I. Framing the issues
International law is one of the few stages on which a small state like Singapore can be said to be equal to other states, and it is in Singapore’s interest to play by the rules of international law and demand that others do so. Against this backdrop, one might be tempted to criticize Singapore’s courts for not engaging sufficiently with international law – specifically, international human rights law.
One can certainly see force in the argument that Singapore should engage more strongly with human rights norms. But it does not follow that the Singapore courts should. While international law is vital to Singapore, in line with the constitution’s vision of the separation of powers (in turn based on the Westminster common law tradition), Singapore’s engagement with international law takes place primarily at the legislative and executive levels. It is primarily for the legislature to translate international law rules into domestic law. While the courts can give effect to rules of international law as part of the common law, the common law can be overridden by legislation.
Singapore’s political branches have stressed the need for national sovereignty and therefore space to realize various ideals (especially those relating to human rights) in a way that suits Singapore’s particular circumstances.Footnote 1 Therefore, there are many international human rights treaties – such as the International Covenant on Civil and Political RightsFootnote 2 (ICCPR) and the International Covenant on Economic, Social and Cultural RightsFootnote 3 (ICESCR) – which Singapore has not entered into or ratified. Therefore, those who criticize Singaporean courts for not being more receptive to international law norms are often barking up the wrong tree: the courts have done all they can, and if anything, the target of criticism should be the political branches of the state, who are responsible for deciding which treaties to sign (or not), how to draft legislation, and whether to do so in a manner that leaves space for the operation of international law.
This is not to say that the courts are beyond criticism. But we must distinguish between (unsound) criticisms of the courts for not going beyond the constitutional limits of what they can do with international law, and criticisms of the courts for how they discharge their constitutional functions vis-à-vis international law (which are indeed properly directed at the courts).
Therefore, the case study of Singapore is a useful qualification to this special issue’s aim of studying the “interaction between international law and domestic constitutional law”Footnote 4 through the lens of “judicial engagement with international law”.Footnote 5 Of course, constitutional law “determine[s] the room for manoeuvre for State institutions, including as far as decisions relating to international law and the operation of international regimes are concerned”.Footnote 6 But the courts themselves are State institutions. Not only does international law constrain the political branches through the courts; the political branches also constrain what the courts can do with international law. Thus, what we learn about Singapore’s “attitudes, perceptions, and practices of international law”Footnote 7 comes not from “constitutional engagement through the courts”,Footnote 8 but rather from the limits to such engagement, and the reasons for such limits.
The case study of Singapore also shows that we should not fixate on case law engaging international law issues to the exclusion of other state action. After all, international law is binding on states, not on specific organs of states. Of course, it would be wrong to neglect analyzing judicial engagement with international law altogether. But the conclusion to that analysis may well be that the courts’ role is not a major part of the puzzle of understanding Singapore’s engagement with international law. If we were to focus only on the courts’ output, we would not have a complete picture.
Moreover, we should not fixate on case law that relates explicitly to issues involving the Constitution of the Republic of Singapore (Constitution), or even public law issues. Lying beneath all state actions – even those relating to private or commercial law – is a substratum of assumptions as to what the various state actors can constitutionally do. Even a private dispute before the courts (about, say, contract law) that involves international law involves a constitutional issue, namely, the status of international law in private law and the court’s power to give effect to international law.
The aim of this article is not to cast doubt on the utility of the project of the guest editors of this special issue, but rather to put it into perspective. To do this, it will be necessary first to lay the groundwork by sketching the history of Singapore’s engagement with international law against the backdrop of the history of Singapore’s constitutional order. As we will then see from an overview of the cases – including cases not involving constitutional law as traditionally conceived – in which counsel had attempted to raise international law arguments and/or the courts had detailed international law issues on their own accord, two connected themes will emerge: first, Singapore’s approach to the separation of powers; second, the role of legislative and constitutional texts in constraining the use to which international law arguments can be put. In addition, there are other factors explaining the state of play; these, too, will be explored.
