestimate the capacity of human cognition to self-regulate in moments of ambiguity or moral pressure. Additionally, these cases underscore an often-unspoken reality: evidentiary rules are historically jury-centric in design. 85 Their transplantation into judge-only trials arguably reflects a doctrinal inertia rather than a principled recalibration tailored to the realities of judicial decision-making. This raises a deeper inquiry: to what extent should evidentiary doctrine evolve to acknowledge the psychological dynamics of bench trials, rather than simply reaffirming judicial resolve?

In this light, the judicial assurances in these cases do more than defend past outcomes. They reaffirm a trust in the legitimacy of the adversarial system itself on the premise that legal safeguards, no matter how porous in practice, retain their normative authority. The tension between idealised impartiality and fallible human judgment remains a defining and perhaps necessary paradox of modern adjudication.

Even acknowledging the psychological complexity of judicial reasoning, the case for judgeonly trials remains compelling, precisely because the judiciary’s exposure to inadmissible material is transparent and subject to appellate scrutiny. Unlike jury trials, where deliberations occur in secrecy and jurors are not required to provide reasons for their decisions, judicial determinations are typically reasoned and subject to review. This creates a vital safeguard:

85 Examples may be found in the historical reluctance in England and Wales to permit hearsay evidence and evidence of the defendant’s bad character to go before juries. See R v Blastland [1986] AC 41, 54; Scott v R [1989] AC 1242, 1256; R v Dossett [2013] EWCA Crim 710 [32].

when a judge errs in assessing or applying evidentiary rules, the error is visible, reviewable, and correctable. With juries, by contrast, a flawed evidentiary impact, such as being subconsciously influenced by prior bad acts, can rarely be diagnosed, let alone addressed, due to the opacity of jury reasoning.

Trials without juries reduce the interpretive noise that can arise from lay misunderstandings of legal standards. Jurors may unconsciously conflate moral judgment with legal thresholds or assign undue weight to emotional testimony, however well-intentioned. Judges are trained to apply legal standards methodically, to separate credibility from sympathy, and to calibrate factfinding within the bounds of precedent and doctrine. Their decisions are also framed by institutional discipline: expectations of accountability, professional identity, and the everpresent possibility of appellate correction.

The rise of complex, document-heavy litigation in modern legal systems favours adjudicators with legal fluency. Cases involving intricate commercial transactions, financial fraud, or nuanced constitutional analysis may overburden lay juries, turning trials into exercises in simplification rather than truth-seeking. In such contexts, the bench trial is not merely a procedural alternative but a structural advantage, allowing for more precise, legally coherent outcomes.

While concerns about subconscious influence deserve attention, they do not undercut the foundational strengths of judge-alone adjudication. Rather, they invite continuous refinement of evidentiary rules and judicial training, alongside a recognition that adjudication, like all human judgment, exists in tension with imperfection. In embracing that tension, judge-alone trials prioritise transparency, legal integrity, and structural resilience over the symbolic virtues of lay participation.

In summary, it is submitted by the author that the enduring legitimacy of judge-alone trials lies not in the denial of human fallibility, but in the institutional mechanisms designed to confront it. Judicial reasoning, while susceptible to the same cognitive pressures that affect all decisionmaking, is embedded within a framework of transparency, accountability, and doctrinal coherence.

Judge-only trials offer a mode of adjudication that elevates rationality over rhetoric and process over perception, where justice is not merely seen to be done but demonstrably articulated and scrutinized. In an age where legal complexity and public accountability are ever more intertwined, the bench trial remains not a compromise, but a deliberate affirmation of principled adjudication.

Conclusion

In conclusion, while jury systems represent an ideal of civic participation, they are demonstrably susceptible to a range of biases that could be cognitive, racial, emotional, and social. These can distort the path to justice. Jurors, as laypersons, may misinterpret evidence or be unduly swayed by dominant personalities or media narratives, with little transparency in their reasoning. In contrast, adjudication by judges or magistrates offers a more reliable framework for fairness.

With legal training, procedural discipline, and the obligation to provide written, reasoned judgments, judicial officers enhance accountability and minimise emotional influence. Ultimately, the author suggests that judge-based systems without juries would better serve the goals of fairness and legal consistency, offering a more stable safeguard against prejudice in adjudication. To strengthen and refine the case for judge-led adjudication over jury trials, further research is warranted along the following lines:

(a) Empirical studies comparing conviction rates, appeal outcomes, and sentencing consistency between jury and bench trials across jurisdictions could illuminate how bias manifests in practice;

(b) interdisciplinary inquiry into the psychology of judicial decision-making, particularly examining how judges themselves mitigate personal biases through training and institutional safeguards, which would offer a more nuanced assessment of fairness;

(c) explore the effectiveness of hybrid systems, such as judge-plus-layperson assessor models, and their impact on transparency, public trust, and legal reasoning; and

(d) studies on reforms to jury systems, such as improved juror education, anonymised deliberations or verdict rationales, could clarify whether the flaws attributed to juries are inherent or remediable.

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FILLING THE GAPS IN REPRODUCTIVE WRONGS: LOSS

OF GENETIC AFFINITY AND ITS POTENTIAL

IN UK LAW

Anni Huang*, Cheryl Soong**, Wesley Gordon Harrison***, Zun Yin Ngo****

Introduction

As modern technology makes conception more accessible, it also introduces new risks. These include the possibility of a genetic material mix-up during the fertilisation process of in-vitro fertilisation (“IVF”).

1 In Singapore, the Court of Appeal (“SGCA”) in ACB v Thomson Medical Pte Ltd (“ACB”)2 introduced a novel head of damage, the “loss of genetic affinity” (“LOGA”), to allow for claims where medical negligence during the IVF process results in a child not genetically related to both intended parents.3

In part I of this article, the reasoning and principles behind the LOGA are explored. While the LOGA offers a potential solution for such complex reproductive harms in Singapore, its applicability in English law still remains in question. Though the UK courts have recognised the importance of genetic ties, questions were raised about whether experiencing racism could be considered a harm in relation to differing genetic relations of the child. The courts’ subsequent reluctance to recognise it may therefore pose difficulties to implementing the LOGA in English law. However, part II of this article will explore other factors that result in the argument that the LOGA could be meaningfully incorporated into English tort law. Part III

* Singapore Management University (SMU) (LLB Class of 2028)

** Singapore Management University (SMU) (LLB Class of 2028)

*** Incoming law student at Singapore Management University (SMU) (LLB Class of 2030)

**** Incoming law student at National University of Singapore (NUS) (LLB Class of 2030)

1 Merle Spriggs, 'IVF mixup: white couple have black babies' (2003) 29(2) Journal of Medical Ethics <https://doi.org/10.1136/jme.29.2.65> accessed 21 May 2025.

2 [2017] SGCA 20 (“ACB”).

3 ACB (n 2) [139].

will address potential gaps in the LOGA as it is currently formulated, and suggest alternative approaches to remedy such gaps.

I. The reasoning and principles behind the LOGA

1.1 Unpacking ACB v Thomson

In ACB, a couple conceived a daughter via IVF, whose skin and hair colour differed from her biological parents.4 Investigations revealed that during IVF, the mother’s (“the Appellant”) egg had been fertilised with the sperm of an unknown male donor instead of her husband.5 She then brought a claim in negligence against the companies operating the hospital and fertility clinic, as well as two embryologists at the clinic who were directly involved in the IVF procedure.6

The SGCA broke new legal ground when it accepted and recognised the LOGA, with damages capped at 30% of upkeep costs as this was deemed the just, equitable and proportionate amount relative to the circumstances of the case.7

1.2 How the SGCA arrived at the LOGA and not other losses

The LOGA arose from the SGCA’s search for alternative theories to the traditional subcategories of medical negligence: namely, wrongful life, wrongful birth, and wrongful pregnancy.8 The SGCA explicitly stated that “[i]t is immediately apparent that the present case does not fit neatly into any of the aforementioned categories” in relation to those three subcategories. These sub-categories usually arise when there is an unintentional conception or birth.9 All three sub-categories were therefore unsuitable in this case as the Appellant and her husband wanted to have a child,10 as in all cases of IVF. Furthermore, the harm in contention was not the existence of the child but the loss of having a genetically related child.11 The LOGA was hence the eventual solution that was sought to address this issue.

4 ACB (n 2) [131].

5 ACB (n 2) [8].

6 ACB (n 2) [3].

7 ACB (n 2) [150].

8 ACB (n 2) [30].

9 ACB (n 2) [30].

10 ACB (n 2) [35].

11 ACB (n 2) [136].

While there was undoubtedly a need to compensate the Appellant for the harm suffered,12 the Appellant’s unique circumstances made it difficult to articulate precisely what she had lost. As the SGCA put it, “if the IVF procedure had been correctly performed … she would have been perfectly willing to … [raise] that child. However, it surely cannot be said that she or her Husband ever contemplated (let alone intended) having to raise a child that was not completely theirs … born to them in the present circumstance.”13 This was a key factor leading to the development of the LOGA – had the IVF procedure been carried out correctly, the Appellant would have willingly accepted the financial and emotional responsibilities of raising a child genetically related to both parents.14

The SGCA declined to recognise “loss of autonomy” as a distinct head of damage, citing three main objections: conceptual, coherence, and over-inclusiveness. 15 First, the conceptual objection arises from the inherently nebulous nature of autonomy itself. 16 Competing philosophical accounts illustrate that there is no stable, universally accepted definition of autonomy suitable for legal application.17 Without a clear and workable concept, autonomy cannot serve as a reliable anchor for liability in tort.18 Second, the coherence objection stems from the fact that loss of autonomy does not align with the traditional understanding of "damage" in negligence in common law.19 Tort law compensates for objective detriment, such as physical injury, whereas most interferences with autonomy do not exactly render a person worse off.20 Recognising such claims would shift tort law toward a rights-based, vindicatory model, which is inconsistent with the compensatory structure of negligence in common law systems. 21 Third, the over-inclusiveness objection warns that recognising loss of autonomy

12 ACB (n 2) [4].

13 ACB (n 2) [41].

14 ACB (n 2) [41].

15 ACB (n 2) [115].

16 ACB (n 2) [115].

17 ACB (n 2) [116]–[119].

18 ACB (n 2) [119].

19 ACB (n 2) [120].

20 ACB (n 2) [120].

21 ACB (n 2) [121].

“would allow for the circumvention of existing control mechanisms in the tort of negligence.”22 Nearly any form of interference could be argued to be a violation of autonomy.23 This would allow plaintiffs to bypass established rules on actionable damage and causation, thereby destabilising the fundamental principles of tort law.24

The claim for upkeep costs was also dismissed on public policy grounds. 25 The SGCA recognised that “the obligation to maintain one’s child is an obligation at the heart of parenthood and cannot be a legally recognisable head of loss.” 26 Further, it reasoned that recognising upkeep claims would complicate the nature of the parent-child relationship by placing the mother’s personal interests at odds with her parental duties.27

Overall, taking into account the unique situation of the Appellant, the SGCA found that the main harm she suffered was the loss of genetic affinity.28 In this case, this means not having a child biologically related to both her and her husband. The court also noted that the Appellant’s injury stemmed not merely from an interrupted reproductive plan, but also the denial of biological parenthood.29 Consequently, “the Appellant’s welfare [was] detrimentally affected [due to] a complex amalgam of biological, social, ethical, and historical factors.”30 Thus, this head of loss was not confined to reproductive disappointment alone. The SGCA awarded damages accordingly.31

II. Applicability of the LOGA in UK Jurisdiction

2.1 Approaches in similar cases in the UK

22 ACB (n 2) [123].

23 ACB (n 2) [123].

24 ACB (n 2) [124].

25 ACB (n 2) [101].

26 ACB (n 2) [86].

27 ACB (n 2) [86].

28 ACB (n 2) [136].

29 ACB (n 2) [126].

30 ACB (n 2) [130].

31 ACB (n 2) [135].

Since ACB was decided in 2017, no known case discussing the LOGA has come before the UK courts. Nevertheless, there remains a similar gap in UK law. UK courts have long been hesitant to award compensation for a loss of autonomy. 32 Claims for upkeep costs in reproductive negligence cases are also only awarded in exceptional circumstances, such as when the child is born with a significant disability.33 In McFarlane v Tayside Health Board, 34 a claim for full child-rearing costs or claims based on the birth of a healthy but unexpected child was rejected.35 More notably, in the Northern Irish (“NI”) case of A and B (by C, their mother and next friend) v A (Health and Social Services Trust) (“A and B”),36 a claim arising from a child being born with a different skin colour was dismissed,37 also suggesting judicial hesitation to recognise harms based on racial or genetic characteristics that differ from expectations. In situations of genetic mix-ups and in the absence of LOGA, the English courts may find themselves in the same position as the Singapore courts in ACB – where the respondent is clearly negligent, but the plaintiff cannot be adequately compensated with the existing legal tools available to the court.38 As such, the LOGA could be a valuable addition to English law.

2.1.1 Similar Transferrable Aspects

Some aspects of the LOGA are likely applicable to the UK, as they reflect widely shared cultural norms, including the significance often placed on genetic parenthood. In both Singapore39 and the UK40, blood ties have traditionally carried strong socio-cultural weight.

32 Craig Purshouse, ‘Liability for Lost Autonomy in Negligence: Undermining the Coherence of Tort Law?’ (2015) 22(3) Torts Law Journal 226. See also Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52 [70] (Lord Hope).

33 Parkinson v St James & Seacroft University Hospital NHS Trust [2001] EWCA Civ 530, [2002] QB 266, 283.

34 McFarlane v Tayside Health Board [2000] 2 AC 59 (HL).

35 McFarlane (n 35) [4]. McFarlane originated in Scotland but was decided by the House of Lords. As such, it is binding precedent on courts in England and Wales and holds persuasive authority in Scotland and Northern Ireland.

36 A and B (by C, their mother and next friend) v A (Health and Social Services Trust) [2011] NICA 28, [2012] NI 77 This is a decision of the Northern Ireland Court of Appeal. It is persuasive but not binding on English courts.

37 ibid [23]–[25].

38 ACB (n 2) [106]. The SGCA’s own admission that it might come into question and appear “unjust and unfair” for the respondents to be liable for only a minimal amount of damages, despite their own admission of liability, implies more needs to be done, possibly via the LOGA.

39 ACB (n 2) [128].

40 Alice Diver, A Law of Blood-ties - The 'Right' to Access Genetic Ancestry (Springer Cham 2013).

While genetic parenthood remains a significant cultural value in both jurisdictions, it exists alongside other recognised forms of parenthood, such as adoption. In Re G (Children)41, the UK courts acknowledged that knowing that a child is biologically related can bring “a very special sense of love for and commitment to that child.” Moreover, UK surrogacy laws similarly support the use of one’s own genetic material in conception, illustrating the value placed on genetic continuity.42 This idea of genetic relatedness, as well as its broader social implications, forms the normative foundation of the LOGA. 43 The judicial attention to the concept in UK courts is a strong indicator of the LOGA’s potential applicability.

2.2 Challenges of implementing the LOGA in UK jurisdiction

While both Singapore and UK courts condemn racism,44 they diverge on how such social harms are treated under negligence. The Singapore courts acknowledged that the risk of a child being subjected to racist remarks due to them looking different to their parents, if this occurred due to an IVF mix-up, contributes to a legally cognisable harm.45 The UK courts, however, have been more reluctant to recognise such indirect social harms in negligence.46

One might argue that racist remarks could be more appropriately addressed under the tort of defamation. However, defamation targets the publisher of the remarks and not the negligent party responsible for creating the circumstances under which those remarks arise. 47 This highlights a gap in redress which is one that the LOGA seeks to address by holding IVF providers accountable for foreseeable social harms arising from their negligent acts, including racialised stigma.48

41 [2006] UKHL 43, [2006] 1 WLR 2305.

42 Helena Ragoné, ‘Chasing the Blood Tie: Surrogate Mothers, Adoptive Mothers and Fathers’ (1996) 23(2) American Ethnologist 352

43 ACB (n 2) [128].

44 ACB (n 2) [134].

45 ACB (n 2) [134]–[135].

46 A and B (n 37) [10].

47 Golden Season Pte Ltd v Kairos Singapore Holdings Pte Ltd [2015] 2 SLR 751 [35].

48 ACB (n 2) [135]. The SGCA essentially stated that it would be rather unjust to refuse to recognise the true loss suffered by the Appellant, which arose from social, ethical and historical factors. Hence, the SGCA ended up holding “affinity” to be a cognisable injury that should sound in damages.

2.2.1 Opinion of the SGCA

In ACB, the Appellant and her husband faced curious looks and questions about Baby P’s skin tone. 49 The SGCA viewed racism as a “social reality that [must be confronted]”, 50 and recognised it as a part of the complex loss the Appellant had suffered.

2.2.2 How the UK courts might opine

In the NI case of A and B, as discussed in ACB, 51 a couple underwent IVF using donor material, and due to a mistake, conceived children who had a different skin colour from the parents. The appellants faced derogatory racial comments and hurtful name calling.52 In contrast to ACB, the court did not view the difference in skin tone as a form of damage. There were two main reasons for this decision. First, the court considered that having a different skin colour from one’s parents and the people around them “cannot sensibly be regarded as damage or disability,” and it would thus be offensive to consider such an outcome a form of “damage.”53 A child who is otherwise healthy and normal thus has not suffered any loss.54 Secondly, while the court acknowledged that racism exists in society, just as with insensitive comments on religion and personal background, it did not necessarily mean that “the recipient of the comments is damaged, injured or disabled by the factors which led the intolerant to make the comments”.55 We speculate that the SGCA may have been more keen on recognising racism as a legal harm than the NI court due to a difference in societal context. Statistically, Singapore has a more culturally diverse population56 than NI, where only 3.4% of the population is from a minority group.

57 As such, the SGCA may have been more keen to validate that being subject to racism is a harm. However, the NI court did acknowledge that if the IVF mistake had resulted in a

49 ACB (n 2) [131].

50 ACB (n 2) [134].

51 ACB (n 2) [132].

52 ACB (n 2) [132].

53 A and B (n 37) [9].

54 A and B (n 37) [9]

55 A and B (n 37) [10].

56 Singapore’s citizen population consists of 75.6% Chinese, 15.1% Malay, 7.6% Indian, and 1.7% other ethnic groups. See Prime Minister’s Office, ‘Population in Brief’ (2024) <https://www.population.gov.sg/files/mediacentre/publications/Population_in_Brief_2024.pdf> accessed 15 July 2025.

57 Robbie Meredith and Toni Connor, ‘Northern Ireland is 'least diverse' part of the UK’ (BBC News, 15 February 2025) <https://www.bbc.co.uk/news/articles/cq5gn10z8gwo> accessed 23 June 2025.

child suffering from real genetic defects, there could have been a different judicial outcome.58 This suggests that UK courts may be willing to recognise hereditary health risks as a valid harm.

2.3 Overall verdict on applicability in the UK

On the whole, the LOGA is likely applicable to the UK due to the UK’s recognition of the importance of genetic ties. While UK negligence law may be broad enough to accommodate harms akin to LOGA without recognising it as a distinct head of damage, the principles underpinning LOGA remain applicable within the UK context.59 We submit that A and B’s decision may pose some difficulties in terms of recognising being subjected to racism as a harm; courts potentially face a rather significant source of discomfort in recognising racism as a compensable head of loss, as it could suggest that being born with a certain skin colour (or other genetic physical traits) is a loss that ought to be compensated. However, that both UK and Singapore courts agree that racism exists in society and should be condemned is at least a common starting point and invites further discussion should the case arise.

III. Gaps In The LOGA

3.1

Donor-donor swap and a child born healthy

While the LOGA is a welcome addition to courts’ legal tools for IVF claims, it only addresses the scenario where genetic affinity is lost, and does not currently account for other meritorious IVF related cases. Consider the situation where a couple undergoing IVF chooses to use genetic material from one partner and a chosen donor, but the genetic material from the chosen donor is mistakenly substituted for that of another donor. This is similar to the facts of A and B 60 We submit that this scenario would likely fall outside the scope of LOGA, and this in itself is where the first gap lies, as there would be no change in the genetic relatedness of the child to the IVFseeking parent – the child is related to only one original parent, and a different donor would not affect that relation since they are not the original parent. What the LOGA aims to protect –“the conscious decision of [the] parents to have a child [through IVF] to maintain an

58 A and B (n 37) [11].

59 Re G (children) (residence: same-sex partner) [2006] 4 All ER 241 [33]; [38].

60 A and B (n 37) [4].

intergenerational genetic link and to preserve affinity”61 – is not immediately present and met. Despite this, there is clearly some form of disruption of reproductive intent in such a scenario. Although such a case has not come before the Singapore or UK courts, it raises these questions: how can such cases be approached, and can the LOGA be modified to provide redress in such cases?

The first gap, as mentioned earlier, stems from situations where a couple consciously selects a third-party donor to replace the genetic material of a partner via IVF. We submit that the fundamentals in formulating the LOGA – the protection of reproductive intent and the socially constructed value of genetic relatedness – should apply here as well, albeit indirectly. After all, couples who undergo IVF often take on considerable financial and physical burdens to have a child that is genetically related to at least one parent.62 They often resort to using a third party donor only because they are unable to use one partner’s genetic material, due to infertility or other medical conditions, not because being genetically related is less important to them.63 The process of donor selection is often deliberate and thoughtful, especially when couples aim to match the donor’s genetic traits as closely as possible to those of the infertile partner. This would mirror the intent seen in ACB, where both partners sought to have a child with their own genetic material.

