The continuing resistance to foreign law in constitutional adjudication in Singapore (original) (raw)

Constitutional Interpretation in Singapore, 2016

Abstract

There is, by now, a small but significant body of literature that has documented how courts in Singapore have engaged (or, to put it more accurately, resisted engaging) with foreign law in constitutional cases. In a previous work published in a volume to mark 40 years of the Singapore Constitution, I documented trends in use of foreign law across the tenures of Singapore’s first three Chief Justices (Chief Justices Wee, Yong and Chan). This analysis showed that while judges in Singapore have generally resisted engaging with foreign law, the trend has varied over time, with some Chief Justices advocating an absolutist position (evident in Chief Justice Yong’s adoption of the ‘four walls’ doctrine) while others adopted a less equivocal position (evident in Chief Justice Wee’s relatively more nuanced resistance, usually backed by a more careful distinguishing of individual foreign cases). In this essay, for a volume that marks the 50th year of the adoption of the Singapore Constitution, I seek to update that analysis, focusing more closely on cases decided in recent years, especially since 2009. In this period, the Singapore courts have had occasion to reference foreign law in several cases, and this has in turn generated a fair amount of scholarly literature. My principal argument is that although the more recent trend shows some marked departures from the way foreign law was engaged earlier, these changes are, ultimately, more superficial than substantial. I argue that judges and courts engaged in constitutional adjudication in Singapore continue to resist the use of foreign and comparative law, to an extent that is quite remarkable, especially given Singapore’s common law heritage and the fact that in other branches of law, the traffic in comparative ideas and law has remained high. This makes the judiciary’s opposition to, and rejection of, comparative law in the arena of constitutional adjudication even more exceptional and striking. To build my argument and spell out its details, I will discuss and engage with the analysis of other scholars of Singapore constitutional law. The structure of this essay is as follows. In Section 2, I analyse the more recent literature on the Singapore judiciary’s use of foreign and international law in constitutional cases. While doing so, I will also outline the contours of my own argument and stance. In Section 3, I focus on two recent cases – Lim Meng Suang v. Attorney General and Yong Vui Kong v. Public Prosecutor – where the Singapore Court of Appeal had to respond to the citation of foreign and comparative law in rights cases. These cases dealt respectively, with a constitutional challenge to Singapore’s anti-sodomy law, Section 377A, and a constitutional challenge to the sentencing practice of caning in Singapore. In both these cases, the Singapore Court of Appeal ultimately resisted applying foreign and international law, showing some of the same tendencies that were on display during the height of the ‘Four Walls’ era. I will argue that the record of the Chan and Menon courts on the use of foreign law, while less absolutist than that of the Yong court, is nevertheless closer to the ‘resistance’ than the ‘engagement’ model articulated by Jackson. In the concluding section, I will offer some speculative thoughts on what might make Singapore judges consider a change in their stance towards foreign law.

Arun Thiruvengadam hasn't uploaded this paper.

Let Arun know you want this paper to be uploaded.

Ask for this paper to be uploaded.