What emerges is a symmetry between the political branches’ and the courts’ approaches towards international law: both strongly uphold international law norms relating to national sovereignty and the comity of nations; both draw on international law in other areas, such as human rights and child welfare, as inspiration to develop domestic law; and both engage seriously with concepts in international human rights law even if they are not binding on Singapore, while considering that their ultimate duty is to advance a uniquely Singaporean vision of a model of rights protection.
II. The canvas: international law, Singapore’s history, and the Constitution
A. International law as the bedrock of the Singaporean state
If the Constitution is the foundation of Singapore’s legal system, international law is the bedrock that supports that foundation. Indeed, Singapore’s participation in international law is logically prior to the existence of the Constitution. This may explain why Singapore’s Foreign Minister, speaking in 2020, used the phrase “the sacred document on which [Singapore] draws [its] Independence” to refer not to the Constitution, but instead to an international treaty: the Independence of Singapore Agreement (Agreement).Footnote 9
That Agreement, dated 9 August 1965, is a treaty between Singapore and the Federation of Malaysia, by which Singapore separated from Malaysia and became an independent sovereign state.Footnote 10 Immediately after that, as a matter of domestic Singapore law, it was “political fact”Footnote 11 and not posited law that was the order of the day. This explains why it was not until December 1965 – months after Malaysia formally recognized Singapore as a sovereign state on 9 August,Footnote 12 and after Singapore was admitted as a United Nations (UN) member state in September – that Singapore’s constitutional documents stated that Singapore was an independent sovereign stateFootnote 13 Singapore’s very survival as a small sovereign state took priority over the need for doctrinal neatness in Singaporean constitutional law.
This explains why the Singapore Constitution does not say much about international law. From the beginning, international law was seen as the guarantor of Singapore’s survival on the international stage as a sovereign state, not a source of norms to be applied in the domestic plane. This is why the Constitution “contains no express provision regulating the reception of international law or establishing the hierarchical ordering of international and domestic law”,Footnote 14 and does not commit Singapore to join any international organization, enter into any treaty, or adopt any international law norm.Footnote 15 Nor is it the case that provisions of Singapore’s Constitution – specifically, those relating to fundamental rights – are based on provisions in international law instruments. When Singapore became independent, the most salient rule of international law was simply that state sovereignty is to be respected.
The next milestone is in 1972, when Articles 6 and 7 of the Constitution were introduced.Footnote 16 These provisions show that even seven years after independence, Singapore’s priority was survival as a sovereign state, and that Singapore’s engagement with international law had to be seen in that light. Article 6 provides against divesting Singapore of its sovereignty. Article 7 qualifies this by affirming that Singapore’s “participating or co-operating in, or contributing towards, any scheme, venture, project, enterprise or undertaking” or “entering into any treaty, agreement, contract, pact or other arrangement” with any sovereign state, with the aim (or effect) of conferring an advantage on Singapore, does not violate Singapore’s sovereignty. It is telling that Article 7 encompasses international arrangements that confer a “benefit of any kind” or are otherwise “advantageous” to “Singapore or any association, body or organisation therein”. None of this had to do with international law qua law; rather, it related to domestic benefits which were guaranteed using international law as a tool.
B. International law had no role in Singapore’s constitutional rights provisions
Of course, international law does much more than merely guarantee the existence of sovereign states as such; it is capable of having an influence on the content of a state’s domestic constitutional law. But this was not the case in Singapore, whose Constitution not only does not refer to international law but does not even incorporate it.
Singapore’s Constitution “did not have a storied birth”,Footnote 17 and had instead been “hastily cobbled together”Footnote 18 after Singapore became independent from Malaysia in 1965. For present purposes, this has two implications. First, this “cobbl[ing] together” took place at a time when securing Singapore’s very survival, rather than its flourishing, was the key priority. Second, there is much in the Constitution that is not the product of Singaporean thought. This includes the portions relating to constitutional rights – which, in many other states, are the main stages on which international law has a role to play.
