Reconsidering the Presumption of Constitutionality and Pre-Constitutional Legislation
The Presumption of Constitutionality is an oft-cited but seldom explored theme in Constitutional Law, and would appear to have been settled after the Court of Appeal decision in Lim Meng Suang & anor v Attorney-General. However, the recent Indian Supreme Court case of Navtej Singh Johar v Union of India may provide some impetus for re-visiting orthodoxy.
The presumption of constitutionality (the Presumption) is a perennial but under-explored theme in constitutional law in Singapore.1For an article that discusses the Presumption extensively, see Jack Tsen-Ta Lee, “Rethinking the Presumption of Constitutionality” in Constitutional Interpretation in Singapore: Theory and Practice (Jaclyn L Neo ed) (Routledge, 2016) 139. In a nutshell, the Presumption can best be described as one manifestation of a theory of judicial restraint. Together with the concept of non-justiciability, the Presumption is one of the starting points the Singapore Courts use to explain their reluctance to strike down laws passed by Parliament or to impugn executive action insofar as the exercise of constitutionally derived powers are concerned.
The rationale for the Presumption, which was described as a “strong” one, was explained thus by the Court of Appeal case of Public Prosecutor v Taw Cheng Kong2(1998) SGCA 37. (Taw Cheng Kong CA) (citing the Malaysian case of PP v Su Liang Yu):
“[T]he first duty of the court which is really a rule of common sense is to examine the purpose and policy of the statute … In its approach to the problem the court ought, prima facie, to lean in favour of constitutionality and should support the legislation if it is possible to do so on any reasonable ground and it is for the party who attacks the validity of the legislation to place all materials before the court to show either the enactment or the exercise of the power under it is arbitrary and unsupportable.”
In respect of pre-Constitutional enactments, the Presumption is said, by the Court of Appeal in Lim Meng Suang & anor v Attorney-General (Lim Meng Suang), to not apply “as strongly”.3(2014) SGCA 53 at (107).
The recent Indian Supreme Court case of Navtej Singh Johar v. Union of India4W.P. (Crl.) No. 76 of 2016. (Johar), which struck down section 377 of the Indian Penal Code, takes a different approach worth considering in respect of applying the Presumption to pre-Constitutional legislation.
This article explores and explains the different manifestations of the Presumption, discusses the approach in Johar, and the possibility and potential implications of a Singapore Court considering the Johar approach.
Apart from operating as a normative framework for constitutional interpretation, correctly applying the Presumption can arguably said to be of some practical importance. At this juncture, a slightly more involved review of the factual substratum of the cases in which the Presumption was applied is apposite in illustrating how different lenses of interpreting the Presumption may affect the incidence of its application.
One of the earliest and fullest explications of how to apply the Presumption was set out by the Singapore Court of Appeal in the 1977 case of Lee Keng Guan and others v Public Prosecutor.5(1977) SGCA 2.
In Lee Keng Guan, the first appellant was jointly tried and convicted of armed robbery under the Armed Offences Act 1973 and sentenced to death. In his appeal against conviction, the first appellant raised a constitutional point under the equal protection clause of the Malaysian Constitution (which, by virtue of section 6 of the Republic of Singapore Act, was and is valid law in Singapore).
The first Appellant argued that the death-prescribing section of the Armed Offences Act was ultra vires the Constitution as there was a Penal Code Offence (the then section 324 of the Penal Code) which prescribed a sentence of imprisonment or a fine for an offence of identical actus reus. By virtue of the foregoing, the first Appellant argued that the public prosecutor was given an unfettered discretion or an arbitrary power to pick and choose as against those persons which of the two statutory provisions to apply.6Supra at 18 (a) and (b).
In dismissing the first Appellant’s argument and holding that the death-prescribing provision of the Armed Offences Act was not ultra vires the Constitution, the Court of Appeal applied the Presumption in a formulation set out in the Indian Supreme Court case of Ram Krishna Dalmia v Justice Tendolkar:7AIR 1958 SC 538.
“(b) that there is always a presumption in favour of the constitutionality of an enactment and this burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;
(c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;
(e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the time and may assume every state of facts which can be conceived existing at the time of legislation;
(f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporation to hostile or discriminating legislation.”