In such cases where the donor is chosen specifically to reflect the genetic makeup of the infertile partner as closely as possible, a similar form of affinity is at stake. If the clinic negligently substitutes the donor with an unintended one, this disrupts the couple’s reproductive plan and defeats their effort to maintain that intergenerational genetic link and preserve affinity. As such, we argue that the LOGA should apply, provided that the emotional and social disruption is comparable to that recognised in ACB.

3.1.1 Remedying the first gap

61 ACB (n 2) [135].

62 Tabitha Freeman, Susanna Graham, Fatemeh Ebtehaj and Martin Richards (eds), Relatedness in Assisted Reproduction: Families, Origins and Identities (Cambridge University Press 2014) Chapter 4.

63 The Ethics Committee of the American Society for Reproductive Medicine, ‘Family Members as Gamete Donors and Surrogates’ (2004) 82 Fertility and Sterility <https://www.fertstert.org/article/S0015-0282(04)008891/fulltext> accessed 10 July 2025.

In such cases, we suggest that courts could extend the scope of the LOGA to address cases where the originally chosen donor material was negligently swapped with that of the wrong donor. This would mean treating the donor-child link as analogous in significance to the biological-parent-child link. The significance of this link arises from the conscious decision of the parents to have a child through IVF via a chosen third party, selecting a donor to mirror the infertile parent’s genes as closely as possible, in a bid to maintain an intergenerational genetic link and preserve affinity between both the parents and the child. Expanding the LOGA would give recognition that such a link carries sufficient emotional and social weight to merit legal protection.

By contrast, where couples choose donors in substitution of the infertile partner, without regard to genetic resemblance, the LOGA may not be appropriate. This is because there is no meaningful attempt to preserve genetic continuity, which is the core concern the LOGA was designed to protect and recognise.

3.2 Donor-donor swap and a child born unhealthy

The second notable gap in the LOGA lies in its focus almost entirely on social harms.64 The LOGA was developed based on a nuanced understanding of autonomy that takes into account prevailing family-building norms, kinship structures, and the socially constructed value of genetic relatedness. 65 Therefore, it does not adequately address medical harms, particularly health risks arising from the use of an unintended donor’s genetic material. This becomes especially problematic in IVF cases where a chosen third-party donor is mistakenly substituted with another unknown donor, who may be a carrier of negative hereditary health conditions that pass on to the child. As such, hereditary issues like congenital disorders,66 chronic illnesses like sickle cell disease, 67 or neurological conditions like Huntington’s disease 68 will not be accounted for under the LOGA. Whilst all donors are and should be screened for such issues

64 ACB (n 2) [135].

65 ACB (n 2) [126].

66 Neil A Hanchard, ‘Congenital’ (National Human Genome Research Institute) <https://www.genome.gov/genetics-glossary/Congenital> accessed 30 June 2025.

67 ‘Sickle Cell Disease - Causes and Risk Factors’ (National Heart, Blood, and Lung Institute, 20 August 2024) <https://www.nhlbi.nih.gov/health/sickle-cell-disease/causes> accessed 30 June 2025.

68 ‘Huntington’s Disease’ (National Institute of Neurological Disorders and Stroke, 8 April 2025) <https://www.ninds.nih.gov/health-information/disorders/huntingtons-disease> accessed 30 June 2025.

as per standard medical practice,69 there is still a risk that donors who are carriers of genetic illnesses may slip through unnoticed, resulting in children who are born unhealthy using such genetic material.70

3.2.1

Establishing factual causation

To establish “but for” causation in such a case, parents will have to prove on a balance of probabilities that the wrong donor caused the child to be born with the genetic condition he or she inherited.71 Parents must present strong genetic evidence that the originally chosen donor’s and parents’ gametes could not have produced the same condition, such as expert testimony, carrier status data, or recognised medical indicators. If this burden is met, factual causation can be established. However, we recognise that there is an inherent uncertainty in some cases. Many genetic disorders are polygenic, exhibit variable expressivity, or may require multiple interacting factors which complicates attribution of causation to a single donor. Courts should therefore be cautious, and adopt a nuanced approach grounded in medical consensus.

3.2.2

Remedying the second gap and limitations

Instead of LOGA, we argue that wrongful birth offers a more suitable basis for a claim. This is provided that the child is born with a serious health condition and the parents could have lawfully chosen to terminate the pregnancy had they been properly informed. 72 Unlike the LOGA, which focuses on social harms stemming from disrupted genetic affinity, wrongful birth recognises the harm in depriving parents of an informed reproductive choice in light of foreseeable and significant medical risks.73

Admittedly, wrongful birth claims have limitations. For instance, courts often do not award full child-rearing costs, particularly if the child is not severely disabled.74 Nonetheless, they still

69 Meera Shah, ‘Genetic Carrier Screening and Donor Egg IVF - Everything You Need to Know’ (Cofertility, 22 May 2024) <https://www.cofertility.com/family-learn/genetic-carrier-screening-and-ivf> accessed 1 July 2025.

70 Susan Crockin and William Gibbons, ‘Genetic Carrier Screening In Donors: A Challenging Frontier’(2023) 4(1) F&S Reports <https://pmc.ncbi.nlm.nih.gov/articles/PMC10028464/> accessed 28 June 2025.

71Sunny Metal & Engineering Pte Ltd v Ng Khim Ming Eric [2007] 3 SLR(R) 782 [64].

72 Rees v Darlington Memorial Hospital NHS Trust [2003] 3 WLR 1091, [2004] 1 AC 309 [136].

73 ACB (n 2) [29].

74 Rees v Darlington Memorial Hospital NHS Trust [2003] 3 WLR 1091, [2004] 1 AC 309 [10].

provide a more appropriate avenue for partial compensation in cases involving negligent IVF practices, as compared to the LOGA which, as currently framed, does not encompass medical harm.

3.3 Swapped donor’s genetic traits elevate risk of future health issues

A further gap arises when a child is born healthy but carries an elevated risk of developing serious illness later in life due to the genetic traits of an unintended donor. For instance, the substituted donor may carry genes associated with hereditary cancers or neurological conditions. This situation falls outside the scope of wrongful birth, which typically requires harm to be apparent at birth,75 and is not fully addressed by wrongful fertilisation.

3.3.1 Establishing factual causation and potential remedies

Challenges with establishing factual causation may arise due to the complex nature of genetic causation. Parties could theoretically prove that but for the clinic’s negligence, the child would not have faced this particular risk, if there is sufficient medical evidence that only the substituted donor carried the genetic predisposition, and the chosen donor did not. In practice, however, there are polygenic conditions where the illness could be inherited from both donor and parent. Courts may require strong expert testimony to isolate the donor-specific contribution to the risk. Furthermore, English tort law has traditionally resisted compensating for increased risk of future harm, unless the initial probability of avoiding the said harm exceeds 50%. In Gregg v Scott76, the House of Lords held that a reduction in survival chances from 42% to 25% was not actionable, highlighting the judiciary’s reluctance to award damages based on probabilistic harm alone. Whether such IVF-related risk cases can be accommodated through an expanded reading of wrongful birth, or whether legislative reform is necessary, remains an open question.

Conclusion

75 Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530, [2002] QB 266 [85]–[87] (Hale LJ).

76 [2005] 2 AC 176.

In conclusion, should a case involving similar issues arise in the UK, the LOGA can likely be applied and become part of English law, due to the similarity in importance of genetic ties in both Singapore and the UK. English courts will also have to grapple with conflicting decisions in Singapore and NI on whether being subject to racism is a form of damage. While the LOGA provides meaningful redress in wrongful fertilisation cases, it does not account for certain deserving scenarios – such as where a couple deliberately selects a third-party donor genetic material due to infertility, but that donor material is mistakenly substituted. Traditional claims such as upkeep costs77 or claims via harm of a general loss of autonomy78 have already been rejected by the courts for being too remote or broad. Two possible paths then remain open. Firstly, a wrongful birth claim where the child suffers from serious hereditary health conditions upon birth. Claims for when a child is at risk of suffering from future health conditions due to hereditary genetics need to be further considered. Secondly, there should be an expanded interpretation of the LOGA to include the loss of intended donor-child genetic affinity for the hypothetical scenario given above. We assert that the courts should be open to reforming the LOGA framework to address these emerging realities of modern reproductive technology, so that deserving claimants are not left without recourse.

77 ACB (n 2) [86].

78 ACB (n 2) [115].

DRAWING THE LINE: FIXING NORMAL BASELINES UNDER ARTICLE 5 UNCLOS

Delaney Lim*

Introduction

Climate change and sea-level rise present an unprecedented challenge to the legal architecture of the law of the sea. Under the orthodox interpretation of Article 5 of the United Nations Convention on the Law of the Sea (‘UNCLOS’), the normal baseline is considered ambulatory and recedes with sea-level rise. This approach, however, imposes burdens that low-lying coastal and small island States like Singapore are unfairly forced to bear. In response, this article applies the rules of treaty interpretation under Articles 31 and 32 of the Vienna Convention on the Law of Treaties (‘VCLT’) to argue for an interpretation of Article 5 UNCLOS that permits States to fix their normal baselines.

This argument is developed across four sections. Section I frames the problem and explains how the orthodox interpretation disproportionately harms vulnerable States through the erosion of maritime entitlements and jurisdiction, laying the groundwork for a normative reappraisal of how Article 5 UNCLOS should be interpreted. Section II applies the general rule of interpretation under Article 31(1) VCLT, analysing the text of the provision, its context, and the object and purpose of the Convention. It argues that the normal baseline is defined by reference to a charted line that States are not obliged to update to reflect coastal recession.

Section III reinforces this interpretation by applying Article 31(3)(c) VCLT, showing its consistency with the principles that the ‘land dominates the sea’ and that boundaries must be stable. Finally, Section IV confirms the analysis in Sections II and III by reference to supplementary means of interpretation under Article 32 VCLT, examining widespread State practice that supports the permissibility of fixing normal baselines. This article thus submits that the ambulatory interpretation of Article 5 UNCLOS is neither legally required nor normatively desirable in the face of climate change-induced sea-level rise. Instead, it argues

* University of Oxford, BA (Jurisprudence) Class of 2026

that States may lawfully fix their normal baselines – an essential step to preserving legal certainty and ensuring equity for vulnerable coastal States.

I. Framing the Problem

Scope and Limitations

This article examines the impact of climate change-induced sea-level rise on the law governing baselines and entitlement limits. Within the law of delimitation, this article narrows its scope with two further qualifications. First, while the law of the sea derives from both customary international law and treaty, this article focuses exclusively on the treaty regime under UNCLOS, which largely codified, crystallised, and progressively developed customary norms. Second, this article confines its analysis to Article 5 UNCLOS on normal baselines as the default starting point for measuring entitlement limits. Other provisions warrant separate study outside the scope of this article.

Climate Change and Sea-Level Rise

In 2019, the Intergovernmental Panel on Climate Change (‘IPCC’) concluded it is ‘virtually certain that the global ocean has warmed unabated since 1970 and has taken up more than 90% of the excess heat in the climate system.’1 As a consequence, the global mean sea level has risen at an accelerating rate 2 from 1.4mm per year between 1901-1990 to 3.6mm per year between 2006-2015.3

Future projections are even more concerning. By the end of this century, the Panel estimates that sea levels could rise by 0.59m in a low-emissions scenario and by 1.10m in a more likely high-emissions one.4 These numbers seem modest but would be sufficient to submerge the entire territory of small-island States such as Tuvalu, Kiribati, the Marshall Islands and the

1 IPCC, Special Report on the Ocean and Cryosphere in a Changing Climate – Summary for Policymakers (2019) 9.

2 Ibid 10.

3 Ibid.

4 Ibid 20.

Maldives.5 A rise of 1m would also inundate significant portions of low-lying coastal States including Bangladesh, Guyana and China.6 It is worth noting that the IPCC's methodology is widely regarded as conservative within the scientific community.7

As the IPCC further warned in 2022, ‘[c]limate change impacts and risks are becoming increasingly complex and more difficult to manage. Multiple climate hazards will occur simultaneously … resulting in compounding … risks’ worldwide.’8 These impacts, however, will not be experienced uniformly. Low-lying coastal States and small island States will disproportionately suffer from the effects of sea-level rise.

Baselines and Maritime Entitlements in the Law of the Sea

An examination of the framework of maritime entitlements under UNCLOS is necessary to understand the legal implications of these changes. The normal baseline is defined as the ‘lowwater line along the coast as marked on large-scale charts officially recognised by the coastal State’.9 While the meaning of these terms is contested10 – a question examined in detail in Section II – the orthodox view is that the normal baseline is ambulatory; it follows the physical coastline and shifts landward as the coast recedes with rising sea levels.11

5 IPCC, Climate Change 2022: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Sixth Assessment Report of the IPCC (CUP 2022) 14–15.

6 Ibid 4-76, 12-108.

7 See: Javier Pérez, ‘Statistical Language Backs Conservatism in Climate-Change Assessments’ (2019) 69(3) BioScience 209; Kees van der Geest and Julia van den Berg, ‘Slow-Onset Events: A Review of the Evidence from the IPCC Special Reports’ (2021) 50 Current Opinion in Environmental Sustainability 109.

8 IPCC, Special Report on the Ocean (n 2) 20.

9 UNCLOS, Article 5.

10 DC Kapoor and Adam Kerr, A Guide to Maritime Boundary Delimitation (International Boundaries Research Unit 1988) 31; David Colson and Robert Smith (eds), United States: Shore and Sea Boundaries, vol 3 (US Government Printing Office 2000) 179; ILA, Report of the Committee on Baselines under the International Law of the Sea: Sofia Conference (2012) 57; Russell Purcell, Geographical Change and the Law of the Sea (Brill Nijhoff 2019) 161.

11 Alfred Soons, ‘The Effects of a Rising Sea Level on Maritime Limits and Boundaries’ (1990) 37(2) Netherlands International Law Review 207; David Freestone and John Pethick, ‘Sea Level Rise and Maritime Boundaries’ in Gerald Blake (ed), Maritime Boundaries: World Boundaries (Routledge 1994) 73; Clive Schofield, ‘Shifting Limits? Sea Level Rise and Options to Secure Maritime Claims’ (2009) 3(4) Carbon and Climate Law Review 405.

The oceans are further divided into zones of jurisdiction allocated to coastal States determined by the normal baseline, which serves as the starting point for their measurement. The territorial sea extends up to 12 nautical miles,12 the contiguous zone up to 24 nautical miles,13 and the exclusive economic zone (‘EEZ’) up to 200 nautical miles from the baseline.14 The continental shelf likewise extends to 200 nautical miles but may protrude further in certain circumstances.15

Impacts of Sea-Level Rise under an Ambulatory Baseline

On an ambulatory reading, sea-level rise causes maritime entitlements to retreat along with the normal baseline. A contracting EEZ would strip the coastal State of its sovereign right to explore, exploit, conserve, and manage natural resources in those waters.16 This includes the loss of exclusive rights to fisheries, the regulation and taxation of fishing vessels, and the use of maritime space to generate renewable energy.17 The retreat of the continental shelf may likewise entail the loss of access to seafloor fisheries, precious metals, and vast reserves of hydrocarbon deposits such as petroleum and natural gas.18 Conversely, the area that once lay within a coastal State’s EEZ or continental shelf might now be subject to the freedom of the high seas, open to exploitation by all States.19

These effects also extend to the prescriptive and enforcement jurisdiction coastal States enjoy within each maritime zone. Constantly shifting entitlement limits renders the jurisdiction third parties are subject to and the rules they must comply with uncertain. Within the territorial sea, for instance, third-State vessels are subject to the rules on innocent passage.20 However, if the same waters were to become part of the EEZ, those vessels would instead be entitled to the freedom of navigation permitted on the high seas (subject to the rights of the coastal State in

12 UNCLOS, Article 3.

13 UNCLOS, Article 33(2).

14 UNCLOS, Article 57.

15 UNCLOS, Article 76(1).

16 UNCLOS, Article 56.

17 Yoshifumi Tanaka, The International Law of the Sea (3rd edn, CUP 2019) 157.

18 Donald Rothwell and Tim Stephens, The International Law of the Sea (2nd edn, Hart Publishing 2016) 106.

19 UNCLOS, Article 87.

20 UNCLOS, Article 17.

the EEZ).21 Finally, the total submersion of a State’s land territory may result in the loss of statehood itself, 22 potentially extinguishing all claims to maritime entitlements and the jurisdiction it once held.

Climate change and sea-level rise therefore pose an unprecedented challenge to the legal architecture of the law of the sea. As this section has shown, the ambulatory interpretation of normal baselines renders maritime rights and entitlements vulnerable to sea-level rise. It may simultaneously produce gains for other States, raising difficult questions of equity, whether due to legal opportunism or the reversion of formerly exclusive zones to the global commons. These dynamics threaten the stability of inter-State relations by disrupting the allocation of maritime sovereign rights. In framing the problem, this section has thus laid the foundation for a normative evaluation of the law governing normal baselines today.

II. Article 31(1) VCLT – Text, Context, Object and Purpose

Crucible Approach of Treaty Interpretation

This article interprets Article 5 UNCLOS using the crucible approach to treaty interpretation under the VCLT. Although 61 of UNCLOS’s 168 parties are not parties to the VCLT, they remain bound by the rules prescribed in Articles 31 and 32 VCLT given their status as customary international law.23 Under the crucible approach, a treaty interpretation is produced from the holistic interaction of the elements in Articles 31 and 32 VCLT, as though they were mixed in a crucible.24 This approach rejects any hierarchy among the interpretive elements. For structural clarity, however, this article considers each element in the order they appear in the VCLT. This section begins with the ordinary meaning of the terms in Article 5, followed by the context of other treaty provisions, and the object and purpose of the Convention.25

21 UNCLOS, Article 58(1).

22 Alejandra Camprubí, Statehood under Water: Challenges of Sea-Level Rise to the Continuity of Pacific Island States (Brill Nijhoff 2016) 78; Jane McAdam, Climate Change, Forced Migration and International Law (OUP 2012); ILA Committee on International Law and Sea Level Rise, Sydney Report (2018) 22.

23 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) [2011] ICJ Rep 10, [20]; Avena and Other Mexican Nationals (Mexico v United States of America) (Judgment) [2004] ICJ Rep 12, [48].

24 ILC, Draft Articles on the Law of Treaties with Commentaries (1966) II YBILC 187, 219-20; Richard Gardiner, Treaty Interpretation (2nd edn, OUP 2017) 10.

25 VCLT, Article 31(1).

Text of Article 5 UNCLOS

Article 5 UNCLOS defines the normal baseline as the ‘low-water line along the coast as marked on large-scale charts officially recognised by the coastal State’. This section places particular emphasis on two phrases, which will be the subject of detailed examination: ‘the low-water line along the coast’ and ‘as marked on’.

Low-Water Line

Competing Interpretations of the ‘Low-Water Line’

The phrase ‘low-water line’ has proved to be a source of heated academic controversy, which converges into two schools of thought. The International Law Association’s (‘ILA’) Baseline Committee summarised the contention as a question of whether the ‘normal baseline is a line on a chart (the charted low-water line) or a line on the ‘ground’ (the actual low-water line)’.26

The dominant view favouring an ambulatory baseline interprets the ‘low-water line’ as the tidal datum used in nautical charts,27 constituting it as the physical ‘low-water line along the coast’ that ‘moves landward and seaward with accretion and erosion’.28 This approach is endorsed by the ILA Baseline Committee, concluding that the ‘normal baseline is the actual low-water line along the coast at the vertical datum’ [emphasis added] 29 On this view, the phrase ‘marked on large-scale charts’ merely provides for coastal State discretion to choose the vertical datum by which its low-water line is measured.30

26 ILA (n 11) 3.

27 Daniel O’Connell, The International Law of the Sea Vol. II (Clarendon Press 1984) 682; Warren Reed, Shore and Sea Boundaries Vol. III (UN Government Printing Office 2000) 179; ILA (n 11) 57.

28 Kapoor & Kerr (n 11) 31.

29 ILA (n 11) 47.

30 Ibid.

The second school adopts a static interpretation of the disputed phrase, viewing the ‘low-water line’ not as the physical line where the sea meets the coast, but as the visual line delineated on the charts.31 As Purcell explains:

‘Art. 5 does not pick out ‘the low water line’ as some non-cartographical matter of fact and require that it is ‘marked on large-scale charts officially recognised by the coastal state’. It identifies the low-water line as the normal baseline in significant part because it is a linear representation of the ‘coast’ already marked on nautical charts ’32

The practical difference between the two interpretations was historically negligible.33 However, the difference has become increasingly significant in light of unprecedented sea-level rise.34 If the normal baseline is defined by the physical low-water line, any coastal recession would directly alter the baseline with official charts merely serving an evidentiary function. Conversely, if the charted low-water line is determinative, then the normal baseline remains fixed at the last officially recognised position, regardless of subsequent physical change. This section evaluates both schools of thought and argues in favour of the charted low-water line for the following four reasons.