Singapore’s constitutional rights provisions were largely copied from the 1957 Federal Constitution of Malaya. When those provisions were drafted, there was little, if any, discussion of international law. Even as international human rights discourse was rejuvenated by contemporary developments such as the entry into force of the European Convention of Human Rights (ECHR) in 1953 (which, incidentally, did apply to Singapore and Malaya when they were under British rule),Footnote 19 the concern of the Malayan drafters was not so much with rights such as freedom of expression or the right to life, but rather how the state could be organized such that different groups of people, with different races and religious beliefs, could get along as best as possible. There was simply little, if any, discussion of international law.
If the drafters of the 1957 Malayan constitution were focusing on what they saw as an indigenous problem with an indigenous solution, the same can be said of the work of Singapore’s 1966 Constitutional Commission, whose task was to propose constitutional changes to safeguard the “rights of the racial, linguistic and religious minorities” of Singapore.Footnote 20 The Commission drew on developments in foreign jurisdictions for inspiration, but, again, made virtually no reference to international law. In short, international law never had much of an impact on the content of the Constitution.
C. International law post-independence: primarily a guarantor of sovereignty
Neither did international law have an impact in the years immediately following independence through indigenous development or reform, nor even in the decades after that. In engaging in international relations, the need to preserve national sovereignty has remained the priority of the Singaporean state. This translates into a “fundamental principle of … non-interference in the internal affairs of other states”,Footnote 21 which in turn informs Singapore’s engagement with international law. For the Singaporean state, the primary purpose of international law is to regulate Singapore’s relations with other sovereign states and protect Singapore’s sovereignty, and not to influence how things are managed within Singapore. This explains why Singapore became a party to several international treaties relating to environmental issues and commerce,Footnote 22 counter-terrorism,Footnote 23 and the control of weaponsFootnote 24 – all matters governing the survival (including economic survival) of Singapore – but relatively few human rights treaties.
Having laid the groundwork, we now turn to examine the courts’ limited role in international law in constitutional cases, particularly those that engage issues relating to human rights.
III. Shades of judicial engagement with international law
A. The basic rules and their rationale
A preliminary point must be made: In keeping with the common law tradition, Singapore has no separate constitutional court. Therefore, there is no formal demarcation between “constitutional” and “non-constitutional” cases. Indeed, one may argue that there are no “constitutional cases”; there are only constitutional issues, and Singapore courts must be prepared for the possibility that constitutional issues could arise in any sort of case. This includes cases with elements of international law, since the status of international law is itself a constitutional issue.
That is not to say that the courts have no expertise in international law.Footnote 25 Not only do the courts consider international law issues in great detail; Singaporean judges are keenly engaged with international law outside the courtroom. Singaporean judges speak at international law events and conferences.Footnote 26 The previous Chief Justice, Chan Sek Keong,Footnote 27 was part of the team that successfully represented Singapore before the International Court of Justice (ICJ) in a dispute with Malaysia over which state had sovereignty over various islands.Footnote 28 He was also part of the team that represented Singapore before the International Tribunal for the Law of the Sea in a dispute with Malaysia over Singapore’s land reclamation activities, which ultimately ended in a settlement.Footnote 29 The present Chief Justice, Sundaresh Menon, was the first person from outside the executive branch of the state to deliver the annual S Rajaratnam Lecture, which is attended by (among others) public servants and diplomats.Footnote 30 He also served as a judge in the final round of the 2024 Jessup moot court competition.Footnote 31
For completeness, it is worth noting that Singapore’s courts are well-resourced. In the financial year ending in 2023, the Judiciary spent S$423 million. Judges in the Supreme Court (which consists of the General and Appellate Divisions of the High Court, and the Court of Appeal) – themselves highly qualified – are assisted by law clerks drawn from among top university graduates. The Supreme Courts and State Courts (Singapore’s major subordinate courts) have well-resourced libraries, and judges receive extensive training through the Singapore Judicial College.Footnote 32 In other words, the judges – who already possess expertise – have all the resources they need to conduct the necessary extensive research to give due consideration to international law matters.
The courts’ expertise is important given that neither the Constitution nor ordinary legislation say anything about the status of international law rules in Singapore.Footnote 33 It is therefore up to judge-made law to provide the answer. That having been said, the Singapore courts’ approach towards international law is not entirely the product of local development. Instead, it has grown from English common law principles which Singapore inherited.
