EQUALITY UNDER THE SINGAPORE CONSTITUTION

Equal protection
12.(1) All persons are equal before the law and entitled to the equal
protection of the law.
(2) Except as expressly authorised by this Constitution, there shall be no
discrimination against citizens of Singapore on the ground only of religion,
race, descent or place of birth in any law or in the appointment to any office
or employment under a public authority or in the administration of any law
relating to the acquisition, holding or disposition of property or the establishing
or carrying on of any trade, business, profession, vocation or employment.
(3) This Article does not invalidate or prohibit
(a) any provision regulating personal law; or
(b) any provision or practice restricting office or employment connected with
the affairs of any religion, or of an institution managed by a group professing
any religion, to persons professing that religion.

Distinction between equal before the law and equal protection of the
law; but cases dont distinguish.
o Equality before the law equality in the enactment of laws.
o Equal protection of the law equality in the application of the
law.
On the ground only seems to suggest that if discrimination were
because of more than 1 factor, it would be allowed?
o A possible legislation contravening Art. 12(2) may be the HDB
racial quota that discriminates based on race alone.
o Also, does it mean that its a closed list? No, categories are
open for incremental judicial development!
Judicial approach.
o Model formal/thin equality.
o Meaning of Art. 12(1) approach to interpretation, concept of
equality.
o Presumption of constitutionality burden of proof, strength of
presumption.
o Doctrine of classification a judicial addition to the equal
protection provision.
Test rational nexus test.
Further developments.
o Level of evidence required to rebut the presumption of
constitutionality.
o Deference to legislature.

o Critique + reform?
THE PROBLEM OF CLASSIFICATION

Equal treatment does not mean all people should be treated alike, just
that those alike should be treated alike.
Under the doctrine of classification, one may, in certain instances,
discriminate between classes but no one within a particular class
should be singled out for discriminatory treatment.

MALAYSIAN CASES

Datuk Haji bin Harun Idris v. PP (1977)

o AP convicted for corruption for receiving bribes while in UMNO.
He appealed based on the constitutionality of s. 418, Malaysian
Criminal Procedure Code that allowed his case to be transferred
from the Subordinate Court to the High Court.
o HELD: s. 418A was merely procedural and question of
discrimination did not arise. Even if it were discriminatory, there
was reasonable classification and nexus between classification
and object of the law it classifies cases based on seriousness
of the offences.
o Equality before the law does not mean that all laws must be
general in character or universal in application.
o Parliament can make law in respect of a group or class of
persons provided that the classification was [1] rational, [2]
founded on an intelligible differentia that distinguishes persons
that are grouped together from others that are left out of the
group and [3] there must be a reasonable nexus between basis
of classification and object of discriminatory legislation.
Who should decide? Courts should determine the
reasonableness of classification.
Government of Malaysia v. VR Menon (1990)
o RP argues that the exclusion of foreign resident pensioners
under the Pensions Adjustment Act to deprive him from
additional benefits conferred contravened Art. 12.
o HELD: [1] Is the law discriminatory? [2] If discrimination
permissible? [3] Founded on intelligible differentia? [4]
Differentia has rational nexus to the object sought? On the facts,
passed all.
Public Prosecutor v. Harmenderpall Singh a/l Jagara Singh (2007)
o Issue is what a reasonable classification is. RP contended that
s. 41(5) of the Road Transport Act offended against the doctrine
of intelligible differentia, which formed an integral part of the Art.
12 because death alone as a factor to differentiate the

punishments was purely arbitrary and unreasonable when

viewed in relation with the social object sought to be achieved
by the Act, which is to protect 3rd parties from risks and not death
alone in the case of reckless and dangerous driving.
o HELD: Purpose of using a death factor is to differentiate and
measure the degree of recklessness and dangerous driving.
This is an intelligible differentia, it is not artificial.
o Next condition is whether the differentia has a rational nexus
with the object sought to be achieved. Act is meant to offer
protection, but effect varies in degree and nature, the extreme of
which is death.
SINGAPORE CASES
RATIONAL NEXUS TEST IN SINGAPORE

Rational classification test as historically derived from Indian decisions.

o Equality provision is qualified, discrimination is permitted, and
there can be lawful discrimination based on classification, hence
a few questions under a 3-stage analysis as seen primarily in
Taw Cheng Kong.
Ong Ah Chuan v. PP (1981)
o Appeal to Privy Council on constitutionality of s. 15, Misuse of
Drugs Act creating a presumption of trafficking.
o HELD: Reasonable classification (rational nexus) + presumption
of constitutionality.
Problems: Legislative object can be defined broadly vs.
narrowly, there is difficulty if rebutting the presumption,
and presumption applies to both testing the intelligible
differentia (presumption that differentia is intelligible) and
rational nexus (presumption that the legislature has
gotten it right).
o Equality before the law and equal protection requires that alike
should be compared with alike.
Prohibits laws which require that some individuals in a
single class should be treated by way of punishment
more harshly than others.
Does not prohibit discrimination when between one class
of individuals and another class.
o In this case, AP argued discrimination between class and class,
which is valid because the factor the legislature used to
constitute the dissimilarity is not purely arbitrary but bears a
reasonable relation to the social object of the law.
Taw Cheng Kong v. Public Prosecutor (1998) (High Court)