Absence of a Uniform Vertical Datum

First, the former school of thought assumes a universally agreed methodology for calculating the vertical datum of the low-water line. Yet, this assumption is unfounded. The origins of Article 5 can be traced to the 1930 Hague Conference for the Codification of International Law, where efforts were first made to unify the definition of the baseline 35 However, most States strongly disagreed on which tidal datum ought to constitute the low-water mark for baselines,36

31 Kapoor & Kerr (n 11) 31; Tanaka (n 18) 55; Purcell (n 11) 161; Robin Churchill, Vaughan Lowe and Amy Sander, The Law of the Sea (4th edn, Manchester University Press 2022) 58-59.

32 Purcell (n 11) 161.

33 ILA (n 11) 3.

34 Ibid.

35 Daniel O’Connell, The International Law of the Sea Vol. II (Clarendon Press 1984).

36 Shabtai Rosenne (ed), League of Nations Conference for the Codification of International Law Vol. II (Oceana Publications 1975) 253.

with the Preparatory Committee conceding that ‘various replies call attention to the different meanings which can be given to the expression ‘low-water’’.37

The extent of this divergence was articulated by the German delegation, which noted that:

‘[D]ifferent methods are employed in the existing marine charts of the various States to fix the ‘spring-tide low-water level’, which corresponds to the ‘low water mark’. A number of other criteria are also adopted by the various countries to determine the base line, e.g., ‘mean water’, the ‘line of mean low-water spring tides’, the ‘spring-tide low water line during the equinoxes’, the ‘low water level’ and the ‘mean sea level’’.38

This lack of uniformity undermines the assumption of a globally accepted tidal datum and poses serious challenges to the rule of law at sea by rendering the legal position of the normal baseline contingent on divergent and potentially fluctuating hydrographic practices.

Textual Emphasis on Charted Lines

Second, having established that the phrase ‘low-water line’ lacks an agreed definition, the phrase ‘as marked on large-scale charts’ in Article 5 UNCLOS further renders the physical ‘low-water line along the coast’ moving along with sea-level rise infeasible. The phrases ‘as marked on’ and ‘large-scale charts’ emphasise the visual depiction of the static ‘low-water line’ instead of the physical moving line.39

This is reinforced by Articles 16, 47, 75 and 85 of UNCLOS. Each provision requires the respective lines to be ‘shown on charts of a scale or scales adequate for ascertaining their position’,40 again prioritising the visual depiction of a static specified line on the chart. It must be presumed that the reference to large-scale charts in Article 5 carries the same conclusion, such that it cannot refer to the physical ‘low-water line along the coast’.

37 Ibid.

38 Ibid.

39 Churchill, Lowe & Sander (n 32) 58.

40 UNCLOS, Articles 16, 47, 75 and 85.

Legal Practice Prioritising Charts

Third, where the low-water line was found to be inaccurate, members of the International Law Commission (‘ILC’) concurred that it would be the chart and not the datum that would be susceptible to challenge. Amado observed that ‘if the low-water mark in official charts departed appreciably from the line of mean low-water spring tides, those charts would not be accurate and their validity would be questioned by any legal tribunal’.41 Similarly, Spiropoulos noted that ‘if the line drawn on an official chart differed to any great extent from the tide-line a protest could be made and the chart corrected’.42 Correcting the charts would be irrelevant if it were the datum and not the marked line that was decisive in locating the low-water line.

Principle of Effectiveness

Fourth, if Article 5 UNCLOS were to refer to the physical ‘low-water line’ rather than the charted line, it would be, as Tanaka observes, ‘unpractical to require coastal states to provide real-time notification of changing baselines’. 43 Churchill, Lowe and Sander support this argument, noting that reading the phrase ‘low-water line’ as the tidal datum contradicts the ut res principle of good faith interpretation by rendering the provision less effective:

‘Those who in practice will most want to know the location of the baseline are foreign mariners and fishers and the coastal State’s law enforcement officials … [t]he only way that foreign mariners and fishers can discover the location of the low-water line, and hence the baseline, is by consulting a chart. They cannot be expected to know where the low-water line is actually located if it is different from the line shown on the officially recognised chart.’44

Therefore, this section argues that the ‘low-water line’ in Article 5 UNCLOS refers to the charted line as marked on large-scale charts instead of the physical line as defined by a tidal datum. The absence of a universally accepted method for determining tidal datums, the

41 Yearbook of the ILC (1952) vol I, 172.

42 Yearbook of the ILC (1954) vol I, 65.

43 Tanaka (n 18) 55.

44 Churchill, Lowe & Sander (n 32) 58.

emphasis UNCLOS places on charted lines, the legal practice of challenging the charts, and the principle of effectiveness all support the legally certain charted low-water line.

As Marked On

No Positive Obligation to Update their Charts

The preceding discussion defining the low-water line significantly influences whether the normal baseline is ambulatory. Having established the preferred interpretation of the charted ‘low-water line’, it follows that, as Kapoor and Kerr argue, ‘once the normal baseline has been established and cartographically depicted on large scale charts it remains in place … whether or not the actual low water line has physically moved’.45

This is further supported by the absence of an obligation on States to update charts reflecting changes in the physical geography of the coast. As the ILC noted, there is ‘no evidence in practice or in sources of international law of an obligation on States to regularly update their nautical charts’ 46 depicting ‘basepoints, baselines or maritime boundaries ... once duly deposited with the Secretary-General’.47 To impose such an obligation, apart from being absent from the Convention,48 would require States to ‘dedicate significant resources for the purpose of regularly updating maritime charts or geographical data’ which they crucially lack.49

No Harm to Safety of Navigation

The strongest objection against States not updating their nautical charts is that it ‘could pose hazards to the safety of navigation as charts might not reflect physical reality, potentially in contravention of the relevant international instruments’.50 This lies in the function of nautical

45 Kapoor & Kerr (n 11) 31.

46 UNGA, ‘Report of the ILC’ (2023) UN Doc A/78/10, [216].

47 Ibid, [218].

48 UNGA, ‘Report of the ILC’ (n 47), [150].

49 Ibid, [216].

50 Ibid, [218]; International Convention for the Safety of Life at Sea (adopted 1 November 1974, entered into force 25 May 1980) 1184 UNTS 2.

charts to ensure navigational safety for vessels passing through the waters of a coastal State, which must be continually updated to ensure their credibility in response to coastline change.51

However, such an objection is significantly overstated as there exists ‘two different uses for nautical charts: for the safety of navigation, and for supplementary functions, such as indicating maritime zones.’52 As the ILC clarifies, the ‘updating of charts for the purposes of the safety navigation is separate from the updating of charts and lists of coordinates concerning baselines and maritime zones under the Convention and international law in relation to maritime zones’. 53 That is, nautical charts may be updated to protect navigational safety without compromising the charted low-water line and the position of the normal baseline.

Therefore, an interpretation of the terms of Article 5 UNCLOS reveals that the low-water line is the charted line as marked on large-scale charts which States are not obliged to update, without any impacts to the safety of navigation

Context of UNCLOS

Commentators advocating for an ambulatory reading of Article 5 UNCLOS frequently appeal to its contextual relationship with Article 7(2) UNCLOS on straight baselines, which states:

‘Where because of the presence of a delta and other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-water line and, notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal State in accordance with this Convention ’

This provision is typically relied on to support the view that baselines are ambulatory, unless explicitly stated otherwise in the Convention. Caron, for instance, argues that Article 7(2) UNCLOS expressly permits the fixing of straight baselines in the case of unstable coastlines, and that the absence of such language in Article 5 implies a default rule of ambulatory normal

51 Churchill, Lowe & Sander (n 32) 106.

52 ILC, ‘Sea-level Rise in Relation to International Law’ (2023) UN Doc. A/CN.4/761, [246].

53 Ibid, [248].

baselines.54 Alexander,55 Soons,56 and Rayfuse 57 have advanced similar arguments based on the negative implication of Article 7(2) UNCLOS, each contending that the silence of Article 5 UNCLOS evinces an intention that normal baselines may not be fixed.

However, the appeal to negative implication is structurally weak in this context. The assertion that what is not explicitly permitted is implicitly prohibited relies on an interpretive method UNCLOS does not sustain. The Convention frequently refrains from exhaustive codification as a ‘comprehensive constitution’ covering ‘every aspect of the uses and resources of the sea’.58

Article 7(2) UNCLOS addresses the specific problem of ‘a delta and other natural conditions’ that render the coastline ‘highly unstable’. It merely affirms that where the coasts are naturally unstable, a coastal State may fix their straight baselines to secure legal stability, without implying anything about Article 5 UNCLOS.

What Article 7(2) UNCLOS instead confirms is the broader tolerance for State discretion in determining its baselines, deferring to its authority to select ‘appropriate points’ and to maintain baselines ‘until changed by the coastal State’.59 This State discretion is similarly present in Article 5 UNCLOS defining the normal baseline as the ‘low-water line along the coast as marked on large-scale charts officially recognised by the coastal State’ [emphasis added], with no positive obligation to revise these charts.

On this view, the textual distinction between Article 5 and Article 7(2) UNCLOS is unsurprising considering the temporal context when UNCLOS was drafted in 1982. Article 7(2) UNCLOS was drafted to mitigate local instability for a category of naturally ‘highly unstable’ baselines which the drafters of UNCLOS were aware of. By contrast, they could not have anticipated unprecedented rates of climate change-induced sea-level rise and corollary

54 David Caron, ‘When Law Makes Climate Change Worse: Rethinking the Law of Baselines in Light of a Rising Sea Level’ (1990) 17 Ecology Law Quarterly 621, 634-36.

55 Lewis Alexander, ‘Baseline Delimitations and Maritime Boundaries’ (1983) 23 Va J Intl L 503, 535.

56 Alfred Soons, ‘The Effects of a Rising Sea Level on Maritime Limits and Boundaries’, (1990) 37(2) Netherlands International Law Review 207, 216-218.

57 Rosemary Rayfuse, 'International Law and Disappearing States - Maritime Zones and the Criteria for Statehood' (2011) 41 Environmental Policy and Law 281, 282.

58 Tommy Koh, ‘A Constitution for the Oceans’ (Statement at the Final Session of the Third United Nations Conference on the Law of the Sea, Montego Bay, 6-11 December 1982), xxxiii.

59 UNCLOS, Article 7(2).

systemic instability now threatening low-lying coastal States. The silence in Article 5 UNCLOS regarding the permissibility of fixing normal baselines is therefore a product of its structure and not evidence of its prohibition.

Accordingly, it does not follow from Article 7(2) UNCLOS that Article 5 UNCLOS prohibits States from fixing their normal baselines. On the contrary, it illustrates the Convention’s broader concern with maintaining baseline stability and affirms that a State must retain the discretion to determine its baselines in light of physical change.

Object and Purpose of UNCLOS

The final element within Article 31(1) VCLT requires the treaty to be interpreted in light of its object and purpose, which can be determined ‘taking account of the terms of the treaty in their context, in particular the title and preamble of the treaty’.60

In the preamble, the parties acknowledge the ‘historic significance of this Convention as an important contribution to the maintenance of peace, justice and progress for all peoples of the world’.61 The parties further recognise the ‘desirability of establishing … a legal order for the seas and oceans which will … promote the peaceful uses of the seas and oceans, [and] the equitable and efficient utilisation of their resources’.62 This sentiment is echoed by Tommy Koh as President of the Third United Nations Conference on the Law of the Sea, hailing the Convention as a ‘comprehensive constitution which will stand the test of time’, drafted to ‘promote the maintenance of international peace and security’.63

The underlying thread of the peaceful uses of the oceans presupposes legal stability in the delimitation of maritime zones. In its first issues paper and additional paper, the ILC Study Group made repeated references of the need to ensure legal stability, certainty and predictability in accordance with the Convention’s object and purpose. It concluded that the concept of legal stability was encapsulated in the Convention which contributed to international peace.

60 ILC, Guide to Practice on Reservations to Treaties (2011) UN Doc A/66/10, [3.1.5.1].

61 UNCLOS, Preamble.

62 UNCLOS, Preamble.

63 Koh (n 59).

Interpreting Article 5 UNCLOS to permit the fixing of normal baselines is thus consistent with the object and purpose of the Convention for two reasons. First, such stability is a structural prerequisite for States being able to always understand the respective rights and obligations they have in a maritime zone, each measured with reference to the normal baseline. An ambulatory interpretation of a State’s normal baselines, in contrast, creates legal uncertainty by rendering maritime entitlements perpetually indeterminate and ‘would likely be a source of conflict and instability for coastal neighbouring States’.64

Second, it further ensures the equitable distribution of and continued access to resources, consistent with the preambular commitment to the ‘equitable and efficient utilisation of [the ocean’s] resources’. This foundational object, far from being merely aspirational, finds concrete expression in the Convention’s operative provisions mandating that maritime delimitation must be effected ‘in order to achieve an equitable solution’.65 Interpreting Article 5 to permit the fixing of normal baselines thus safeguards this distributive justice by preventing the disproportionate erosion of maritime entitlements held by small island and low-lying States otherwise lost to the high seas.

Therefore, permitting States to fix their normal baselines under Article 5 is aligned with the object and purpose of promoting maritime peace and equity. It does so by increasing the stability of maritime entitlements and decreasing the propensity for inter-State disputes.

III. Article 31(3)(C) VCLT – Rules of International Law

Article 31(3) VCLT

Article 31(3) VCLT provides for three further avenues of treaty interpretation. However, the diversity of State practice in this area fails to meet the high threshold of ‘subsequent agreement between the parties’ 66 or ‘subsequent practice … which establishes the agreement of the parties’, 67 such that Articles 31(3)(a) and 31(3)(b) VCLT cannot be employed. This high

64 ILC, Report of the ILC on the Work of its Seventy-Second Session (2021) UN Doc A/76/10, [273].

65 UNCLOS, Articles 74 and 83.

66 VCLT, Article 31(3)(a).

67 VCLT, Article 31(3)(b).

threshold was confirmed in Whaling in the Antarctic, where the ICJ held that subsequent agreement was not met because ‘many IWC resolutions were adopted without the support of all State parties to the Convention’.68

Instead, this section will consider other ‘relevant rules of international law applicable in the relations between the parties’ under Article 31(3)(c) VCLT. As McLachlan explains:

‘The foundation of this principle is that treaties are themselves creatures of international law. However wide their subject matter, they are nevertheless limited in scope and are predicated for their existence and operation on being part of the international law system.’69

The ICJ recently affirmed this approach of systemic integration in Oil Platforms. 70 In that case, the Court interpreted the security interests exception to the Treaty of Amity between the United States and Iran against the backdrop of the custom of armed conflict, illustrating how ‘relevant rules of international law’ shape treaty interpretation.71

This section thus assesses the interpretation of Article 5 UNCLOS considering two relevant principles of international law. First, it addresses the ‘land dominates the sea’ principle and argues that it is neither absolute nor appropriately applied in the context of sea-level rise. Second, this section turns to the principle of stability of boundaries, which provides a positive normative basis for permitting the fixing of normal baselines under Article 5 UNCLOS.

Land Dominates the Sea

The strongest rule of international law relied on by scholars defending an ambulatory interpretation of Article 5 UNCLOS is the ‘land dominates the sea’ principle, where the ‘land is the legal source of the power which a State may exercise over territorial extensions to

68 Whaling in the Antarctic (Australia v Japan: New Zealand intervening) (Judgment) [2014] ICJ Rep 226, [83].

69 Campbell McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 International and Comparative Law Quarterly 279, 301.

70 Oil Platforms (Iran v United States of America) (Merits) [2003] ICJ Rep 161.

71 Ibid, [41].

seaward’. 72 This principle has since been extensively applied in maritime delimitation. For instance, the ICJ in Fisheries (United Kingdom v Norway) considered the ‘close dependence of the territorial sea upon the land domain’, reaffirming that ‘it is the land which confers upon the coastal State a right to the waters off its coast’.73 Similarly, in Qatar and Bahrain, the Court recalled that ‘in previous cases [it] has made clear that maritime rights derive from the coastal State’s sovereignty over the land’.74

On this view, a strict application of the ‘land dominates the sea’ principle supports an ambulatory interpretation of normal baselines moving with the physical ‘low-water line along the coast’. Conversely, permitting its fixing would seem incompatible as it would create a legal fiction where the charted line deviates significantly from the physical geography of the land. However, while the ‘land dominates the sea’ principle has been repeatedly affirmed in maritime delimitation jurisprudence, it must be emphasised that its application is not absolute.

The ICJ has consistently demonstrated caution in applying even well-established rules in an unqualified manner, particularly where considerations of pragmatism and equity are implicated.75 For instance, in Continental Shelf (Libyan Arab Jamahiriya / Malta), the Court declined to apply the codified principle of natural prolongation as a controlling factor in maritime delimitation. 76 Instead, it favoured an equitable approach that better reflected the respective rights of the coastal States over the continental shelf and EEZ. 77 The ICJ’s willingness to temper principle with equitable considerations reflects a broader trend that cautions against the rigid application of rules of international law.

This general tenor is equally evident within the ‘land dominates the sea’ principle. One notable exception to it is the permanence of continental shelf limits under Article 76(9) UNCLOS. Under normal circumstances, the continental shelf is measured ‘to a distance of 200 nautical

72 North Sea Continental Shelf Cases (Judgment) [1969] ICJ Rep 3, [96].

73 Fisheries Case (United Kingdom v Norway) (Judgment) [1951] ICJ Rep 116, 133.

74 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Merits) [2001] ICJ Rep 40, [185].

75 ILC, ‘Sea-Level Rise’ (n 53), [153].

76 Continental Shelf (Libyan Arab Jamahiriya / Malta) (Judgment) [1985] ICJ Rep 13, [33].

77 Ibid, [61] and [62].

miles from the baselines from which the breadth of the territorial sea is measured’.78 However, if the required conditions under Article 76 UNCLOS are met, a landward shift of the baseline would have no impact on the fixed boundaries of the continental shelf. As the ILC notes, this illustrates that ‘the principle that ‘the land dominates the sea’ is not absolute and, under certain circumstances, is not always applied’.79

At this juncture, this section has established both a general reluctance to apply legal principles in an unqualified manner and the existence of express exceptions to the ‘land dominates the sea’ principle. It therefore argues that permitting the fixing of normal baselines under Article 5 UNCLOS should be understood as a further exception justified on equitable grounds. As the ILC observes, the rigid application of the principle ‘would not provide a solution to the inequitable outcome of many States losing existing maritime entitlements because of sea-level rise’.

80 ‘The preservation of existing maritime boundaries and entitlements in the face of sealevel rise’, the ILC continues, could therefore be ‘considered to be an equitable principle and could operate as an exception to the principle that the ‘land dominates the sea’’.81

This argument is further supported by Nguyen who recognises the ‘land dominates the sea’ principle as the basis for maritime entitlements but posits that it ‘does not go against the maintenance of maritime baseline and limits’.82 Similarly, Soons dismisses the principle as a possible barrier to the preservation of existing maritime zones, noting that:

‘‘The land dominates the sea’ is a maxim, it is a summary of what some positive legal rules … currently provide. But circumstances can change, and so will the law; law is inherently adapting to the requirements of developments in society. So, if the

78 UNCLOS, Article 76(1).

79 ILC, ‘Sea-Level Rise’ (n 53), [154].

80 Ibid, [155(b)(i)].

81 Ibid, [155(a)].

82 Nguyen Hong Thao, ‘Sea-level rise and the law of the sea in the Western Pacific region’ (2020) 13(1) Journal of East Asia and International Law 139.

rules on baselines change, perhaps the maxim will in the future be worded differently.’83

Therefore, this section has demonstrated that the ‘land dominates the sea’ principle is a prevalent but not an absolute one, and that an interpretation of Article 5 UNCLOS permitting the fixing of normal baselines should similarly operate as an exception to the principle, instead of being read as a violation of it.

Permanence and Stability of Boundaries

Having proven that permitting the fixing of normal baselines is not barred by the ‘land dominates the sea’ principle, this section further argues that the interpretation is supported by the well-established principle of the permanence and stability of boundaries in international law. As established by the ICJ in Temple of Preah Vihear (Cambodia v Thailand):

‘In general, when two countries establish a frontier between them, one of the primary objects is to achieve stability and finality. This is impossible if the line so established can, at any moment, and on the basis of a continuously available process, be called in question … Such a frontier, so far from being stable, would be completely precarious.’84

Similarly, the ICJ reaffirmed its position in Territorial Dispute (Libyan Arab Jamahiriya / Chad), stating that ‘once agreed, the boundary stands, for any approach would vitiate the fundamental principle of the stability of boundaries, the importance of which has been repeatedly emphasised by the Court’ [emphasis added] 85 Boundaries are not confined to landbased delimitations. Oppenheim extends the definition more broadly to ‘the imaginary lines on the surface of the earth which separate the territory of one state from that of another … or from

83 Alfred Soons, ‘Remarks by Alfred Soons’ in Patrícia Galvão Teles, Nilüfer Oral et al, remarks on ‘Addressing the law of the sea challenges of sea-level rise’ (2020) 114 Proceedings of the American Society of International Law 392.

84 Case concerning the Temple of Preah Vihear (Cambodia v Thailand) (Merits) [1962] ICJ Rep 6, 34.

85 Territorial Dispute (Libyan Arab Jamahiriya / Chad) (Judgment) [1994] ICJ Rep 6, [72].

the open sea’.86 The principle has thus since been applied in the maritime context in Territorial and Maritime Dispute (Nicaragua v Colombia)87 and in Aegean Sea Continental Shelf. 88

While a State’s normal baselines are not themselves maritime boundaries, they serve as the reference point from which those boundaries are measured. 89 Accordingly, the stability of boundaries inherently depends on the stability of the normal baselines. Treating these as ambulatory under the orthodox interpretation of Article 5 UNCLOS causes maritime boundaries to shift with every natural fluctuation of the coastline. If the principle of the permanence and stability of boundaries is to have operative force in the maritime context, it must necessarily extend to permit the fixing of normal baselines under Article 5 UNCLOS.