Although the death-prescribing provision of the Armed Offences Act and its precursor statute, the 1947 Armed Offences Ordinance, were pre-Constitutional (ie, enacted before the adoption of a written constitution), the Court of Appeal was able to apply the presumption of constitutionality to the Armed Offences Act as the Act was re-enacted in contemporary form by the Singapore Parliament in 1973. The Court of Appeal thus concluded that, “because of the history and prevailing circumstances from time to time which are matters of common knowledge and common report, successive Legislatures from 1947 have felt the need and have enacted legislation to deal exclusively with the unlawful possession, carrying and use of arms and to prescribe the appropriate punishment for these crimes.”8Lee Keng Guan at (26).
Left open in Lee Keng Guan is the interesting question of whether or not the Court of Appeal would have altered its analysis if the pre-Constitutional Armed Offences Ordinance was not amended and updated by a post-constitutional Parliament (ie, if the Presumption had to be applied in respect of pre-Constitutional legislation).
The Court of Appeal, in the case of, Taw Cheng Kong CA, had the occasion to engage with a more involved analysis of the Presumption. Although both the High Court and the Court of Appeal agreed that the presumption of constitutional validity was a “strong” one,9Taw Cheng Kong HC at (16) and Taw Cheng Kong CA at (60). both courts arrived at different conclusions. The High Court held that section 37 of the Prevention of Corruption Act was ultra vires the legislative powers of Parliament and was therefore unconstitutional.
At the High Court, the Honourable Judge of Appeal Karthigesu permitted a challenge to the constitutional validity of the extra-territorial provision contained in section 37 of the Prevention of Corruption Act. The High Court arrived at this outcome despite considering “the strong presumption of constitutionality … and honoured doctrine of parliamentary supremacy.”10Taw Cheng Kong v Public Prosecutor (1998) 1 SLR(R) 78 (Taw Cheng Kong HC), at (82).
The reasoning applied by Karthigesu JA to invalidate section 37 of the Prevention of Corruption Act was based primarily on a textual analysis of section 6(3) of the Republic of Singapore Independence Act, which appeared to exclude the power of the Parliament of Singapore to pass legislation with extraterritorial effect.
Disagreeing with Karthigesu JA’s interpretation of the effect of section 6(3) of the Republic of Singapore Independence Act, the Honourable Chief Justice Yong Pung How reversed the High Court’s decision by reasoning that Singapore as a sovereign state had plenary powers to enact extraterritorial legislation.
Although it was not strictly necessary to do so to decide the issue, the Court of Appeal took the opportunity to elaborate on how the Presumption, as set out in Lee Keng Guan, was intended to operate in practice.
The Court of Appeal held that to discharge the burden of rebutting the presumption, it would be necessary for the person challenging the law to adduce some material or factual evidence to show that it was enacted arbitrarily or had operated arbitrarily.11Taw Cheng Kong CA at (80). This dicta may suggest that, absent the Presumption, a challenge to the constitutional validity of a piece of legislation may not require such material or factual evidence of arbitrariness, and that arbitrariness could be gleaned from a textual and contextual analysis of the impugned statute.
The Presumption and Pre-Constitutional Legislation
The question of the applicability of the Presumption becomes more vexed if one considers it in the context of pre-Constitutional legislation.
Undergirding the rationale of the Presumption is, in part, the assumption that Parliament must be intended to have exercised its legislative powers with the rights of citizens as set out in the Constitution under consideration. As such, Parliament is presumed not to have legislated contra legem the Constitution.
However, what of legislation passed pre-Independence and pre-Constitution?
This is precisely one of the questions the Court of Appeal had to consider in Lim Meng Suang v Attorney-General12(2015) 1 SLR 26. (Lim Meng Suang CA), in relation to section 377A of the Penal Code (section 377A) which criminalises acts of “gross indecency” between consenting adult males. Section 377A was introduced into the Straits Settlements in 1938 via a Penal Code Amendment Ordinance, and exists unamended to date.
The appellants in Lim Meng Suang CA argued that the Presumption does not apply to pre-Constitutional legislation, but the Attorney-General argued that the Presumption applied, but did not operate as strongly as it would, compared to post-Independence legislation. Accepting the Respondent’s position, the Court of Appeal held that “it would … be too artificial and too extreme to discard the presumption of constitutionality altogether in so far as pre-Independence laws are concerned.”13Lim Meng Suang CA at (107).