o AP convicted under s. 37, Prevention of Corruption Act where an

offence committed by a citizen outside Singapore would be dealt
with in respect of that offence as if it had been committed in
Singapore, argued that the Act was unconstitutional because it
derogates Art. 12.
o HELD: Principles of Constitutional Interpretation strong
presumption of constitutionality (applicant to establish that the
impugned statute violates the constitution), sui generis
interpretation (not limited by normal rules and maxims applicable
to interpretation of ordinary legislations), and court has duty to
protect fundamental liberties (will endeavour to give full effect to
Part IV rights).
o Purpose of Art. 12 3 forms of arbitrariness to be guarded
against.
[1] There must be a discernable basis of classification
must have common identifying mark and not an arbitrary
classification.
[2] All persons within a particular class must be treated in
the same way no arbitrary treatment within individuals
of the class.
[3] Basis of classification must not be arbitrary there
must be a reasonable nexus to the object of
legislative/executive action.
o Hence, 3 stage analysis:
[1] Whether law is discriminatory?
If yes, is it expressly allowed by the Constitution (Art.
12(2)).
If yes, the law is valid and there is a presumption
of constitutionality.
[2] If no (or not expressly allowed), whether
discrimination is founded on intelligible differentia
(consistent means of identifying persons discriminated
against e.g. race, gender, religion etc).
If no, the law is unconstitutional.
[3][i] If yes, whether persons falling in the class are
treated equally and [ii] whether discrimination
bears a reasonable/rational nexus to the object
of the statute hence, what is the object of the
statute? And is the basis of discrimination a
reasonable means of achieving the object?
o Must ask for (i) the object of the statute and
(ii) the basis of discrimination of whether it
is reasonable to achieve the objective.
o If yes, the law is constitutional.

o If no, the law is unconstitutional.

Reasonable nexus cannot be based on social
contract argument because social contract has
social and moral obligations, not legal obligations.
Parliaments classification cannot be over-inclusive
(catches persons not contemplated), or underinclusive (not catching persons falling within
mischief sought to be addressed), which it is both
in this case.
Strength of nexus between objective and
differentiation in this case not sufficient strong to
justify the derogation from constitutional freedom
insufficient just that the intelligible differentia in this
case is reasonable.
Public Prosecutor v. Taw Cheng Kong (1998) (Court of Appeal)
o HELD: There is reasonable nexus! Parliament drew the line
between citizens and non-citizens so as to observe international
comity and sovereignty of other nations, and the object of the
legislation must be balanced against Parliaments intention to
observe international comity (really? Should international
considerations be balanced against a fundamental constitutional
right?)
o Over and under-inclusiveness is ok since it would have in some
way furthered the objects of the Act.
o There is a very strong presumption of constitutionality,
which can only be rebutted if the law is plainly arbitrary on its
face. Court rejected the High Courts argument that examples of
arbitrariness is enough, instead, must adduce evidence that it
was enacted arbitrarily or had operated arbitrarily.
Evaluation of Taw Cheng Kongs High Court and Court of Appeal
decision.
o Main problem how does the court determine the legislative
object?
o [1] Importance of the definition of the object of the act.
High Court held that it was to obliterate corruption in
Singapore, and hence everyone within the country should
be targeted equally (whereas the law targeted only
Singaporeans).
Equality not that all persons are to be treated
alike, but rather, all persons within a particular
class/situation should be treated alike. No arbitrary
treatment between these persons.
Court of Appeal held that it was to obliterate corruption
within and outside Singapore, irrespective whether there

were harmful consequences within the national

boundaries or not.
High Courts decision more well-reasoned and
comprehensive (c.f. Court of Appeals we thought it
obvious).
o [2] Different interpretation of reasonable relation between
differentia and object of Act.
High Court emphasised reasonable nexus Act failed
because it was both over-inclusive and under-inclusive,
thus only went a little way in achieving legislative
objective.
Court of Appeal emphasised rational nexus (lower
threshold) Act constitutional because the rationale was
to observe international comity and sovereignty of other
nations, and as long as it goes some way to achieving
legislative objective, ok.
o [3] Presumption of constitutional validity.
High Court recognised need to balance presumption with
the need to give full effect to fundamental rights conferred
by Part IV.
Court of Appeal abandoned substantive balancing
approach, elevating presumption to a very strong one,
rebuttable only by evidence of arbitrariness.
Mohamed Emran bin Mohamed Ali v. Public Prosecutor (2008)
o Drug entrapment case. AP argued that Art. 12 was breached as
he was incited by the state agent to traffic in drugs while the
state agent is not charged. Whether there was intelligible
differentia and rational nexus justifying the Public Prosecutors
decision to prosecute entrapped drug traffickers but not bring
charges against state agent provocateurs.
o HELD: No contravention. There was intelligible differentia
between drug traffickers and state agents.
o Also, perfectly rational nexus because it is socially desirable and
laudable with the objective of containing the drug trade.
Ng Chye Huay v. Public Prosecutor (2006)
o Police discretion to grant permit for assemblies. Falungong
argued that other groups that assembled without permits were
not subject to investigation and arrest similar to that experienced
by them, violating Art. 12.
o HELD: Police have discretion to determine which particular
assemblies are especially likely to cause trouble. This is not
discriminatory. Rule lays down a blanket law (does not
specifically target Falungong gatherings) that was not
discriminatory.

Lo Pui Sang v. Mamata Kapildev Dave (Horizon Partners) (2008)

o Argued that en bloc sale rules of 80% discriminated against the
minority.
o HELD: Collective sale provision in the Land Titles (Strata) Act
because there was no discrimination from the outset of the
passing of the law. Law was enacted to apply to everyone
equality. Neither the legislature or the STB decides who the
minority will be, instead the minority discriminates themselves.