The impact of permitting States to fix their normal baselines on their maritime boundaries has practical impacts beyond arbitrary lines ‘as marked on large-scale charts’.90 Nesi writes that ‘the term ‘boundary’ means a line that determines the extension of a state’s territorial sovereignty’, demarcating the ‘extreme limits of spatial validity of the legal norms of a State’.91 Put differently, the stability of maritime boundaries is crucial as it ‘defines the limits of national jurisdiction and the important legal consequences deriving from this fact’.92

Therefore, this section has advanced two arguments on the interpretation of Article 5 UNCLOS. First, the ‘land dominates the sea’ principle is not rigidly applied. International law admits equitable exceptions to the principle, which should similarly extend to the fixing of normal baselines. Second, permitting States to do so is supported by the principle of the stability of boundaries since maritime boundaries are necessarily defined by reference to those baselines.

86 Robert Jennings and Arthur Watts (eds), Oppenheim’s International Law, 9th edn, vol 1, Peace (Longman 1992) 661, [226].

87 Territorial and Maritime Dispute (Nicaragua v Colombia) (Preliminary Objections) [2007] ICJ Rep 832, 861 [89].

88 Aegean Sea Continental Shelf (Greece v Turkey) (Judgment) [1978] ICJ Rep 3, 35-36 [85].

89 UNCLOS, Articles 3, 33(2), 57 and 76(1).

90 UNCLOS, Article 5.

91 Giuseppe Nesi, ‘Boundaries’ in Marcelo G Kohen and Mamadou Hébié (eds), Research Handbook on Territorial Disputes in International Law (Edward Elgar 2018) 197.

92 Ibid, 201.

Read together, this section demonstrates that interpreting Article 5 UNCLOS as permitting the fixing of normal baselines is supported by ‘other relevant rules of international law’.93

IV. Article 32 VCLT – State Practice

State Practice as Supplementary Means of Interpretation

The preceding sections applied Article 31 VCLT to argue that Article 5 UNCLOS permits States to fix their normal baselines. To ‘confirm the meaning resulting from the application of Article 31’, 94 this section turns to Article 32 VCLT to introduce supplementary means of interpretation. Although not explicitly stated in Article 32, the ILC clarifies that ‘subsequent practice in the application of the treaty’ can be used as a ‘supplementary means of interpretation’.95 Crucially, the threshold for employing State practice under Article 32 is lower than that required under Article 31(3)(b), merely requiring the ‘conduct by one or more parties’96 instead of establishing the ‘subsequent agreement of the parties’.97

This interpretive approach has been affirmed by the International Tribunal for the Law of the Sea (‘ITLOS’) in its recent Advisory Opinion on Climate Change 98 There, the Tribunal interpreted the term ‘maritime environment’ in UNCLOS starting with the ordinary meaning of the term. Its interpretation was then supported ‘by the context in which the terms is used in the Convention, in light of its object and purpose, [and] by the relevant subsequent practice of the States Parties to the Convention regarding its interpretation’.99 Guided by this framework, this section shall examine State practice relevant to the interpretation of Article 5 UNCLOS in two stages: first, the practice of regional bodies; and second, the practice of individual States.

Collective Declarations by Regional Bodies

93 VCLT, Article 31(3)(c).

94 VCLT, Article 32.

95 ILC, ‘Draft Conclusions on Subsequent Agreements and Subsequent Practice in relation to the Interpretation of Treaties, with Commentaries’ UN Doc. A/73/10, Conclusion 2(4).

96 Ibid, Conclusion 4(3).

97 VCLT, Article 31(3)(b).

98 ITLOS, AO on the Protection of the Marine Environment from Anthropogenic Activities Effects of Climate Change (9 February 2024) ITLOS Reports 2024.

99 Ibid, [166].

Two significant regional bodies have issued formal declarations to fix their normal baselines: the Pacific Islands Forum (PIF) and the Alliance of Small Island States (AOSIS). While their memberships overlap substantially,100 their combined total stands at 43 of the most vulnerable coastal States to sea-level rise, representing approximately 25% of all parties to UNCLOS.

In 2021, the PIF issued a ‘Declaration on Preserving Maritime Zones in the Face of Climate Change-Related Sea-Level Rise’. The Declaration recognises the principles of ‘legal stability, security, certainty and predictability that underpin the Convention and the relevance of these principles to the interpretation and application of the Convention’.101 Crucially, the PIF leaders affirm that the Convention imposes ‘no affirmative obligation to keep baselines … under review nor to update charts’ once deposited.102 Accordingly, they declare that they have no intention of updating their charts and further proclaim that their ‘maritime zones … and the rights and entitlements that flow from them, shall continue to apply, without reduction, notwithstanding any physical changes connected to sea-level rise’.103

This position was subsequently reaffirmed by AOSIS through its ‘Declaration of its Heads of State and Government-. Antigua and Barbuda, in their statement on behalf of the AOSIS, have confirmed that the Declaration reflects the Alliance’s ‘interpretation of a lack of an obligation under [the Convention] to review or update the baselines … once deposited’ and ‘of the practice of many [small island developing States]’104 to adopt this approach.

Read together, these regional statements of 43 States in the PIF and AOSIS support two interconnected points of law. First, they confirm the absence of an obligation for States to update their charts on which their normal baselines are marked on. Second, in light of this lack of an obligation, they have adopted the practice of not updating their charts, effectively fixing

100 The Pacific Islands Forum is a regional organisation comprising 18 members, see https://www.forumsec.org/2021/08/11/declaration-on-preserving-maritime-zones-in-the-face-of-climate-changerelated-sea-level-rise/; the AOSIS is a regional organisation comprising 39 members, see https://www.aosis.org/launch-of-the-alliance-of-small-island-states-leaders-declaration/

101 ‘Declaration on Preserving Maritime Zones in the Face of Climate Change-Related Sea-Level Rise’ (Pacific Islands Forum, 2021), 1.

102 Ibid, 2.

103 Ibid.

104 Statement of Antigua and Barbuda (on behalf of AOSIS), UNGA Sixth Committee (76th Session) (28 October 2021), UN Doc A/C.6/76/SR.19, [78].

their normal baseline despite subsequent physical changes. These declarations have been further endorsed by 2 regional bodies. While the composition of the following groups is similarly not mutually exclusive, they total to 47 other States of the Climate Vulnerable Forum105 and 18 more from the Organisation of African, Caribbean and Pacific States.106

These endorsements suffice as subsequent practice under Article 32 VCLT. According to the ILC, identifying such practice under Article 31(3) requires determining ‘whether the parties … have taken a position regarding the interpretation of the treaty’.107 The ILC further confirms that the same considerations apply under Article 32. 108 Therefore, the broader regional endorsements reflect their ‘[taking] a position regarding the interpretation of the treaty’,109 which suffices as further subsequent practice.

Individual States

Comments made by individual States and their domestic legislation can be further introduced as subsequent practice under Article 32 VCLT as they amount to ‘conduct of a party in the application of a treaty … in the exercise of its executive, legislative [or] judicial’ functions.110

Comments Made by Individual States

An analysis of the statements made by States to the ILC and in the UN General Assembly reveals three themes. First, States have affirmed the importance of UNCLOS as ‘a common set of rules’111 emphasising the preservation of rights and obligations of Sates in their maritime zones. States should therefore continue ‘to maximise the stability and clarity that the

105 Comprising 58 members: 27 members from Africa and the Middle East, 20 members from Asia and the Pacific and 11 members from Latin America and the Caribbean. For further information, see https://thecvf.org/members/.; See https://thecvf.org/our-voice/statements/dhaka-glasgow-declaration-of-the-cvf/.

106 Comprising 79 members from Africa, the Caribbean and the Pacific. For further information, see https://www.oacps.org/.; See https://www.oacps.org/wp-content/uploads/2022/05/Declaration_7thMMFA_EN.pdf, 8.

107 ILC, ‘Draft Conclusions’ (n 96), Conclusion 6(1).

108 Ibid, Conclusion 6, Commentary [24].

109 Ibid, Conclusion 6(1).

110 Ibid, Conclusion 5(1).

111 Statement of Norway, UNGA Sixth Committee (74th Session) (31 October 2019), UN Doc A/C.6/74/SR.27, [87].

Convention brought to oceans governance and maritime jurisdiction’, 112 reinforcing the centrality of UNCLOS to ‘preserve its integrity and stability provided by its rules’.113

Second, States have begun to refer more directly to stability in connection with maritime zones. 14 States in the UN General Assembly have explicitly used the term ‘legal stability’ in connection with maritime zones.114 Among these States, three have expressly turned to the meaning of ‘legal stability’, with Chile115 and Papua New Guinea116 agreeing that the term referred to the ‘need to preserve the baselines and outer limits of maritime zones’.

Third, these States’ comments have illuminated different dimensions of legal stability in connection with maritime zones. The Solomon Islands, for instance, have explained that they intend not to update their charts such that their maritime ‘zones were fixed and should not be altered, despite sea-level rise’.117 Similarly, the Maldives expressed the view that ‘once a State deposited the appropriate charts and/or geographic coordinates with the Secretary-General, those entitlements [would remain] fixed and would not be altered by any subsequent physical changes to the State’s geography as a result of sea-level rise’.118

Domestic Legislation

Anggadi’s extensive survey of all the legislation of coastal States revealed that nearly all of it can be categorised into 3 main types, defining the normal baseline as:119

112 Statement of Australia, UNGA Sixth Committee (73rd Session) (24 October 2018) UN Doc A/C.6/73/SR.23, [76].

113 Statement of Lebanon, UNGA Sixth Committee (76th Session) (1 November 2021) UN Doc A/C.6/76/SR.22, [133].

114 Antigua and Barbuda (on behalf of AOSIS), Sierra Leone, Israel, Chile, Vietnam, Czechia, New Zealand, Estonia, Papua New Guinea, Australia, Spain, Tuvalu, Costa Rica, Philippines: UNGA Sixth Committee (76th Session) (26 October to 2 November 2021).

115 Statement of Chile, UNGA Sixth Committee (76th Session) (29 October 2021) UN Doc A/C.6/76/SR.21 [55].

116 Statement of Papua New Guinea, UNGA Sixth Committee (76th Session) (1 November 2021) UN Doc A/C.6/76/SR.22 [35].

117 Statement of the Solomon Islands, Summary Record of the 13th Meeting, UNGA Sixth Committee (75th Session) (5 November 2020) UN Doc A/C.6/75/SR.13, [74].

118 Statement of the Maldives, UNGA Sixth Committee (75th Session) (5 November 2020) UN Doc A/C.6/75/SR.13, [57].

119 Frances Anggadi, ‘What States Say and Do About Legal Stability and Maritime Zones, and Why It Matters’ (2022) 71 International and Comparative Law Quarterly 767, 788.

(a) Type 1: the low-water line (along the coast);

(b) Type 2: located by reference to coordinates; and

(c) Type 3: the low-water line as marked on charts.

This survey illustrates the foregoing debate about whether the ‘low-water line’120 refers to the physical low-water line or the charted line.121 Type 1 legislation defines the normal baseline only by reference to the low-water line along the coast, supporting the characterisation of the low-water line as a physical line. Conversely, Type 2 and 3 legislation subscribe to the latter school of thought that the normal baseline is the charted line, whether reflected by reference to coordinates or as marked on large-scale charts.

43 States party to UNCLOS define the normal baseline in their domestic legislation as the physical low-water line along its coast, without referencing any charts.122 For example, the legislation of Honduras defines its normal baseline as the ‘low-water line along the coast’,123 with the legislation of Guinea similarly stating that its ‘baselines are comprised of the lowwater mark’.124 Nevertheless, the presence of States defining the low-water line as the physical line does not count against the State practice of States depicting it as the charted line.

This article submits an interpretation of Article 5 UNCLOS permitting States to fix their baselines but does not go so far as to mandate States to do so. That is, domestic legislation adhering to the physical low-water line does not exclude the permissibility of defining it as depicted on large-scale charts, nor is it indicative of an obligation of adhering to the physical low-water line. Furthermore, State practice is employed as supplementary means of

120 UNCLOS, Article 5.

121 ILA (n 11) 3.

122 Australia, Barbados, Belize, Bulgaria, Cameroon, Canada, Cote d’Ivoire, Djibouti, Equatorial Guinea, Gambia, Georgia, Germany, Greece, Grenada, Guatemala, Guinea, Haiti, Honduras, Ireland, Kenya, Kuwait, Lebanon, Madagascar, Mauritania, Monaco, Namibia, New Zealand, Nicaragua, Nigeria, Poland, Romania, Senegal, Slovenia, Somalia, South Africa, Spain, Sri Lanka, Saint Kitts and Nevis, Saint Lucia, Sweden, Tonga, Tunisia, Ukraine.

123 Act on Honduran Maritime Areas 1999 (Honduras) Article 3.

124 Decree No. D/2015/122/PRG/SGG (Guinea) Article 7.

interpretation under Article 32 VCLT, which has a much lower bar than establishing ‘the agreement of the parties regarding its interpretation’ under Article 31(3)(b) VCLT.

Instead, the use of the charted low-water line is practised by 56 other States (Type 2 and 3).125 For example, the legislation of Brazil defines its normal baseline as ‘‘the low-water lines as indicated in the large-scale nautical charts published by the Directorate of Hydrography and Navigation of the Brazilian Navy’. 126 A similar approach is also taken in the legislation of Angola,127 Argentina,128 Bangladesh,129 and India.130

Many other examples employ language which closely mirrors the elements of Article 5 UNCLOS. Some, like the Republic of Korea, closely replicate that wording, stating that the ‘normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognised by the Republic of Korea’.131 Others refer to charts in the context of specifying the ‘low-water line’. For example, after stating that the territorial sea shall be measured from the low-water line along the coast, the legislation of the Netherlands defines the phrase ‘low-water line’ as ‘the line indicating the depth of 0 metres on the large-scale Dutch sea charts issued upon the instructions of the Minister of Defence’.132

Evaluating the State Practice

Read together, examining domestic legislation reveals that a significant number of States adhere to an understanding of the ‘low-water line’ in Article 5 UNCLOS as the charted line,

125 Angola, Argentina, Bangladesh, Belgium, Benin, Brazil, Canada, Congo, Cook Islands, Costa Rica, Croatia, Democratic Republic of Congo, Denmark, Estonia, Fiji, France, Gabon, Ghana, Guyana, Iceland, India, Indonesia, Italy, Japan, Kiribati, Liberia, Lithuania, Malaysia, Marshall Islands, Mauritius, Mexico, Micronesia, Mozambique, Nauru, Netherlands, Niue, Palau, Portugal, Republic of Korea, Russian Federation, Samoa, Saudi Arabia, Seychelles, Sierra Leone, Solomon Islands, State of Palestine, Sudan, Suriname, Tanzania, Timor-Leste, Togo, Tuvalu, Ukraine, Uruguay, Vanuatu, Yemen.

126 Decree No 8.400 (4 February 2015) (Brazil) Article 2.

127 Law No. 17/14 defining the Baselines for the Delimitation of Maritime Zones of Angola (Angola).

128 Act No. 23.968 of 14 August 1991 (Argentina) Article 1.

129 Ministry of Foreign Affairs, Notification of 4 November 2015 (Bangladesh).

130 Notification of the Government of India, 11 May 2009 (India).

131 Territorial Sea and Contiguous Zone Act Promulgated on 31 December 1977 (Republic of Korea), Section 2(1).

132 Netherlands Territorial Sea (Demarcation) Act of 9 January 1985 (Netherlands), Section 1(2).

whether marked through coordinates or on large-scale charts. Regional declarations and comments by individual States further reflect that once the charted low-water line has been established, the normal baseline may remain in place in the absence of an affirmative obligation to update them. This extensive State practice thus ‘confirm(s) the meaning resulting from the application of Article 31’133 VCLT that the ‘low-water line’ is the charted line as marked on large-scale charts which States need not update.

The weight of subsequent practice as a supplementary means of interpretation under Article 32 VCLT depends on its clarity, specificity, and repetition, 134 which this examination of State practice has satisfied. In addition, the ILC has confirmed that no State has objected to the fixing of normal baselines, which constitutes further ‘acceptance of the subsequent practice when the circumstances call for some reaction’. 135 Therefore, the widespread and extensive State practice is highly persuasive as a supplementary means of interpretation to confirm the interpretation of Article 5 UNCLOS permitting States to fix their normal baselines.

V. Conclusion

In conclusion, climate change and sea-level rise pose an unprecedented threat to the legal architecture of the law of the sea. At the heart of this challenge lies Article 5 UNCLOS and its role in defining the normal baseline and delimiting the maritime zones from which they are measured. As Section I outlined, the orthodox interpretation of this provision, long treated as uncontroversial, now erodes the legal certainty that it was meant to uphold. It creates unacceptable legal instability that forces low-lying coastal and small island States to shoulder disproportionate costs in territory, resources, and sovereign control.

This article has argued that this tension is not a legal inevitability. Section II applied the crucible approach to treaty interpretation, examining the ordinary meaning of the terms used in Article 5 UNCLOS, read in context of surrounding provisions, and in light of the object and purpose of the Convention. It suggests that the normal baseline refers to the line charted on officially recognised maps, which States are not obliged to update. Section III reinforced this

133 VCLT, Article 32.

134 ILC, ‘Draft Conclusions’ (n 95), Conclusion 9.

135 ILC, ‘Draft Conclusions’ (n 95), Conclusion 10(2).

interpretation by reference to the principle of the stability of boundaries and the qualified nature of the ‘land dominates the sea’ principle. Section IV further confirmed this interpretation through Article 32 VCLT by highlighting widespread and unopposed State practice that supports an emerging consensus in favour of permitting States to fix their normal baselines.

An interpretation of Article 5 UNCLOS permitting States to fix their normal baselines is therefore both doctrinally defensible and institutionally necessary. As rising seas displace the physical features on which maritime entitlements are drawn, legal certainty in the law of the sea must be anchored in something more stable than shifting sands. At a time when physical geography is in flux, legal geography must know where to draw the line.

IDENTIFYING AND NAVIGATING THE CONSTITUTIONAL PENUMBRA OF FUNDAMENTAL LIBERTIES IN SINGAPORE

Isaac Tan Kah Hoe, Bonnie Yeo Lu-Anne*

Introduction

This article explores how fundamental liberties guaranteed under the Singapore Constitution can be interpreted more substantively by considering constitutional interpretation in the US and UK jurisdictions and their applicability in the local context. Chapter I seeks to outline the general characteristics of Singapore’s approach to judicial review. Chapter II will consider the principle of separation of powers as a more fluid concept derived from constitutional interpretation. We submit that since the specific scope of legislative power is not substantively laid down within the Constitution, there exists a constitutional penumbra that requires greater articulation through interpretation. This constitutional penumbra provides space for the judiciary to adopt a stronger interpretation of rights without unconstitutionally infringing on legislative power. Chapter III analyses the interpretation of Articles 9, 12 and 14 of the Singapore Constitution through a comparative lens, and attempts to identify the extent to which more substantive interpretations may be adopted without compromising the Singapore-specific principles identified in Chapters II and III.

I. Characteristics of judicial review in Singapore

1. Constitutional supremacy

Singapore possesses a written Constitution which is constitutionally supreme. This principle has been instrumental in shaping the development of the law in Singapore, especially in its increasing willingness to adopt alternative legal reasoning from that of the UK. In addition to providing rules that govern state institutions and their relationships with people, the Singapore Constitution contains fundamental liberties which list what would be commonly understood as

* Both authors are from the University of Oxford, BA (Jurisprudence) Class of 2027

fundamental human rights1. It is on this basis that this article seeks to examine if the document of the Singapore Constitution provides sufficient legal protection for those rights.

Similar to Singapore the US has a written Constitution which outlines the roles and composition of state institutions and contains the Bill of Rights that seeks to ensure certain fundamental rights for citizens. The US is constitutionally supreme, with courts being able to strike down the laws of the legislature if they violate a right enshrined in the Constitution.

Unlike the US and Singapore, there is no existing legal document that can be called the UK Constitution. However, as Nick Barber points out, a constitution need not be codified to exist; There are a series of rules that govern the relationships between state institutions and individuals which can be considered forming part of a constitution2. Therefore, although there is no written legal document singularly called the UK Constitution, there are many written sources that can form the constitution of the UK. Barber identifies these written sources as legislation, the common law and political conventions that appear in written form in legislation3 In addition to the written aspects of the UK constitution, the UK constitution is predicated on several unwritten fundamental rules. One of the most fundamental rules is the principle of parliamentary sovereignty, which as Albert Venn Dicey put, refers to “the unlimited legal capacity of Parliament to pass any law it chose”4 .