Johar, decided by the Indian Supreme Court, provides a well-reasoned counterpoint to the Lim Meng Suang CA’s approach to the Presumption. At issue in Johar was the colonial-era section 377 of the Indian Penal Code, which proscribes carnal intercourse “against the order of nature”. In assessing the applicability of the Presumption, Justice R.F Nariman began his analysis from the starting point that the Presumption originated from Parliament’s awareness of its constitutional limitations when enacting laws. It therefore stood to reason that, where a “pre-constitution law is made by either a foreign legislature or body, none of these parameters obtain”.14See Nariman J’s decision in Johar at (93). A similar approach to the applicability to the Presumption in relation to pre-Constitutional legislation is explained in Jack Lee’s article, see supra Note 1.
It is respectfully submitted that the reasoning in Johar rendered by the highest appellate court in India, a jurisdiction which shares a similar colonial history with Singapore, is a logical and persuasive analysis for the Singapore Court of Appeal to consider in the future, insofar as the Presumption may be applied to pre-Independence and pre-Constitutional legislation.
The Johar approach to the Presumption in respect of pre-Constitutional legislation is also not inconsistent with the Singapore courts’ stated deference to Parliament in areas involving statutes relating to public policy in the socio-economic and legal spheres.15For a recent explication of such an approach, see the decision of Chief Justice Sundaresh Menon sitting in UKM v Attorney-General (2018) SGHCF 18. In such situations, Chief Justice Sundaresh Menon, sitting on a three-judge bench of the High Court Family Decision in the case of UKM v Attorney-General, has recently cautioned that the courts should, “as a general rule, be very cautious about resting its decision on public policy.”16Ibid at (112). The underlying reasoning for this is one of legitimacy derived from Parliamentary sovereignty and democratic legitimacy.
As Chief Justice Menon explains, “[t]hat is because Parliament has already spoken. In areas of statutory law, the Legislature, being that democratically elected body which is charged specifically with deliberating matters of public policy, representing the polity’s interests, and formulating rules to govern all aspects of society, would have already put in place a legislative regime which embeds the public policies which the Legislature regards as relevant and which have been subject to democratic debate”.17Ibid at (115).
A fortiori, where laws are passed prior to the constitution of a democratically elected body reflecting the polity’s interest in the context of a constitutional order, it is arguable that the Presumption and deference due to pre-Constitutional statutes does not and should not apply.
If the approach in Johar is followed by the Singapore Court of Appeal in a future case, and considered in conjunction with dicta in Lee Keng Guan and Taw Cheng Kong CA, the evidential burden on applicants seeking to challenge pre-Constitutional legislation may be lightened significantly. It may open the door to the courts re-assessing the weight and validity of arguments in such cases, although of course, the final analysis of the substantive constitutional arguments brought against such legislation falls to be determined on the merits of specific cases.
|↑1||For an article that discusses the Presumption extensively, see Jack Tsen-Ta Lee, “Rethinking the Presumption of Constitutionality” in Constitutional Interpretation in Singapore: Theory and Practice (Jaclyn L Neo ed) (Routledge, 2016) 139.|
|↑2||(1998) SGCA 37.|
|↑3||(2014) SGCA 53 at (107).|
|↑4||W.P. (Crl.) No. 76 of 2016.|
|↑5||(1977) SGCA 2.|
|↑6||Supra at 18 (a) and (b).|
|↑7||AIR 1958 SC 538.|
|↑8||Lee Keng Guan at (26).|
|↑9||Taw Cheng Kong HC at (16) and Taw Cheng Kong CA at (60).|
|↑10||Taw Cheng Kong v Public Prosecutor (1998) 1 SLR(R) 78 (Taw Cheng Kong HC), at (82).|
|↑11||Taw Cheng Kong CA at (80).|
|↑12||(2015) 1 SLR 26.|
|↑13||Lim Meng Suang CA at (107).|
|↑14||See Nariman J’s decision in Johar at (93). A similar approach to the applicability to the Presumption in relation to pre-Constitutional legislation is explained in Jack Lee’s article, see supra Note 1.|
|↑15||For a recent explication of such an approach, see the decision of Chief Justice Sundaresh Menon sitting in UKM v Attorney-General (2018) SGHCF 18.|
|↑16||Ibid at (112).|
|↑17||Ibid at (115).|