2. Autochthony

Relatedly, Singapore’s shift towards an autochthonous legal system gained traction in the late 1980s. In 1993, appeals to the Privy Council were officially abolished5. The Court of Appeal consisting of the Chief Justice and the two Justices of Appeal would be Singapore’s highest court6. The Practice Statement on Judicial Precedent was released on 11 July 1994, reasoning that Singapore’s development of the law should reflect the social, economic, and political

1 Constitution of the Republic of Singapore 1965, Art 9-16

2 NW Barber, The United Kingdom Constitution: An Introduction (Oxford University Press, 2021) 10

3 NW Barber, The United Kingdom Constitution: An Introduction (Oxford University Press, 2021) 11, 12

4 AV Dicey, Introduction to the Law of the Constitution (London: Macmillan, 1885)

5 Thio Li-ann, A Treatise on Singapore Constitutional Law (Academy Publishing, 2012) 144

6 Ibid

changes since Singapore’s independence and the underlying virtues of Singapore society7. This shift was further catalyzed by the UK’s increasing ties with the European Union, with British courts facing pressure to bring their human rights standard in line with the European Court of Human Rights in Strasbourg8. For instance, the development of the doctrine of proportionality in cases like Leech 9 , which sought to implement a more aggressive form of Wednesbury unreasonableness to ensure British courts were moving in tandem with Strasbourg rulings. Even after the UK left the EU, the domestic Human Rights Act 1998 sought to maintain the domestic application of human rights provisions under the European Convention of Human Rights through statutory interpretation10 and the declaration of incompatibility11

This stands in stark contrast to Singapore, which has a written Constitution containing fundamental liberties. Chuan Limin observes that the Constitution acts as the focus of judicial review, instead of other sources like common law and Parliamentary intent 12 . Singapore’s culturally-relativistic approach explains its rejection of a wholesale application of the UK’s developing common law, such as the proportionality approach to judicial review.

3. Green light approach

We now examine the green-light approach taken by Singapore courts, their relative deference to political branches, and their justified willingness to differ from other jurisdictions which adopt a more red-light approach.

Carol Harlow and Richard Rawlings highlight the differences between the red-light and greenlight approach to judicial review13. Red-light connotes the idea of a more adversarial approach between courts and political decision-making branches, while green-light connotes an idea of allowing internal checks within the political branches before judicial intervention, viewing a

7 Ibid

8 Ibid 581

9 R v Secretary of State for the Home Department, Ex parte Leech [1994] QB 198

10 Human Rights Act 1988, s3

11 Ibid, s4

12 Chuan Limin, ‘Autochony and Conformity in Singapore Administrative Law’ (2023) 35 SAcLJ 1, 19

13 Carol Harlow & Richard Rawlings, Law and Administration (Cambridge University Press, 3rd Ed, 2009)

strong government as a positive. Singapore adopts a more green-light approach to judicial review14 .

In the case of Hong Kong, Gordon KC observes that the courts have taken a red-light approach to judicial review despite similarities with Singapore - both have a Constitution, known as the Basic Law in Hong Kong, and both were former British colonies15. However, he observes that the defensive approach adopted by the courts in Hong Kong are due to tensions with the mainland government.

The courts in the US have taken on a red-light approach to judicial review as well, with the courts being an active battleground for rights activists and laypeople. Just this year, the Supreme Court has been called to decide on the constitutionality of minimum age requirements for access to pornographic websites16 and mandatory curricula concerning LGBTQ+ issues in schools17. Although much of this may be attributed to a greater willingness to litigate, the US Supreme Court has also been increasingly seen as too political, negatively affecting public confidence. This followed the 2022 decision to overturn Roe v Wade leading to state bans on abortion18 . In 2024, the court declared that a government official’s exertion of pressure on regulated entities to disassociate from the National Rifle Association violated their right to free speech, in particular pro-gun advocacy19 .

For the case of the UK, it is difficult to assess whether the courts are squarely red-light or greenlight in their approach to judicial review. Positions vary greatly across time. Carol Harlow and Richard Rawlings view the HRA 1998 as a “more inventive form of judicial review”, alongside more demanding standards developed by the European Court of Human Rights. They argue that cases like Burmah Oil, Bromley, and Jackson trace out the continual political sparring between courts and the political branches. In the recent case of Jackson, the courts remarked

14 Chan Sek Keong, ‘Judicial Review - From Angst to Empathy’ (2010) 22 SAcLJ 469, 475

15 Richard Gordon, “JUDICIAL REVIEW ACROSS THE COMMON LAW WORLD – SOME LESSONS FROM A COMPARATIVE SURVEY” (Brick Court Chambers) 6

16 Free Speech Coalition, Inc. v. Paxton, 606 U.S. (2025)

17 Mahmoud v Taylor, 606 U.S. (2025)

18 Quinnipiac Poll (18 May 2022)

19 National Rife Association of America v Vullo, 602 U.S. (2024)

obiter that the rule of law has become a governing principle of the constitution, citing views that this could supplant parliamentary sovereignty, especially if parliament decides to “do the unthinkable”. In the controversial Brexit cases, Miller I20 and Miller II21, the court ruled on the political issue of Brexit also signifies a limit to the court’s deference to political branches.

Commenting extra-judicially, Lord Sumption noted that Miller II had been a case where courts “moved the boundaries” in reaction to “a particularly disgraceful constitutional abuse”22. There has indeed been increasing perceptions of the ineffectiveness of the political constitution - the convention of ministerial responsibility has been criticised by Michael Gordon as becoming “ministerial irresponsibility” 23 , while Parliamentary oversight committees, although being effective at targeting individuals, frequently fail to rectify larger policy failings.24

As seen from the examples above, the reasons why courts take on a red-light approach to judicial review are specific to their political context, none of which can be mapped onto Singapore’s current political state. Jolene Lin argues that as compared to the UK executive which developed as a parasite to monarchical power, the administrative state in Singapore was created in the aftermath of sudden expulsion from the Federation of Malaysia, motivated by benevolent aims for all citizens.25

In Nagaenthran, the court noted that the green-light approach was the “most accurate reflection of the socio-political attitude” in Singapore, signalling the non-applicability of the Anisminic principle which would result in a wide conception of justiciable errors of law26. Chuan Limin observes that the courts, in adopting a stronger green-light approach, have shown notable willingness to differ from the English courts, reflecting sensitivity to the local context.27 Chuan

20 R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5

21 R (Miller) v Prime Minister [2019] UKSC 41

22 Unknown Author, ‘Lord Sumption: Judiciary stepped in to curtail Johnson’s ‘disgraceful constitutional abuse’’ (Scottish Legal News, 26 September 2019) <https://www.scottishlegal.com/articles/lord-sumption-judiciarystepped-in-to-curtail-johnson-s-disgraceful-constitutional-abuse> accessed 21 July 2025

23 Michael Gordon, ‘Ministerial irresponsibility in the UK Government: constitutional accountability after Theresa May and Boris Johnson’ (2024) PL 414

24 Ibid

25 Jolene Lin, The judicialization of governance: The case of Singapore (Routledge, 1st ed., 2008)

26 Nagaenthran a/l K Dharmalingam v Attorney-General [2018] SGHC 112 [123]

27 Chuan Limin, Autochthony and Conformity in Singapore Administrative Law (2023) 35 SAcLJ 1, 24-25

Limin characterises the Singaporean administrative review as giving “primacy to efficiency tempered by fairness”, highlighting the values of “efficient government” and “polycentrism” which underscore judicial deference 28 . Thio Li-ann describes the Singapore model as “communitarianism” and prioritising “statist imperatives” over “civil liberties”29. These factors will be taken into account in the following segments, where we will assess more substantive interpretations of fundamental liberties in the UK and US and its applicability in the Singapore context.

We submit that one should not be quick to dismiss this belief in honorable governance as a weakness of the legal system in Singapore. Gordon KC shows support for Chan CJ’s argument that Singapore rightfully adopts a green-light approach to judicial review. In Jeyaretnam, the court advised caution in moving towards a more red-light approach, noting the risk of disrupting political branches through “vexatious claims”30 .

II.

Identifying a constitutional penumbra surrounding the separation of powers

In this Chapter, we submit that while the separation of powers has been invoked in Singapore to prevent the intrusion of the courts into legislative power, the origins of the doctrine in countries like the US come from the recognised need to prevent arbitrary government and ensure independence of the judiciary from the political branches. We further submit that this has led to different constitutional interpretations of the separation of powers as compared to the UK and the US.

1. The separation of powers as a constitutional penumbra

HLA Hart, one of the most influential legal theorists of the 20th century, recognises that “all rules have a penumbra of uncertainty where the judge must choose between alternatives”.31 Hart observes that something as mundane as the Wills Act may be difficult to apply in certain factual scenarios, for instance if the testator wrote his initials only or if he used a pseudonym.32

28 Chuan Limin, Autochthony and Conformity in Singapore Administrative Law (2023) 35 SAcLJ 1, 26

29 Chuan Limin, Autochthony and Conformity in Singapore Administrative Law (2023) 35 SAcLJ 1, 29

30 Jeyaretnam Kenneth Andrew v Attorney-General [2013] 1 SLR 619 [55]

31 HLA Hart, The Concept of Law (Oxford University Press, 3rd ed, 2012) 12

32 Ibid 12, 13

The concept goes far back, with the Roman writer Pomponius in 2nd century AD referring to ‘unwritten law that consists in interpretation’.33

We submit that the constitutions of Singapore and the US, and even more so the unwritten constitution of the UK, provide little substantive guidance in delineating the scope of power of each branch. We submit that there is a penumbra in the interpretation of the separation of powers from the constitution. This will be the subject of the present Chapter. In Chapter III, we will observe how this translates to a constitutional penumbra in the court’s adjudication of rights, since courts can choose to adopt weaker or stronger standards of judicial review whilst staying within their constitutional scope of powers.

2. The separation of powers in Singapore

The court has invoked the separation of powers as a concept derived from the Constitution. We submit that the structure of the Singapore Constitution, similar to that of the US, does offer a firm basis for the separation of powers. As noted by the court in Xu Yuanchen34 the separation of powers is inherent in the Constitution35. Article 38 of the Constitution vests legislative power in the Legislature, comprising the President and Parliament, while Article 23(1) vests executive power in the President which is in practice exercised by the Cabinet36 . The courts exercise judicial power as set out in Article 9337 .

The wording of Articles 38, 23 and 93 in the Singapore Constitution provides only an outline of the scope of powers of each branch with little in the way of substantive guidance. Article 38 refers plainly to “legislative power” and Article 93 refers plainly to “judicial power”. Article 23 goes slightly further to subject “executive authority” to the provisions of the Constitution, yet this does not provide much assistance. As such, the interpretation of the separation of powers from these 3 articles has been largely left to the courts. Thankfully, a more practical

33 Honore, The Necessary Connection Between Law and Morality (Oxford University Press, 2002)

34 Xu Yuanchen v Public Prosecutor [2023] SGHC 123

35 Ibid [84]

36 Ibid

37 Ibid

explanation of the separation of powers is laid down in broad terms by the court in Tan Seet Eng38:

…the Legislature has the power to make the laws of our land…

…The Executive has the power…of governing the country within the framework of the laws established by the Legislature…

…the Judiciary has the responsibility for the adjudication of controversies which carries with it the power to pronounce authoritatively and conclusively on the meaning of the Constitution and all other laws…

Nonetheless, such an explanation fails to provide a complete solution to the complex interplay between the 3 branches of government. Invariably, the courts are tasked with deciding which matters fall under the jurisdiction of the courts and which fall under the purview of the political branches. We submit that there is a constitutional penumbra here, as the laws surrounding the scope of judicial and legislative power are especially vague. Hart observes that if uncertainty may break out in humble spheres of private law, this would be all the more so in the case of the constitution which uses far less precise wording.39

In practice, the concept of constitutional penumbras has not received much attention in court, with the interference by the judiciary in legislative matters taken to be an almost-certain violation of the separation of powers. In Ong Ah Chuan 40 , the Privy Council noted that decisions on the appropriateness of punishments for different classes of individuals would be unconstitutional 41 . The court reasoned that based on the separation of powers under the Singapore Constitution, such matters involve social policy and are for the legislature, not the

38 Tan Seet Eng v Attorney General & anor [2015] SGHC 18, [2016] 1 SLR 779 [90]

39 Hart (n 31) 13

40 Ong Ah Chuan & Anor v Public Prosecutor [1980] SGPC 6, [1979-1980] SLR(R) 710

41 Ibid 721, 722

judiciary, to decide42. In Lim Meng Suang43, the court reasoned that it “cannot - and must notassume legislative functions which are necessarily beyond its remit” and “to do so would be to efface the very separation of powers which confers upon the courts its legitimacy in the first place” 44 . Nonetheless, the court has expressed caution against deference in judicial review cases that question the constitutionality of legislation or executive power.45 We submit that the question of “constitutionality” is problematic given the existence of constitutional penumbras, and these questions inevitably require the courts to decide on moral issues. The issue of constitutional penumbras and where to draw the line between judicial and political spheres of power should receive greater attention, even if this requires confronting issues of morality. Tan Seow Hon emphasises that the continued debate on the content of absolute values assumed by our Constitution are worthy steps towards increased vigilance on the parts of the legislature and the judiciary. In Chapter III, we will explore the possibility of minimising the need for judges to adopt their own subjective moral reasoning, even if they were to address intrinsically moral issues in court.

3. The origin of the separation of powers and its intended role in the US

In the US, the separation of powers are governed by Articles I, II and III of the US Constitution46. However, quite apart from the Singaporean context, the separation of powers was adopted as part of the structure of the US constitution as a means to curb excessive concentration of power in the government. As mentioned by James Madison in the Federalist 51 47 , the separation of powers is “the great security against a gradual concentration of the several powers in the same department”. Montesquieu’s discussion of the doctrine which greatly influenced the construction of the US Constitution famously characterised it as a means to prevent abuse of government48. He warns that it would be the beginning of “arbitrary control” and the “end of everything” should judicial power be joined with the legislative 49 . In like

42 Ibid 724

43 Lim Meng Suang & Anor v Attorney General [2015] 1 SLR 26

44 Ibid [189]

45 Tan Seet Eng (n 38) [12]

46 Constitution of the United States 1788, Art I - III

47 James Madison, Federalist 51 (New York Packet, 1788)

48 Montesquieu, The Spirit of Laws (Genève : Barrillot & fils, 1748)

49 Ibid

manner, the framers of the US Constitution utilised the separation of powers to ensure the independence of the judiciary from political branches, with less emphasis on the independence of the political branches from the judiciary. Still, there are recognised limits to judicial power. Montesquieu reasoned that “national judges are no more than the mouth that pronounced the words of the law, mere passive beings” 50 . However, this brings us back to the issue of “constitutionality” and its inseparability from political issues. In practice, judges can never be complete “passive beings”, especially if the plain words of the law are insufficient to answer the legal question at hand.

Nonetheless, perhaps because of the origin of the separation of powers within the US constitution as primarily a check on political power, there is less emphasis on the separation of powers as a doctrine to limit the scope of power of the judiciary. As a result, we observe that the separation of powers is emphasised in a slightly different manner as compared to Singapore, where it is cited to a larger extent as a principle to guard against judicial overreach.

4. Separation of powers in the UK

The separation of powers in the UK is not governed by a written constitution unlike the US and Singapore. In general, the UK places less emphasis on the doctrine and applies a muted version of it. Several academics have even criticised the effectiveness of such a system of government. Walter Bagehot referred to the UK’s system of parliamentary supremacy as the “efficient secret” due to the close union and nearly complete fusion of executive and legislative powers in the Cabinet51

Nonetheless, we submit that the doctrine of non-intrusion of the courts into legislative powers forms a key tenet of the UK’s unwritten constitution, even more so given the UK’s commitment to parliamentary supremacy. This elucidates the same flashpoint as seen in our earlier assessments of Singapore and the US - where would the court draw the line between constitutional decisions which counteract unconstitutional actions of the political branch and unconstitutional judicial overreach?

50 Ibid

51 Walter Bagehot, English Constitution (London: Chapman and Hall, 1867)

Hence, we submit that theoretically, the UK legal system, with no constitutionally-protected rights and a commitment to upholding a sovereign parliament, demands an even greater degree of deference to political branches. However, tensions between practice and theory have been brought to light in the wake of the Human Rights Act 1998 which gives Convention rights domestic effect and necessitates the court’s confrontation of moral issues. Thus, analysing how the UK courts have dealt with moral issues would be just as helpful in allowing us to uncover how best to navigate the constitutional penumbras in the Singapore context, where the adoption of a green light approach makes the courts more inclined to afford a degree of “sovereignty” to the political branches. This will be discussed in greater detail in Chapter III.

III. Evaluating the constitutionality of substantive interpretations of fundamental liberties in the Constitution

In Chapter III, we will assess the scope of several constitutional penumbras with the aid of the principles identified in Chapter I and II. In doing so, we refrain from advocating judicial activism but instead adopt an interpretive approach aligned with Singapore’s legal culture. We will explore the possibility of courts dealing with political and moral issues without having to use their own subjective reasoning. We submit that understanding existing case law in other jurisdictions can enable the legal community to be well-versed with the options available to them via constitutional interpretation, but at the same time to stay wary of the pitfalls of substantive review. That way, should Singapore find itself in a situation which requires courts to adopt a more substantive form of judicial review to counter overreach from the political branches, the courts should be comforted by the fact that they are not walking on an untrodden path.

In assessing the constitutional interpretation of fundamental liberties, this article will consider two factors: 1) the wording of the legislation and 2) the interpretation adopted by the courts, placing greater analysis on the latter by attempting to identify Singapore’s constitutional penumbra through a comparative lens.

1. Constitutional interpretation in the context of the natural law/legal positivism debate

In deciding how courts should approach moral issues, we will have to address the theoretical underpinning of the analysis that proceeds. We will assess the court’s scope of judicial review of fundamental liberties in the constitution by reference to the natural law/legal positivism debate. Natural law views the law and morality as inseparable, while legal positivism argues that “what the law is” should be divorced from “what the law should be”.52 The debate has been the subject of much legal commentary since the 19th century through academics like Bentham, reaching its height in the mid-20th century especially through the development by HLA Hart, and persisting to this date as a fundamental tension in the law.53

For the purposes of this article, we will define the positivistic view as one that recognises the separation of law and morality, such that the validity of the law is determined by its source and not moral content. We submit that Singapore falls under this descriptive category, according to the characteristics of judicial review laid out in Chapter I. The analysis that proceeds will differentiate between tests that are positivistic in nature and tests that require courts to take on a natural law approach. We will ultimately favour tests that apply the positivistic approach given Singapore’s characteristics of judicial review as observed in Chapter I. This will be elaborated on in the preceding segments that suggest referencing “history and tradition” and “regulatory tradition” as a cornerstone of constitutional interpretation. We submit that although the substance of the legal issue may require the courts to confront moral or political issues, a positivistic approach will allow judges to avoid making their own subjective moral judgments.

We submit that courts cannot avoid assessing moralistic questions. The courts themselves have acknowledged that laws that are manifestly unjust should not be considered laws. Fuller validly argues that the law cannot be neatly applied to every factual situation that arises before the courts. Therefore, interpretation of the law can never be divorced from the purpose and structure of the legislation, which in turn requires us to answer moralistic questions. The penumbras found within the constitution is central to such a reasoning, as it is based on ambiguities in the wording of the constitution as a source of higher law that controls all other legislation and executive action. Overall, we welcome a common understanding within the

52 Tan Seow Hon, ‘Constitutional Jurisprudence” in Thio Li-ann and Kevin YL Tan, Evolution of a Revolution (Routedge-Cavendish, 2009) 85

53 For a local perspective, see Tan Seow Hon, ‘Constitutional Jurisprudence” in Thio Li-ann and Kevin YL Tan, Evolution of a Revolution (Routedge-Cavendish, 2009)

legal community that moral issues cannot be completely avoided by the courts. We further submit that the legal community would benefit from being able to navigate this constitutional penumbra through an exploration of alternative approaches to constitutional interpretation.

2. Article 9: Right to life and liberty

(A) Qualification of “in accordance with the law”

Article 9(1) of the Constitution states that “no person shall be deprived of his life or personal liberty save in accordance with law.”54. The main qualification is “in accordance with the law”.

We compare the nature of this qualified right with its equivalent in other jurisdictions. In the UK, Schedule 1 of the Human Rights Act 1998 states that “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”55. Here, the qualification is worded slightly differently, with the added requirement that the qualifying law must only be operative as a criminal sentence.

In the US, this right is protected by Section 1 of the 14th Amendment which states that No State shall “deprive any person of life, liberty, or property, without due process of law.”56 . This qualification is referred to as the due process clause, and it bears striking resemblance to the qualification contained in Article 9(1) of the Singapore Constitution.

We now assess constitutional interpretation in each jurisdiction, specific to the wording of the law.

(B) Interpretation adopted in Singapore and the UK

Singapore adopts a more procedural rather than substantive approach to the qualification “in accordance with the law”. Force is given to such an interpretation by the Privy Council case of

54Constitution of the Republic of Singapore 1965 (n 1), Art 9(1)

55 Human Rights Act 1998, Sch 1

56 Fourteenth Amendment to the Constitution of the United States 1868, s1

Ong Ah Chuan57. Lord Diplock refers to law as any law validly passed which adheres to natural justice58. This was affirmed by the court in Nguyen59. Lord Diplock noted that it would make Art 9(1) “more than a mockery” if it failed to afford protection for the individual in the enjoyment of his fundamental liberties60. Despite this strong statement, Lord Diplock did not attempt to infuse into the word “law” any idea of a natural theory of rights. The suggestion that natural justice includes substantive rights was tackled by the court in Yong Vui Kong61. The court cited Frederick Shauer’s observations that natural justice was a basis of procedural protection in the English legal system62 . The case concerned the constitutionality of caning as a penalty, and the court reasoned that “the fundamental rules of natural justice have nothing to say about the punishment of criminals after they have been convicted pursuant to a fair trial.”63 . Hence, this area of constitutional interpretation seems to be heavily influenced by the UK and the observations delivered by Lord Diplock in Ong Ah Chuan64 . Article 9(1) is thus read in a way that ensures procedural fairness, but stops short of substantive fairness. The court’s rejection of substantive fairness can be positively seen in their rejection of the “fair, just and reasonable” test in Yong Vui Kong65 .

Nonetheless, procedural fairness ensures a critical set of rights in itself. The court in Yong Vui Kong66 pointed out the difference between merely requiring legislation to be sanctioned by Parliament and the requirements of natural justice, with the latter constituting the higher bar67 . In Haw Tua Tau68, the Privy Council gave the example that the use of torture to extract evidence and convict someone would violate the rules of natural justice. In Ong Ah Chuan 69 Lord

57 Ong Ah Chuan (n 40)

58 Ibid [26]

59 Nguyen Tuong Van v Public Prosecutor [2004] SGCA 47 [82]

60 Ong Ah Chuan (n 56)

61 Yong Vui Kong v Public Prosecutor [2015] SGCA 11, [2015] 2 SLR 1129

62 Ibid [62]

63 Ibid [64]

64 Ong Ah Chuan (n 40)

65 Yong Vui Kong v Public Prosecutor & Anor [2010] SGCA 20, [2010] 3 SLR 489 [80]

66 Ibid

67 Ibid [16]

68 Haw Tau Tau v Public Prosecutor [1981] UKPC 23

69 Ong Ah Chuan (n 40)

Diplock noted that one of the fundamental rules of natural justice required that there should be material before the court that was logically probative of facts sufficient to constitute the offence with which the accused was charged, involving the tribunal being satisfied that the physical and mental elements of the offence were present70. Nonetheless, Lord Diplock considered that the impugned statute s15 of the Misuse of Drugs Act 1973 which provided the statutory presumption that possession of a certain quantity of drugs was for the purpose of trafficking, did not violate Article 9 rights71. Those who were in possession of such large quantities of drugs purely for personal consumption could rebut the presumption72. Consequently, Lord Diplock reasoned that it “borders on the fanciful” to say that the law offended natural justice73

Natural justice can be characterised more specifically according to various cases. As summarised by the court in Tan Seng Kee74:

The words “in accordance with law” under Art 9(1) have been interpreted to go beyond formal validity (in the sense of a valid enactment by the Legislature) to incorporate the following requirements:

(a) A statute must comply with the fundamental rules of natural justice, which are procedural rights aimed at securing a fair trial (see Yong Vui Kong (Caning) at [64]).

(b) A statute cannot be colourable legislation, such as legislation directed at securing the conviction of particular individuals (see Yong Vui Kong (MDP) at [16]).

(c) A statute cannot be absurd or arbitrary (see Yong Vui Kong (MDP) at [16]).

70 Ibid [27]

71 Ibid

72 Ibid

73 Ibid [28]

74 Tan Seng Kee v Attorney General [2022] SGCA 16 [254]

(d) A statute cannot be contrary to the rule of law (see Prabagaran a/l Srivijayan v Public Prosecutor and other matters [2017] 1 SLR 173 (“Prabagaran”) at [96]–[99]).

The main contention in Tan Seng Kee was on the application of the absurdity test. This test originated from Lord Diplock’s judgment in Ong Ah Chuan75 where he explicitly refrained from dealing with the issue of whether Parliament-enacted legislation would be valid under Article 9, no matter how absurd it may be. This left the matter open to future courts. Even though the court in Tan Seng Kee held that the absurdity test should be purely procedural in nature, it declined to define the test, only going as far as to give the example of a law that “cannot be understood or complied with”76. The law regarding the arbitrary test thus remains open-ended. Nonetheless, Tan Seng Kee77 shows the constitutional penumbra inherent in rights adjudication. Even in Singapore, the courts recognise that the separation of powers does not present an absolute bar to the infringement of legislative power by the courts, especially when the circumstances are absolutely necessary.

(C) Interpretation adopted in the US

We now turn to assess the US court’s constitutional interpretation of the right to life and liberty, bearing in mind its wording seems similar to Article 9(1) of the Singapore Constitution. The fourteenth amendment states that the State shall not “deprive any person of life, liberty or property, without due process of law. The courts have gravitated towards a more substantive approach towards judicial review, reading certain substantive rights into the due process clause. This has resulted in considerable uncertainty and changes in position across time as courts attempt to find a methodological process for recognising unenumerated substantive rights that should be enforced. Nonetheless, the discourse generated by the courts provides fertile ground for analysis. We consider the relatively more confined rule adopted by Washington v Glucksberg78, and subsequently the more expansive rule adopted by Obergefell v Hodges79. In 1997, Washington laid down the test that the right had to be 1) “deeply rooted in the Nation’s

75 Ong Ah Chuan (n 40)

76 Tan Seng Kee (n 73) [259]

77 Tan Seng Kee (n 73)

78 Washington v Glucksberg, 521 U.S. 702 (1997)

79 Obergefell v Hodges 576 U.S. (2015)

history and traditional and implicit in the concept of ordered liberty” and 2) required a “careful description” of the liberty interest at issue 80 . The court held that laws prohibiting assisted suicide would be constitutional, since it has only until recently been considered socially improper and illegal in many states81. In 2015, the ruling in Obergefell marked a huge shift from Washington v Glucksberg, doing away with both requirements in holding that same-sex couples have the right to marry82. Justice Kennedy, in preferring a case by case assessment, reasoned that rights “come not from ancient sources alone”, but also “from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”83. Here, we see the US courts taking two different positions which are both different from Singapore’s approach. While Singapore courts confine their analysis to procedural fairness, Washington asserts rights that can be identified through “history and tradition”, while Obergefell goes even further to assert rights that may be considered more modern and hence more contentious.

(D) Navigating the penumbras in Singapore’s Article 9 right to life and liberty

Obergefell as applying natural law principles

We submit that the current interpretation of the due process qualification within the right to life and liberty as laid down by Obergefell84 will be unconstitutional in the Singapore context given that it enables courts to take on a natural law approach to the issue. We submit that a case by case assessment by the courts with no clear criteria would empower the courts to adopt their own substantive ideas of morality. The remarks of the dissenting judges in Obergefell85 amplify this claim. Roberts CJ, Scalia JJ and Thomas JJ criticised the judgment, clarifying that “under the Constitution, judges have the power to say what the law is, and not what the law should be”, noting that while the policy arguments for extending marriage to same-sex couples may be sound, the legal arguments are not86. Roberts CJ further criticised the majority’s outright

80 Washington (n 77) 721

81 Ibid 738-741

82 Obergefell (n 78) 18

83 Ibid 18-19

84 Obergefell (n 78)

85 Ibid

86 Ibid 2

disregard of the law in place of its own “new insight” into the “nature of injustice”87 . This is evident when we consider the reasoning of the majority which considered that the right to samesex marriage was included within the larger right to marriage acknowledged by previous courts88. The majority attempted to derive the principles underlying marriage as established in past cases, i.e. individual autonomy, the uniqueness of a two-person union, the child’s welfare, and marriage as the keystone of social order89. The majority then considered that there was no difference between same and opposite-sex couples with respect to such principles90. However reasonable this may be, we submit the majority had in effect applied natural law principles and their subjective moral reasoning to decide on moral issues. This can be seen from the respondent’s argument which raised the issue that none of the cases quoted by the majority involved same-sex couples and what was laid down was effectively a “new and nonexistent right to same-sex marriage”91. We thus observe that adopting Obergefell92 will give judges free rein over issues of policy without firm guardrails to their scope of power, which Singapore courts are especially careful not to examine given their commitment to the green light approach.

Washington and the potential for a positivistic approach

However, we submit that the two-step test in Washington93 , especially the first limb which places greater emphasis on history and tradition of the nation, allows the courts to take on a positivistic approach to interpretation. The dissenting judges in Obergefell 94 favoured this approach, noting that there had to be a clear and careful methodology for selecting fundamental rights, “lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.”95. This approach reflects a less red-light approach to judicial review than in Obergefell. The emphasis on history and tradition ultimately creates greater certainty and logically confines the scope of rights that can be asserted through

87 Ibid 3

88 Ibid 12-17

89 Ibid

90 Ibid 17

91 Ibid 18

92 Obergefell (n 78)

93 Washington (n 77)

94 Obergefell (n 78)

95 Ibid 11

Article 9. Further, this is in line with the reasoning behind Singapore’s green-light approach in terms of ensuring efficiency and certainty in the adjudication of rights. The methodological approach in Washington could be a useful way to articulate Singapore’s absurdity test.

From a practical perspective, we will examine some areas of rights already considered by the US as fundamental to their concept of constitutionally ordered liberty. For instance, a less controversial right would be the freedom to marry regardless of race, which was held to violate due process in Loving v. Virginia 96 . A more controversial matter would be women’s substantially broader right to terminate a pregnancy, as recognised by Roe v Wade97. The court considered that the right has had a historical basis since the 19th century. However, Roe v Wade 98 has been recently overturned by Dobbs v. Jackson Women's Health Organization99 , with the courts disputing over the historical foundation of such a right. Nonetheless, even in the cases that test the outer limits of the Washington 100 approach, the approach ultimately empowers Singapore courts to consider the history and tradition of Singapore itself unbeholden to the vagaries of foreign judgments. In the following segment, we will observe the versatility of the Washington101 approach, enabling a more robust version of the absurdity test that allows an assessment of moral issues not just procedurally but also in terms of the substantive right in question, while simultaneously ensuring that Singapore continues to grow as an autochthonous jurisdiction, a principle recognised under Chapter I of this article.

Application in the Singapore context: Washington

Given the analysis above, we submit that the Washington102 test, or at least its first limb, falls within Singapore’s constitutional penumbra as a positivistic method of judicial review. As a restatement, a law or executive action that violates a right that is “deeply rooted in the Nation’s history and traditional and implicit in the concept of ordered liberty” would be considered unconstitutional. Our reasons are as follows.

96 Loving v. Virginia, 388 U.S. 1 (1967)

97 Roe v. Wade, 410 U.S. 113 (1973)

98 Ibid

99 Dobbs v. Jackson Women’s Health Organization, 597 U.S. (2022)

100 Washington (n 77)

101 Ibid

102 Ibid

1. The idea of positive morality is not completely foreign to the courts in Singapore

By observing the demands of natural justice or procedural fairness, the courts seem to be recognising a baseline level of morality in the procedure of the law. For instance, the courts have recognised that the use of torture to extract evidence and convict someone would violate the rules of natural justice, even if there is no law surrounding the issue. This shows that courts recognise the immorality of using torture prior to conviction before the courts.

The fact that the courts are already considering positive morality in respect of procedural fairness shows that it will not be too much of a stretch for positive morality to be applied in the area of substantive fairness. We observe that substantive fairness has already received some attention in the courts.

In Tan Eng Hong 103 , the courts applied similar reasoning, noting that if it were so clear, incontrovertible and undisputable that male homosexuality was not considered to be immoral by Singapore society at that time, the courts may reconsider the constitutionality of s377A104 . This shows the court’s reliance on existing views and opinions on the law to determine a certain standard of morality against which the constitutionality of laws could be assessed. Hence, we submit that a positivistic moral standard adopted by courts could be better expressed by the Washington105 test.

2. Connection between the “history and tradition” test and positivism observed in the US courts’ evaluation of other amendment rights

Although Obergefell 106 is currently the law, we submit that the “history and tradition” test continues to be applied in other amendment rights, and in ways which emphasise its positivistic approach. In United States v. Rahimi107 , the plaintiff gun-owner who had been violent and ignored a restraining order against him by his girlfriend was indicted under 18 U. S. C.

103 Tan Eng Hong v Attorney-General [2013] SGHC 199, [2013] 4 SLR 1059

104 Ibid [94]

105 Washington (n 77)

106 Obergefell (n 78)

107 United States v. Rahimi, 602 U.S (2024)

§922(g)(8). He argued that this violated his second amendment right to keep and bear arms. The court rejected this application and held that disarming the plaintiff would be “consistent with the principles that underpin our regulatory tradition”108. This regulatory tradition would be assessed by examining whether the impugned law is “relevantly similar to laws that [the Nation’s] tradition is understood to permit.” 109 . Although the case was relatively straightforward, we observe that the particular reference to “tradition” shows that the “history and tradition” test under the first amendment is not a single occurrence in the US’s constitutional interpretation, even though it has been rejected in Obergefell110. The reference to “regulatory tradition” and laws that are “relevantly similar” shed further light on the positivistic nature of such a test, thus bolstering its applicability in the Singapore context.

3. Appeal to “history and tradition” is currently invoked by the Singapore courts in other areas of judicial review

Although not expressly applied in constitutional review, we submit that Singapore courts have, in other areas of judicial review, implemented frameworks of analysis with the effect of taking into account the Nation’s “regulatory tradition”, as expressed in Rahimi111 above. For instance in UKM v AG112, the appellant, a gay man, visited the US with his long-term male partner to procure a child through surrogacy. The plaintiff applied to adopt the Child in Singapore. The court had to confront the tension between a statutory right allowing the adoption and public policy against same-sex family units. In ultimately deciding to grant the right, the court observed that it should be very cautious about resting its decision on socio-economic public policy since “Parliament has already spoken” in giving the statutory right113. Nonetheless, the courts took on a considerable degree of analysis, with the first limb involving the determination of the public policy involved either through past judgments or existing laws, and the second limb requiring the courts to undertake a balancing exercise between policy and the claimed

108 Ibid 680, 692

109 Ibid. (quoting Bruen, 597 U.S. at 29)

110 Obergefell (n 78)

111 Rahimi (n 106)

112 UKM v Attorney-General [2018] SGHCF 18, [2019] 3 SLR 874

113 Ibid [115]

right. Thus, we submit that a positivistic analysis of both judge-derived and statute-derived socio-economic policy is not a foreign concept for Singapore courts.

4. Addressing the limitations - Washington test insufficiently effective at ensuring new rights

Nonetheless, we concede that this may not allow much progress in terms of enabling a more liberal conception of rights. For instance, the courts are unlikely to declare unconstitutional the mandatory death penalty given that it does not seem to receive much challenge through Singapore’s “regulatory tradition”. However, we submit that the Washington114 test is effective in advancing the current state of constitutional interpretation beyond an assessment of procedural fairness, enabling some degree of scrutiny of substantive fairness to bolster against executive overreach and to provide greater certainty in navigating Singapore’s constitutional penumbras.

3. Article 12: Equal protection

(A) Equal protection clause

Article 12 (1) of the Singapore Constitution states that “all persons are equal before the law and entitled to the equal protection of the law.”115. Article 12(2) prohibits discrimination on the ground “only of religion, race, descent or place of birth”116

(B) Interpretation adopted in Singapore

In Lim Meng Suang 117 , it was held that whether a law violates Article 12 depends on the “reasonable classification” test which functions on two limbs: 1) whether the classification is founded on intelligible differentia and 2) whether the differentia has a rational relation to the object sought to be achieved by the law in question118. The court in Yong Vui Kong119 reiterated

114 Washington (n 77)

115 Constitution of the Republic of Singapore 1965, Art. 12 (1)

116 Ibid Art. 12(2)

117 Lim Meng Suang (n 43)

118 Ibid

119 Yong Vui Kong (n 60)

that there was no additional test as to whether the object of the law itself is legitimate120 . Here, we see striking similarities to the reasoning adopted by the court in Yong Vui Kong121 in relation to Article 9 above. The court in Yong Vui Kong 122 reasoned that “courts should not be adjudicating on controversial issues of policy, ethics or social values, which are more appropriately debated and resolved in the legislative sphere.”123 .

Despite this, we submit that the courts do not take an absolute approach to the position stated above. Instead, we submit that the court’s interpretation of Article 12 has acknowledged the existence of a constitutional penumbra. In Yong Vui Kong, it was stated that the courts may accept situations whereby a law’s object is so manifestly discriminatory that it would fail under the first limb of the test 124 . This harks back to the absurdity test applied in Article 9 and deliberated in Tan Seng Kee125. However, in the absence of a definition or framework to assess what may be considered “manifestly discriminatory”, this constitutional penumbra remains illdefined.

(C) Interpretation adopted in the UK

The UK ensures equal protection via Article 14 of the Convention rights126. Article 14 states that Convention rights “shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”127. Article 14 cannot be asserted as a standalone right and can only be asserted when there has been a prima facie violation of any of the other Convention rights.

The considerations, as listed by Baroness Hale in Re McLaughlin128, are as follows:

120 Ibid [106]

121 Yong Vui Kong (n 64)

122 Yong Vui Kong (n 60)

123 Ibid [106]

124 Ibid

125 Tan Seng Kee (n 73)

126 European Convention of Human Rights 1953, Art. 14

127 Ibid

128 Re McLaughlin [2018] UKSC 48, [2018] 1 WLR 4250 [15]

(1) Do the circumstances “fall within the ambit” of one or more of the Convention rights?

(2) Has there been a difference of treatment between two persons who are in an analogous situation?

(3) Is that difference of treatment on the ground of one of the characteristics listed or “other status”?

(4) Is there an objective justification for that difference in treatment?

Factors (1) and (3) are relatively straightforward. Factor (2) functions similarly to the first limb of the test in Lim Meng Suang129 . Factor (4) focuses on an objective justification and comes closer than the rest of the factors to the second limb of the test in Lim Meng Suang130. However, factor (4) is considered in a broader sense. Unlike the rational relation consideration in Singapore, the court considers whether there has been a legitimate aim and whether there is a reasonable relationship of proportionality between the impugned statute or executive decision and its objective131 .

The court in Re McLaughlin 132 considered the adoption of different tests according to the margin of appreciation granted to the particular subject matter by the European Court of Human Rights (ECtHR). Baroness Hale noted that “very weighty reasons” would be required by the ECtHR to justify a difference of treatment based only on the ground of sex (citing Willis v UK 35 EHRR 21)133. However, a wider margin of appreciation would be afforded to the UK in areas like economic or social strategy. The ECtHR in Stec v United Kingdom134 reasoned that

129 Lim Meng Suang (n 43)

130 Ibid

131 Re McLaughlin (n 127) [32]

132 Re McLaughlin (n 127)

133 Ibid [33]

134 Stec v United Kingdom (2006) 43 EHRR 47

the national authorities were better placed than the courts to appreciate the public interest135 . In aligning itself with the ECtHR, the UK has adopted the “manifestly without reasonable foundation” test for matters regarding policy. Cases involving a smaller margin of appreciation and thus greater judicial deference are perhaps more problematic. The courts have struggled to define the position it should take, with cases like Re McLaughlin136 recognising that powers may fall to the courts or political branches according to the subject matter. This was rather controversially resolved by the courts in Elan Cane137, which held that all cases falling within ECtHR’s margin of appreciation would fall outside the scope of the domestic courts’ powers of judicial review138. The court in Elan Cane reasoned that such matters would fall squarely within the scope of powers of the political branch139 .

Hence, it can be seen that while Singapore and UK approaches adopt similar considerations, UK courts and ultimately the ECtHR adopt a higher standard of review especially for cases concerning economic and social strategy. A key differentiating factor would be the UK’s adoption of a context-sensitive proportionality test influenced by the ECtHR doctrine, as compared to Singapore’s more formalist rational basis review that applies to all cases.

(D) Interpretation adopted in the US

Similar to the UK, the US courts apply the equal protection clause under the 14th amendment with varying intensities according to the subject matter. In particular, when legislation or executive action deals with a “suspect” classification like race, the Courts adopt a higher standard of “strict scrutiny”140 . In other areas, the less demanding rational relation test, as in Singapore, is adopted. The strict scrutiny test requires the classification to be narrowly tailored to achieve a demonstrably compelling government interest. As in the case of Parents Involved in Community Schools v. Seattle School Dist. No. 1141 the court held that allocating children to

135 Ibid [52]

136 Re McLaughlin (n 127)

137 R (Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56

138 Ibid [81]

139 Ibid [82]

140 Johnson v. California, 543 U. S. 499 (2005) 505-506

141 Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007)

schools purely on race violated the equal protection guarantee 142 . The court held that the coarseness of race being the single determining factor and the adoption of binary white/nonwhite distinctions outweighed the school’s compelling interest in remedying the effects of past intentional discrimination143

It is interesting to note where US courts draw the line between suspect and non-suspect categories. Much like the UK, the court has noted that the equal protection clause would afford States wide latitude in cases concerning “social or economic legislation.” 144 . In City of Cleburne145 , the Supreme Court rejected the Court of Appeals’ formulation of a “quasi-suspect” classification that mentally retarded persons would fall into in relation to policy matters, and that the courts would apply intermediate-level scrutiny146. The impugned statute concerned a municipal zoning ordinance requiring permits for homes for the mentally retarded. The Supreme Court held that the issue would have to be considered under the lower standard of rational relation due to the economic and social nature of the subject matter147. The court also reasoned that mentally retarded persons form a huge and varied category in society and Courts therefore had to afford the legislature sufficient flexibility and freedom148. The other reason cited was that forming a “quasi-suspect” qualification would open the floodgates to other categories such as the aging, disabled, and mentally ill who would likely qualify as a “quasisuspect” qualification149 . However, even under the rational relation test, the Supreme Court held that requiring a special use permit before property can be used as a group home for persons who are mildly retarded failed to have a rational relation to the city’s purported objective of protecting them from hazards present in the neighbourhood150 .

of

146 Ibid 437-438

147 Ibid 456

148 Ibid 445

149 Ibid 445-446

150 Ibid 433

We acknowledge that the rational relation test in the US involves an assessment of the objective of the impugned statute, requiring the courts to undertake an assessment of the objective in relation to demonstrable government interest. In contrast, Singapore courts do not engage in such an inquiry, as emphasised by the court in Yong Vui Kong151. This position will be evaluated in the following segment in relation to the court’s appreciation of the possibility of “manifestly discriminatory” laws.

(E) Navigating the penumbras in Singapore’s Article 12 right to equal protection

We take guidance from the observation that even in assessing the objective of the statute, the courts face a constitutional penumbra. Much like the court’s interpretation of Article 9, the courts have not shied away from acknowledging a baseline standard of morality in the instance of legislative or executive overreach. In the same vein, the courts in Yong Vui Kong152 accept that there may be situations whereby a law’s object is so manifestly discriminatory that it would fail under the first limb of the test concerning intelligible differentia. Here, we can see the court’s reliance on morality as a means to navigate this constitutional penumbra, much like the absurdity test under article 9. Other subjective considerations have to be made influencing the outcome of the decision. In Tan Seng Kee, it was noted that the objective of the law cannot be so narrowly construed to be self-encompassing of the discrimination in question.

Thus, we aim to provide a framework to assess the issue of when the object of a law would be considered “manifestly discriminatory”. We note that this would, similar to Article 9, require an assessment of moral issues, in the absence of laws that describe the standard. Nonetheless, we can once again adopt an approach that takes into account positive morality so as to prevent the need for judges to take on their own subjective beliefs about the moral issue at hand. In the first step, we suggest that the ambit test should be applied as a gateway to further assessment, with an additional condition that prescribes a positivistic upper bound. In the second step, we suggest that the strict scrutiny tests should be adopted in addition to the rational relation test, since these tests meaningfully delineate between different forms of policy issues.

151 Yong Vui Kong (n 60) [106]

152 Ibid

Step 1: Application of the ambit test

We submit that the ambit test advanced in the first limb of the test in McLaughlin153 should be undertaken by the courts, but that an additional condition that the right is “deeply rooted in the Nation’s history and tradition” should be read into the test, for the reasons identified in xx above. We examine how this may be applied. In Re McLaughlin 154 , a widow claimed for widowed parents’ allowance. Her claim was rejected on the grounds that she was not a spouse under section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992. In applying the ambit test, the courts observed that the right to a widowed parent’s allowance was a measure which, though not required by the article 8 rights afforded to children within their families, was a positive right that fell under article 8155. The court considered that it had a more than tenuous connection with the core values in article 8, and thus found that the issue fell within the ambit of the right in question156. Thus, the first step under the ambit test would be modelled after the test in Re McLaughlin, requiring a “more than tenuous connection” with fundamental liberties. The additional condition that the right must be deeply rooted in the Nation’s history and tradition would then provide an upper bound for the courts rooted in a positivistic analysis. If the right asserted does not satisfy the criteria, the right will then be evaluated against the rational relation test, i.e. the right is evaluated as per normal. If the right does satisfy the criteria, it will then be assessed under step 2. In step 2, we adopt a second round of filtering, recognising that Parliament may have social and economic reasons for refusing to accord these rights in an absolute manner.

Step 2: Application of the rational relation/strict scrutiny test

Since the right asserted has been found to be one that is a modality of one of the fundamental liberties and crucially, grounded in positive morality, we submit that in theory, any discrimination on the grounds of “religion, race, descent or place of birth” would be unconstitutional. However, we concede that this would necessitate a red light approach that grossly intrudes on political powers, specifically in the area of economic and social issues which stand apart from moral ones.

153 Re McLaughlin (n 127)

154 Ibid

155 Ibid [22]

156 Ibid

For instance, employment laws in Singapore accord different rights to citizens and for instance, work permit holders like migrant and domestic workers. The government requires the latter group to apply for permission before marrying a Singapore citizen, with the economic purpose of controlling the influx of workers. In terms of positive rights, work permit holders also lack access to the same social benefits as Singapore citizens. Here, it is difficult to assert an absolute right to one of the fundamental liberties, however reasonable this may be, since this would constitute intrusion of the courts into legislative powers, especially pertaining to economic and social policy.

Hence, this is where the rational relation/strict scrutiny tests can be employed usefully to prevent judicial overreach. This will provide another avenue in which the constitution can be interpreted to enforce rights more substantively, yet in a calibrated way. In Syed Suhail, the court noted that the reasonable classification test had to be applied in a context-sensistive manner, and a case concerning a violation of the individual’s right to “life and liberty to the gravest degree” would require the courts to be “searching in its scrutiny.” We submit that just as the courts have shown a willingness to differentiate according to the context of the legal consequence, a test enabling courts to differentiate according to the nature of the discrimination will further the objective of ensuring fairness. Although it may be argued that what qualifies as “suspect classification” might be subjective, we submit that what is considered a “grave degree” of violation of life and liberty, as raised in Syed Suhail, is just as subjective.

We apply our foregoing analysis to a relevant matter. Section 6 of the Fourth Schedule of the Employment of Foreign Manpower (Work Passes) Regulations 2012157 provides that foreign employees are required to gain prior approval from the authorities before marriage. This discrimination by race is a suspect classification, thus triggering the strict scrutiny test. However, social and economic issues are engaged, in terms of the objective of controlling the influx of foreigners into Singapore, which would justify the rational relation test. The intensity of the balancing exercise will vary accordingly. However, we submit that it is likely that the issue will fall to be determined under the rational relation test, given similar observations in

157 Fourth Schedule of the Employment of Foreign Manpower (Work Passes) Regulations 2012, s6

City of Cleburne 158 that wide latitude will be afforded to social and economic legislation. Nonetheless, we submit that the framework proposed in this segment will allow the courts to take on a more structured review of what should be considered “manifestly discriminatory”, preventing political branches from adopting discriminatory measures without a firm grounding in social and economic justifications. This framework thus simultaneously bolsters against executive overreach and provides greater certainty in navigating Singapore’s constitutional penumbras.

4. Article 14: Freedom of speech, assembly and association

(A) Qualification of “necessary or expedient” restrictions on rights

Article 14 of the Singapore Constitution gives citizens the right to freedom of speech, assembly and association159. However, this right is qualified as Parliament is able to impose “necessary or expedient” restrictions on rights if they are in the interests of matters like national security, public order or morality, protection of the privileges of Parliament and protection against contempt of court, defamation or incitement to any offence160 .

In Xu Yuanchen161 , the court expressly rejected the idea that the proportionality analysis applied in Singapore 162 . The court re-emphasised that the test only requires Parliament to have considered the restriction to be “necessary and expedient”163 .

(B) Interpretation in the UK

Article 10 of the HRA 1998, taken from Article 10 of the European Convention of Human Rights (ECHR) similarly qualifies the right to freedom of expression, noting that a violation had to be “necessary in a democratic society, in the interests of national security, territorial integrity or public safety…”164 .

158 City of Cleburne (n 143)

159 Constitution of the Republic of Singapore 1965, Art. 14

160 Ibid

161 Xu Yuanchen (n 34)

162 Ibid at [83]

163 Ibid at [89]

164 Human Rights Act 1988, Article 10, Paragraph 2

The courts adopt a proportionality approach in line with the ECtHR. In Handyside 165 , the ECtHR stated that the adjective ‘necessary’ implies the existence of a ‘pressing social need’166 . Further, it held that the ‘interference’ had to be ‘proportionate to the legitimate aim pursued’ and the reasons given by the national authorities are ‘relevant and sufficient under Article 10(2)’167. This analysis was again applied by the ECtHR in Sunday Times168, to conclude that the restriction of the Sunday Times article on the thalidomide case did not correspond to a social need sufficiently pressing to outweigh the public interest in freedom of expression and that the reasons were not sufficient 169 . The thalidomide cases involved unsatisfactory compensation given by the domestic courts with regard to claims for compensation by mothers and the children affected by thalidomide. The ECtHR also found that the restraint on the article proved not to be proportionate to the legitimate aim pursued and that it was not necessary in a democratic society170 .

(C) Navigating the penumbras in Singapore’s Article 14 right to freedom of speech, assembly and association

We consider the applicability of the Handyside test in Singapore. We concede that the court’s explicit rejection in Xu Yuanchen of the proportionality test on the particular grounds of the separation of powers may militate against the application of the Handyside test in Singapore. However, we submit, as argued in Chapter II, that there is a constitutional penumbra around the separation of powers, specifically the scope of the judiciary and the scope of the political branches.

We submit that the Handyside test could possibly be applied in the Singapore context, so long as the court first applies the preliminary test requiring the right to freedom of expression asserted to be “deeply rooted in the Nation’s history and tradition”. This, similar to what has been argued in Articles 9 and 12, provides a positivistic upper bound to the right asserted. As

165 Handyside v United Kingdom (1976) 1 EHRR 737

166 Ibid at [48]

167 Ibid at [49]

168 Sunday Times v United Kingdom (1979) 2 EHRR 245

169 Ibid at [67]

170 Ibid

argued in Article 12, once it has been established that the particular right exists in the Nation’s regulatory tradition, the courts should be bolder in applying an objective test, requiring more than just the legislature’s subjective opinion on the necessity and expedience of the aim. The Handyside test will then be useful as a means to minimise the court’s infringement on moral, social and economic issues. Should the right asserted not be found to be supported by the Nation’s regulatory tradition, we submit that courts should revert to the lower subjective standard currently applied by Singapore courts. This double-standard test draws parallels to the rational relation/strict scrutiny test as argued for in relation to Article 12 and we submit that this will allow the courts to adopt a more sensitive approach to navigating the constitutional penumbra of fundamental liberties.

We submit that this proposed test would not lead to a significant change in the court’s current position, since we have suggested that this proposed test will be limited to rights that are “deeply rooted in the Nation’s history and tradition”. In Chee Siok Chin, the court noted that “attacks” and “protests” which are unjustified due to a lack of factual or other legitimate basis are not protected by Article 14 of the Constitution. The court rejected an unfettered right to undermine the legitimacy of public institutions when there had been no purpose. In this case, there had been no wrongful acts committed by the financial institutions who had been the subject of the protests.171 Seeing from how it is not in Singapore’s regulatory tradition to grant the right in such a circumstance, it is likely that the Handyside test will not be triggered in such a situation. However, the Handyside test is likely to be triggered in the case of a violation of a right to expose public institutions which are reasonably believed to have done wrong, since the courts are likely to find that this is a right “deeply rooted in the Nation’s history and tradition”. We observe that this suggestion is subject to similar evaluation as laid out in the section above, especially in relation to the inevitability of resorting to positive morality when dealing with fringe violations and the current assessment of history and tradition already applied in other aspects of judicial review as seen in UKM v AG (See Application in the Singapore context: Washington).

171 Chee Siok Chin and Others v Minister for Home Affairs and Another [2005] SGHC 216 at [131]

Overall, we submit that utilising positive morality to delineate between a lower and higher standard of judicial review will more effectively bolster against executive overreach and provide greater certainty in navigating Singapore’s constitutional penumbra.

IV. Conclusion

In conclusion, this article has explored how fundamental liberties enumerated in the Singapore Constitution can be interpreted more substantively, yet in a calibrated way, by considering constitutional interpretation in the US and UK jurisdictions. The article has acknowledged the inevitability of the courts invoking moral reasoning through their acknowledgement of the absurdity test and manifest unreasonableness. In line with this, we deliver suggestions for substantive frameworks for constitutional interpretation that enforce a greater degree of substantive rights in a way that is controlled by legislative history and tradition in the local context.

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ALLIANCING FOR SINGAPORE’S COMPLEX ROAD AND TUNNEL PROJECTS: A BETTER WAY TO BUILD

THE NORTH-SOUTH CORRIDOR?

Joyee Goh*

I. Introduction

Alliancing is a form of collaborative contracting methodology used extensively by the construction industry in countries like Australia,1 and the United Kingdom.2 However, the use of alliancing and more broadly, collaborative contracting remains infrequent in Singapore,3 despite academics highlighting its benefits for the construction industry, 4 and the Singapore Government’s increasing encouragement for its adoption in projects. 5 In April 2023, Chief Justice Sundaresh Menon of the Supreme Court of Singapore noted that construction disputes in Singapore are becoming increasingly complex, calling for enhanced collaborative practices to be implemented.6

* Melbourne Law School, Juris Doctor, Class of 2025

1 See, eg, Gang Chen, Guomin Zhang and Yimin Xie, ‘Overview of the Australia-Based Studies on Project Alliancing’ (2010) 1, 4; Sean Kelly and Yazmin Judd, ‘Forms, Use and Performance of Collaborative Contracting Models in Australia and the US – Past, Present and Future’ [2022] International Construction Law Review 358, 359–60.

2 See, eg, Simon Fullalove, ‘Highways England Awards £7 Billion NEC4 ALC for Smart Motorways’ (New Engineering Contract, 16 July 2020) <https://www.neccontract.com/news/highways-england-awards-£7billion-nec4-alc-for-smart-motorways> accessed 30 April 2025; HS2, ‘Corporate Plan 2023 2026’<https://assets.publishing.service.gov.uk/media/64de1a183fde6100134a5445/26579_HS2_CorporatePlan_23 - 26_CS1814_V6e_Digital_Accessible_PDF_reduced.pdf> accessed 30 April 2025. For brevity purposes, the United Kingdom will not be explored further in this article.

3 Mahesh Rai and Loh Tian Kai, ‘Singapore’ in Alan Stone and Tom Green (eds), Construction & Engineering Law 2024 (International Comparative Legal Guides, 11th ed, 2024) 141, 141.

4 See, eg, M Motiar Rahman and Mohan M Kumaraswamy, ‘Joint Risk Management through Transactionally Efficient Relational Contracting’ (2002) Construction Management and Economics 45, 53; Zhang and others, ‘Collaborative Contracting in the Singapore Construction Industry: Current Status, Major Barriers and Best Solutions (2020) Engineering, Construction and Architectural Management 3115, 3116.

5 Ezani Rais Bin Shaiks Salim, ‘The “I” in Collaborative Contracting’ <https://surbanajurong.com/wpcontent/uploads/2018/08/Article-on-Collaborative-Contracting-Final.pdf> accessed 30 April 2025, 1. See also, Building and Construction Authority of Singapore, ‘Construction ITM Launch at SCPW’ (24 October 2017) 5. See generally, Singapore Academy of Law Reform Committee, Guide on Collaborative Contracting in the Construction Industry (January 2022).

6 Sundaresh Menon, ‘Constructing Collaboration: Remoulding the Resolution of Construction Disputes’ [2023] International Construction Law Review 347, 347.

Against this background, this article argues that alliancing should be adopted in Singapore for complex, long-term public projects involving substantial road, highway and tunnel construction. This argument is developed in three sections. First, I explain alliancing as a collaborative contracting methodology, discussing its origins, definition and appropriateness. Second, I draw on the case study of the Queensland Government’s Ipswich Motorway upgrade (‘IM upgrade’) completed in 2012 to illustrate the benefits of adopting alliancing for a complex road project. Building upon this analysis, I examine why alliancing should likewise have been used by the Singapore Government for the North-South Corridor integrated road project (‘NSC project’). Third, I consider the two reasons hindering alliancing from being adopted in Singapore: organisational inertia and whether alliancing is truly cost-saving or ‘value for money’. Notwithstanding these obstacles, I conclude that alliancing should be adopted in Singapore as a contracting methodology, especially for large-scale, challenging and innovative public road projects like the NSC.

II. Explaining Alliancing

(A) The origins of alliancing in the United Kingdom and its rise in Australia

Alliancing emerged as a form of collaborative contracting from the United Kingdom in the early 1990s when British Petroleum (‘BP’) had to develop a new contracting approach to extract oil reserves in the North Sea.7 Traditional contracting methods that emphasised risk allocation and competitive bidding were inadequate in ensuring the project remained profitable.8 Further, as the oil field in question, Andrew Field, was known as a “notoriously problematic oil reserve”, the project was highly complex and required close cooperation between the contracting parties rather than an adversarial relationship between the parties.9 Therefore, a ‘project alliance’ was created, and the parties worked as a single integrated team.10 Through this model, BP developed a new ‘painshare-gainshare’ compensation program to align

7 See Terry Knott, No Business as Usual: An Extraordinary North Sea Result (British Petroleum Company, 1996).

8 Matthew W Sakal, ‘Project Alliancing: A Relational Contracting Mechanism for Dynamic Projects’ (2005) Lean Construction Journal 67, 68.

9 ibid 69.

10 Lukas Klee, International Construction Contract Law (John Wiley & Sons, 2015) 140.

each commercial party’s interest with the project’s outcome to facilitate smooth collaboration. This ‘painshare-gainshare’ mechanism entailed “complete open book accounting”, sharing all “uninsurable risk between all project members and settling an initial target cost generated by the whole project team”.11 Ultimately, BP’s alliance was highly successful as it reduced the capital costs by 21 percent and delivered the project six months ahead of schedule.12

Following the success of the BP’s alliance in the Andrew Field project, alliancing was widely adopted by Australia’s public sector from 1995 to 2009, particularly for construction and engineering projects.13 The first two Australian projects to implement project alliancing were the Wandoo and East Spar projects, which commenced in 1994 and involved oil and gas fields. Both were deemed a “resounding success”.14 The Wandoo project was completed about six percent under budget,15 and seven months ahead of the industry norm.16 Importantly, it met all design specifications and developed new technologies at various stages of the construction process in Western Australia.17 Similarly, the East Spar project was delivered in just 22 months, a remarkable achievement for a new offshore gas field in Australia.18 Following these projects, alliancing became widely adopted in Australia, especially by government agencies in road, rail and water sectors.19 Since 2017, alliancing has remained “the most popular contracting model”,20 despite criticisms regarding its profitability and questions about whether it is ‘value for money’ for clients, as suppliers may achieve higher profits while bearing less risk.21

11 Sakal (n 8) 69.

12 Klee (n 10); Sakal (n 8) 69.

13 Kelly and Judd (n 1) 360.

14 Sakal (n 8) 70.

15 Jack Goodacre, ‘The Wandoo Development – Continuous Innovation in Australia’ (Offshore Technology Conference, Houston, Texas, 4–7 May 1998) 253

16 ibid 251.

17 ibid.

18 PF Campbell and others, ‘East Spar Development: First Offshore Gas Field in Australia Developed by Alliance’ (Offshore Europe Conference, Aberdeen, Scotland, 9–12 September 1997) 19

19 Fischer and others, ‘Collaborative Contracting Comeback’ (2019) Building and Construction Law 26, 31.

20 Kelly and Judd (n 1) 371

21 Nick Tamburro and Peter Wood, ‘Alliancing in Australia: Competing for Thought Leadership’ (2014) Management, Procurement and Law 75, 77.

(B) Defining alliancing

Having established the origins and rise of alliancing, it is worth explaining alliancing as a collaborative contracting model. In brief, alliancing is a form of collaborative contracting model in which parties form an alliance and operate as one single, integrated team to achieve shared commercial goals.22 Alliancing departs from the traditional model of risk allocation by promoting a collective approach in the form of risk and reward sharing.23 Further, it fosters a noblame culture that seeks to avoid litigation wherever possible,24 thus reducing legal costs for all parties. For these reasons, it is regarded as the “high-water mark” of collaborative contracting.25

While alliancing and partnering are at times used interchangeably in literature and are alike insofar that they both promote mutual trust, collaboration between parties and commitment to the common goals of the project, 26 they are largely distinct approaches. 27 Alliancing is formalised through a legally binding ‘project alliance agreement’, which typically includes clauses for risk sharing, dispute resolution and performance incentives. In contrast, a partnering arrangement is made of soft elements designed to encourage inter-organisational cooperation rather than operating as a legally binding mechanism.28 Such soft elements include having trust and mutual understanding between parties as necessary conditions for partnering.29

22 Damian McNair, ‘Alliancing’, PWC Australia, 3 <https://www.pwc.com.au/legal/assets/investing-ininfrastructure/iif-21-alliancing-feb16-3.pdf>.

23 Sakal (n 8) 71.

24 Fischer and others (n 19) 32.

25 Fischer and others (n 19) 31.

26 Chen and others, ‘Overview of Alliancing Research and Practice in the Construction Industry’ (2012) Architectural Engineering and Design Management 103, 104.

27 Derek HT Walker, Keith Hampson and Renaye Peters, ‘Project Alliancing vs Project Partnering: A Case Study of the Australian National Museum Project’ (2002) Supply Chain Management 83, 83–86.

28 Chen and others (n 26) 104.

29 Johan Nyström, ‘The Definition of Partnering as a Wittgenstein Family-Resemblance Concept’ (2005) Construction Management and Economics 473, 478.

Given that the features of alliancing have been extensively examined by other authors,31 this section will provide only a succinct overview, briefly examining four of its main features.

(1) A shared risk and reward regime, also known as a ‘painshare-gainshare’ mechanism, which distributes the project’s commercial risks and rewards between the parties32

Risk can be defined as a hazard that may result in adverse financial or operational consequences for the project,33 including delays to the date for practical completion. Given their long-term horizons, involvement of numerous parties (including owners, contractors, subcontractors, engineers, and consultants), and significant technical demands, construction projects are highly unpredictable and susceptible to risk.34 However, in construction projects, it is generally challenging to eliminate risks.35 Instead, they are typically transferred to another party, or, at best, shared through contractual obligations outlined in the construction contract.36

30 Fischer and others (n 19) 28.

31 See, eg, Chen and others (n 26) 106–07; Fischer and others (n 19) 31–32; Sakal (n 8) 71.

32 Fischer and others (n 19) 32.

33 Aurelija Peckiene, Andzelika Komarovskab and Leonas Ustinoviciusc, ‘Overview of Risk Allocation Between Construction Parties’ (2013) Procedia Engineering 889, 889.

34 Menon (n 6) 348.

35 Peckiene, Komarovskab and Ustinoviciusc (n 33).

36 ibid.

Figure 1: Contracting Models Along a Spectrum of Risk Allocation and Risk Sharing30

In more traditional forms of contracting such as a Design and Construct model, the contractor is responsible for designing and executing the entire project, and must deliver the project notwithstanding errors during the design process.37 In that sense, the contractor largely assumes the risks associated with the construction project. If any of these risks materialise, particularly in the form of delays, the contractor will likely compensate the owner through liquidated damages if provided for in the contract.38 Conversely, if the project is delivered punctually or ahead of schedule, the contractor may receive performance incentives.

In contrast, parties of an alliance share the risk and rewards of the project, insofar that they are jointly responsible for delivering the project as well as rectifying any defects; any costs incurred during this process is likely to be accommodated via their ‘painshare-gainshare’ mechanism.39

(2) An integrated project alliance team

This involves forming a ‘project alliance board’ with a representative from each organisation to make unanimous decisions about the project.40 This reflects the idea of ensuring that parties of the alliance work collaboratively and openly, to minimise conflicts as well as the delays and costs that would arise from litigation.41

(3) A no-blame culture

37 Klee (n 10) 106, 110.

38 The validity of the liquidated damages clause is still subject to the penalties doctrine. In Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915] AC 79 at 110, it was held that the penalties doctrine requires for the amount stipulated to be a ‘genuine pre-estimate’, and not one that is ‘extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach’. In essence, a liquidated damages clause is likely to be unenforceable if its effect contains a more punitive, as opposed to a compensatory nature. This test was affirmed by the Singapore Court of Appeal in Denka Advantech Pte Ltd v Seraya Energy Pte Ltd [2021] 1 SLR 631.

39 Fischer and others (n 19) 32. A painshare-gainshare mechanism is most commonly provided for in the clauses of an alliancing contract. A simple example is a clause stipulating a 50:50 split of any ‘pain’ incurred or ‘gain’ achieved.

40 Sakal (n 8) 71.

41 McNair (n 22) 3.

Relatedly, emphasis on a no-blame culture under alliancing encourages parties to resolve unexpected situations and disputes together rather than assigning fault and pursuing litigation which may lead to increased legal costs for all parties.

(4) A transparent, open-book accounting

Central to alliancing is its transparent, compensation model where costs, profits and contingencies are visible to all parties.42

(C) Success factors of alliancing

In addition to these key features, it is also important to identify the factors that underpin successful alliancing projects. A range of success factors has been identified, such as:

• Selecting the best personnel for the project, to ensure that the skills and commitment they bring will contribute to the alliance’s success.43

• Collectively deciding on a target cost by the parties to ensure a successful adoption of a ‘best for project attitude’ as an adequate measure for performance and incentive for the project.44

• The role of leaders in ensuring the project is delivered in a harmonious and collaborative environment, as opposed to an adversarial environment consisting of construction parties and their employees working in siloes, thereby promoting alliancing philosophy throughout all levels.45

(D) Analysing the appropriateness of alliancing

While alliancing remains highly favoured as a collaborative contracting methodology due to its emphasis on a no-blame culture and ‘painshare-gainshare’ mechanism and commitment to working as one integrated team, it is also resource-intensive to establish and requires parties to adopt a fundamentally different mindset compared to traditional contracting methods.

42 See Sakal (n 8) 72–74 for an example of a three-limbed open-book compensation model.

43 Anthony Abrahams and Alan Cullen, ‘Project Alliances in the Construction Industry’ (1998) Australian Construction Law Newsletter 31, 31

44 ibid 31–32. The ‘target cost’ represents the total estimate of bringing the project to completion

45 Steve Rowlinson and Fiona YK Cheung, ‘Success Factors in an Alliance Contract: A Case Study in Australia’ (Conference Paper, International Conference of AUBEA/COBRA/CIB Student Chapter, 4–8 July 2005) 7.

Therefore, alliancing is viewed as a suitable contracting approach only for specific types of projects.

Alliancing is most appropriate for:

• Projects that are technically complex or where the scope is uncertain and subject to changes. For example, changes to the project might arise due to stakeholders’ input that might significantly impact its progress or direction.46 Similarly, alliancing is suitable when crucial design elements cannot feasibly be determined before going to tender.47 With a no-blame culture and parties in an alliance sharing both the risks and the rewards of the project, it creates a collective incentive to adapt constructively to unforeseen changes rather than defaulting to adversarial claims or disputes when scope changes arise.

• Projects that are innovative and require knowledge-sharing, skills and resources across a number of parties with diverse skill sets.48 Due to the open and team- integrated nature of an alliance, if the project requires innovative solutions to be given, parties in an alliance would be more willing to contribute and work towards achieving a shared outcome.

• Long-term projects that require close collaboration between parties. 49 With the key features of alliancing designed to promote an open and conflict-resolution culture for the parties, such a contracting methodology is likely to preserve the relationships between parties over the course of a lengthy project.

Conversely, alliancing is less appropriate for:

• Projects that are straightforward and less risky. This might mean that the scope of the project has been determined, the risks are traditionally manageable, and parties do not

46 McNair (n 22) 5.

47 ibid.

48 ibid.

49 ibid.

have to innovate as much. Consequently, parties have fewer reasons to adopt the ‘risk sharing’ approach in alliancing as opposed to more traditional contracting methods.50

• Parties that struggle to adapt to any of the key mechanisms or success factors that alliancing requires for effective collaboration,51 such as taking a risk-sharing approach as opposed to a traditional risk-transfer approach.

• Projects over a short-term. Setting up an alliance can be very labour-intensive and might not be as beneficial if the project is completed within a short duration, as other collaborative contracting methodologies might be more suitable.52

Having established that alliancing is suitable for complex projects, the following section will first examine Queensland’s IM upgrade, before applying its lessons to Singapore’s NSC project, given the similarities in their nature as large-scale road infrastructure upgrades.

III. BUILDING A CASE FOR ALLIANCING TO BE ADOPTED FOR SINGAPORE’S NSC

(A) A brief summary of the Queensland’s IM upgrade

Given that the original Ipswich Motorway took many years of construction and experienced “significant periods of peak traffic congestion” and an “unacceptable accident record”, the IM upgrade focused on several aims including “[m]aking the best use of the existing road network”, “[i]mproving road safety”, “addressing previous traffic congestion issues” and “[i]nstalling a state of the art Intelligent Transport System to improve ongoing management of the motorway”.53 The Queensland Department of Transport and Main Road (‘the Department’) selected five organisations that it wished to work with, and requested for them to form an alliance, which resulted in the creation of ‘Origin Alliance’ for the IM upgrade. 54 The Department’s rationale for adopting this approach stemmed from the need to secure “the best

50 ibid.

51 ibid.

52 ibid.

53 Origin Alliance, ‘Ipswich Motorway Upgrade: Dinmore to Goodna Project’ (Technical Paper) 3.

54 ibid 4.

of the best” people for the project amidst a challenging market for sourcing experienced contractors at the time.55

The A$1.95 billion (approximately US$1.3 billion) federally-funded IM upgrade from Dinmore to Goodna in Queensland, Australia exemplifies how alliancing has been used successfully to deliver a complex project within time and cost constraints, despite several unexpected obstacles that required innovative solutions. 56 This case study illustrates the benefits of alliancing for complex road projects for complex, long-term public projects involving substantial road, highway and tunnel construction. Accordingly, it could potentially serve as a ‘roadmap’ for Singapore’s ongoing NSC integrated road project valued at S$7.47 billion (approximately US$5.5 billion). Indeed, with increasing calls for the adoption of collaborative contracting in Singapore,57 lessons from the Origin Alliance in the IM upgrade highlight the benefits of alliancing and offer insights into its potential implementation in the NSC project. These lessons and benefits from the IM upgrade will be further explored below.

(B) Benefits of using alliancing: a case for alliancing to be used in Singapore’s NSC project

The NSC integrated road project is Singapore's largest road infrastructure initiative to date, which aims to enhance connectivity and reduce transportation times between the North and Central parts of Singapore, especially for vehicles like buses and cars.58 Originally conceived as a major expressway, the project has evolved into a broader transportation initiative that goes beyond mere expressway construction.59 In addition to the construction of an 8.8km viaduct and 12.3km of underground road tunnels, roads will also be transformed to include priority lanes for buses as well as cycling routes into the city.60 Further, certain road tunnels will also be

55 ibid.

56 ibid 2.

57 See (n 5).

58 Land Transport Authority, ‘LTA Awards $954.1 million in Contracts for the Construction of North-South Corridor Viaduct’ (16 December 2019) <https://www.lta.gov.sg/content/ltagov/en/newsroom/2019/12/1/lta_awards_contracts_for_the_construction_of_ NSC_viaduct.html> accessed 31 March 2025.

59 Adrian Lim, ‘Integrated North-South Corridor to Be Ready in 2026’ The Straits Times (Singapore, 29 April 2016) <https://www.straitstimes.com/singapore/transport/integrated-north-south-corridor-to-be-ready-in-2026> accessed 31 March 2025.

60 ibid.

repurposed to create community spaces for residents along this integrated transport corridor.61 Despite the project commencing in 2018 and being originally slated to conclude by 2026, it was later announced that the project will only be completed in 2029, three years after the original deadline. 62 While time is undoubtedly a critical factor for all road projects, timely delivery is an even greater priority for the NSC project given its extended delays. As Singapore’s first integrated road project of its kind, the NSC project also presents an opportunity to adopt innovative approaches to road and tunnelling construction. Given that it is also a public sector project, delivering it within budget and using resources efficiently is essential to ensure that it is a ‘value for money’ project. To meet these commercial objectives, alliancing presents itself as a promising collaborative contracting methodology.

The following sections illustrate the benefits of using alliancing in the IM upgrade and explore how these advantages could similarly apply to the NSC project.

(1) Alliancing promotes innovation through collaboration

The alignment of commercial and non-commercial incentives encourages parties to propose innovative solutions and collaborate as an integrated team throughout the project. Shared goals reduce the barriers to experimentation, which can lead to breakthroughs in design, materials, and project management. Indeed, in the early stages of the IM upgrade project, three mines with undetermined sizes, scope and risks were discovered and mine remediation works had to be conducted. Such works were unique because it was the “largest mine fill operation …undertaken by the road industry [in Australia]…with no previous project examples of this size or scope”.63 As the mine fill works were in the IM project’s “critical path, with the risk of penalties of up to [A]$1 million per day”,64 and the nature of the remediation works being highly complicated, the Origin Alliance had to generate significant innovations “across

61 Valerie Yuam, ‘North-South Corridor to Be Completed by 2029, Delay Due to Covid-19 & Tough Soil Conditions’ MustShareNews (Singapore, 4 July 2023) <https://mustsharenews.com/north-south-corridor-delay/> accessed 31 March 2025

62 Lee Nian Tjoe, ‘Road Tunnel Portion of North-South Corridor Delayed by Two Years to 2029’ The Straits Times (Singapore, 4 July 2023) <https://www.straitstimes.com/singapore/transport/road-tunnel-portion-ofnorthsouth-corridor-delayed-by-two-years-to-2029> accessed 31 March 2025

63 Origin Alliance (n 53) 7.

64 ibid. The IM project appears to have adopted a ‘Critical Path Method’ project schedule. Here, ‘critical path’ refers to the sequence of works that have to be completed in order for the project to be delivered at its earliest possible date.

a variety of disciplines including rock mechanics, mine engineering, soil/structure interaction, soil mechanics and geotechnical…[and]…mine gas and groundwater management”. 65 To address these complications, Origin Alliance formed a sub-alliance with a specialist mine fill company to fill three mines within the stipulated timeframe and budget. This could only be achieved because of the “[i]nnovative construction staging using targeting and raked drilling techniques to eliminate a potential program gap of 12 months”.66

In a similar vein, the NSC project requires innovation and a collaborative team-integrated effort due to construction of tunnels and roads in a dense and urban setting, with tough soil conditions. 67 Indeed, despite construction commencing since 2018, the project is currently delayed for up to three years, with growing complaints from residents and businesses about the “noise, vibrations and traffic diversions” located along the NSC.68 In addressing these concerns, the former Transport Minister Mr S. Iswaran simply noted that, “the noise of construction will likely decrease after the completion of foundation works in two years”.69 The Land Transport Authority of Singapore also simply stated that its contractors will “[deploy] noise barriers, noise enclosures and fit mufflers on machinery to reduce noise levels”. 70 Instead of relying on standard mitigation measures, the Origin Alliance demonstrated how project stakeholders could collaborate, share knowledge, and develop innovative approaches to address these soil and noise complications of the NSC project more effectively. For example, a small-scale alliance could be established involving soil experts, engineers and on-site builders within the NSC project to tackle challenging soil conditions. As a result, this sub-alliance could drive innovative solutions to expedite foundation work, helping the project to meet its targeted timeline. Ultimately, this challenge presents an opportunity for the NSC project team to develop unique approaches in constructing Singapore’s first integrated transport corridor. If successful, it could serve as an invaluable blueprint for similar projects in the future.

65 ibid.

66 ibid.

67 Yuam (n 61).

68 Kok Yufeng, ‘North-South Corridor: 3 Key Gripes from Residents and How LTA is Dealing with Them’ The Straits Times (Singapore, 25 January 2023) <https://www.straitstimes.com/singapore/transport/northsouthcorridor-3-key-gripes-from-residents-and-how-lta-is-dealing-with-them> accessed 31 March 2025.

69 Yuam (n 61).

70 ibid.

(2)

Alliancing

provides flexibility and responsiveness

Given the high level of integration and collaboration, alliancing allows teams to adapt more quickly to changes in scope and unexpected difficulties. This flexibility is particularly valuable in complex or high-risk projects, where unforeseen conditions often arise, including inclement weather and design and construction challenges. For example, floods in Queensland in January 2011 had submerged about 40 percent of the IM construction site over four days.71 While the structural integrity of the main motorway was largely unaffected, remediation works were required for one area, which took about 10 months to complete. 72 To address the clean-up consequences left by the flood, the Origin Alliance provided additional manpower and transport to assist the community while establishing a flood mitigation team to restore the main project offices to workable state. 73 With an integrated team and ‘no-blame’ culture being instilled in all participants of the alliance from the “[a]lliance manager through to the youngest apprentice” in the IM upgrade project,74 this demonstrated the benefits of alliancing in promptly and collaboratively responding to the delays caused by the flooding and ensure the project remains on track.

Being a country with tropical climate, Singapore is susceptible to inclement weather especially during the monsoon season, characterised by “heavy rains, strong winds, and unpredictable weather patterns”.75 While flooding from the monsoon season is an occasional occurrence in Singapore, it is likely to increase in frequency and intensity due to climate change, 76 posing significant risks to infrastructure projects such as the NSC project. Indeed, in 2010, two bouts of monsoon rain caused flooding along Orchard Road, inundating the basements of older buildings and leading to insurance claims for property and vehicle damage totaling S$23

71 Origin Alliance (n 53) 9.

72 ibid.

73 ibid.

74 ibid 4.

75 ‘Adapting Construction Schedules for the Monsoon Season’(YantraLive, 19 July 2024) <https://www.yantralive.com/blog/2024/07/19/adapting-construction-schedules-for-the-monsoonseason/> accessed 2 April 2025.

76 Ang Hwee Min, ‘CNA Explains: Why Singapore and Southeast Asia Could See a Wetter, Rainier End to 2024’ Channel News Asia (Singapore, 18 October 2024) <https://www.channelnewsasia.com/singapore/laninasingapore- flooding-monsoon-rain-wet-weather-southeast-asia-4683466> accessed 2 April 2025.

million (approximately US$17 million). 77 With the NSC project involving extensive road tunnelling and construction close to urban areas and Singapore’s high-density landscape, flooding or weather- related disruptions could lead to severe project delays and safety hazards. Adopting alliancing could significantly benefit the NSC project by enhancing flexibility and real-time adaptability to Singapore’s unpredictable weather patterns. Like the Origin Alliance’s response to the Queensland floods, a dedicated team within the NSC alliance could be established to manage flood-related risks and coordinate recovery efforts. This team would proactively design effective drainage solutions and implement flood mitigation strategies to protect the work site and surrounding areas. The collaborative nature of alliancing would facilitate communication among contractors, engineers, and government agencies, enabling all stakeholders to quickly align strategies to minimise downtime and safety risks.

(C) Obstacles hindering alliancing in Singapore

Two main obstacles that prevent alliancing from being adopted in Singapore are organisational inertia and questions over whether alliancing is truly cost-saving or offers ‘value for money’.

(1) Organisational inertia

As mentioned above,78 collaborative contracting as a contracting methodology has been highly encouraged by the Singapore Government and lauded by academics, yet its use remains relatively uncommon in the construction industry in Singapore. Reasons for this lack of adoption could be largely attributed to organisational inertia. A study published in 2020 found that the biggest barrier to adopting collaborative contracting is the inherent difficulties in changing the organisational culture within Singapore’s construction industry. 79 Indeed, Singapore’s construction industry is known for its risk-averse culture and hesitancy about adopting change, 80 with local players likely to be resistant to adopting unconventional collaborative contracting methods like alliancing.

77 Asit K Biswas and Cecilia Tortajada, ‘Commentary: How Prepared is Singapore for the Next Flash Flood?’ Channel News Asia (Singapore, 17 September 2020) <https://www.channelnewsasia.com/commentary/singaporeflash-flood- rain-weather-climate-change-drain-prevent-592186> accessed 15 July 2025.

78 See Part I.

79 Zhang and others (n 4) 3214.

80 Ng Jun Sen, ‘Construction Sector Must Face Up to Reality: Minister’ The Straits Times (Singapore, 26 June 2017) 1.

(2) Whether alliancing is cost-saving or ‘value for money’

A common criticism about alliancing is that it may not truly save costs or offer ‘value for money’ (‘VfM’). VfM has been internationally recognised as the “critical foundation of decisionmaking in government contracting” which denotes a broad net measure where social and policy objectives are judged against the cost in achieving those objectives.81 Unlike the oft-quoted promise that alliancing helps save costs for the project, the first independent report produced by the Victorian Department of Treasury in 2009 found that, in reality, a non-price competition approach used in alliances resulted in suppliers earning higher profits while assuming lower risk, while clients received less value for money.82 Considering the possibility that alliancing might not yield greater VfM if a non-price competition approach is taken, and the long-standing and continued success of most of the public sector projects being delivered in Singapore,83 it is reasonable that alliancing might not be as readily adopted in Singapore. However, if the alliancing model incorporates a price-competitive process, along with considerations such as the contractor’s ability to integrate well into the alliancing team, this concern about reduced value for money could potentially be overcome.84

Notwithstanding these obstacles, alliancing is likely to remain highly beneficial for complex, long-term public sector road and tunnelling projects that require innovative solutions. With the NSC project being Singapore’s first integrated road project valued at a hefty price of S$7.47 billion and an urgent time frame to achieve practical completion, alliancing remains worthy of consideration to deliver the NSC project successfully.

IV. Conclusion

The adoption of alliancing as a contracting methodology for Singapore’s NSC integrated road project presents a compelling case for enhancing project outcomes. Despite the infrequent use of collaborative contracting in Singapore, the benefits of alliancing have been demonstrated

81 Department of Treasury and Finance Victoria, National Alliance Contracting Guidelines: Guidance Note 4 Reporting Value-for-Money Outcomes (Report, September 2015) 14.

82 Tamburro and Wood (n 21).

83 Building and Construction Authority of Singapore, ‘Steady Demand for the Construction Sector Projected for 2024’ (15 January 2024) accessed 2 April 2025.

84 Tamburro and Wood (n 21) 80

through successful applications in complex projects like Queensland’s IM upgrade. This underscores its potential to foster innovation, flexibility, and collaboration among stakeholders within and beyond the alliance. By aligning commercial interests and minimising adversarial relationships, alliancing can effectively address the unique challenges posed by Singapore’s dense urban environment and unpredictable weather patterns. While concerns about costeffectiveness and organisational inertia exist, the distinctive features of alliancing, such as its risk sharing, no-blame and collaborative culture, can facilitate the development of innovative solutions necessary for the successful completion of the NSC project. Therefore, embracing alliancing could not only streamline the construction process but also set a precedent for future public sector road, highway and tunnelling projects in Singapore, ultimately contributing to a more resilient and adaptive infrastructure landscape

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