One of these principles is the dualist system, according to which
a. The courts apply domestic law. If at all international law is relevant, it is only because it has been incorporated into domestic law, or because it is relevant to the interpretation of domestic law.
b. The courts can incorporate a rule of customary international law as part of the common law. However, like all rules of the common law, that rule can be overridden by legislation.
c. International treaties are not “self-executing”; it is for Parliament to pass legislation to give effect to Singapore’s treaty obligations.
d. The courts will strive to interpret domestic legislation and the Constitution in a manner that better gives effect to Singapore’s international law obligations. But the courts’ remit is only to interpret legislation, not to rewrite it.
e. Rules of international law do not themselves have the status of constitutional rules. Therefore, the courts will not strike down a domestic statute merely because it (allegedly) contravenes international law.
Therefore, the courts often deal with international law only indirectly, through domestic statutes that embody international law rules. For example, the courts have convicted people for crimes under legislation which embodies various UN Security Council regulations (such as those imposing sanctions)Footnote 34 and interpreted arbitration legislation in line with its purpose of giving effect to international treaties.Footnote 35 There is also legislation which does not reproduce international law rules, but still has the aim or effect of fulfilling Singapore’s international law obligations. These are not seen as “constitutional” issues, because from the courts’ point of view, all they are doing is applying domestic law.
The courts have the power to incorporate certain rules of international law into the common law. This power comes to the fore in areas not dominated by legislation. Even then, the courts take a circumspect view of their powers in certain areas. They distinguish between “legal” matters with which the courts are concerned, and “extra-legal” matters which are better left to the executive or the legislature.Footnote 36 Even within the sphere of the “legal”, in areas where the courts have the power to develop the law in a certain manner, they may still take the view that they ought not to: they would rather leave the entire matter to the legislature, than to engage in piecemeal reform that would leave the law in an unsatisfactory state.Footnote 37 Further, while the courts take the lead in interpreting legislation, and they do so against the backdrop of certain fundamental constitutional principles, they shy away from an “interpretation” that would amount, in substance, to rewriting the legislation. All this applies not only to ordinary legislation but also to the Constitution.
One might criticize the courts’ circumspection in developing the common law. But such criticisms are really criticisms of the courts’ views of the separation of powers generally; they are not specific to the courts’ treatment of international law in particular.
B. Domestic statutes and international law
To the contrary, the courts have engaged keenly with international law, beginning with the most basic constitutional question of what status international law has in Singapore. Shortly after Singapore’s independence, the Singapore courts affirmed their role in Singapore’s compliance with certain international-law rules. In Olofsen,Footnote 38 the High Court held that a claim against the Government of Malaysia (in this case, for false imprisonment) could not be maintained once Singapore had become independent, even though the claim began when Singapore was a state in Malaysia. This was because the Government of Malaysia was now the government of a foreign state, and hence, at common law, immune from suit in the Singapore courts. In this way, the courts tacitly recognized a common law rule that sought to give effect to international comity.
The courts were also cognizant of Singapore’s treaty obligations. We see this in Krofan Stanislaus Footnote 39 and Osman,Footnote 40 which involved Indonesian soldiers who, as part of Indonesia’s campaign of terrorist violence in opposition to the existence of Malaysia, disguised themselves as civilians and carried explosives in Singapore. The Federal CourtFootnote 41 engaged with the issue of whether the accused persons could enjoy protection as prisoners of war under the relevant Geneva Convention relating to prisoners of war on the assumption that it was part of the law applicable in Singapore (eventually concluding that they could not as they were tantamount to “spies”).Footnote 42
Yet the courts were equally cognizant that rules of international law could only apply if those rules had been made “part of the law of Singapore”. International law, if not embodied in domestic legislation, can at most be part of domestic common law – which, in turn, is overridden by legislation. We see this in the 1989 case of Tan Ah Yeo,Footnote 43 which involved a claim for negligence. The issue was this: the claim was filed more than two years after the collision took place. According to the Collision Convention 1910 (Collision Convention), to which Singapore was a party, a claim was time-barred after two years if it related to “a collision … between sea-going vessels or between sea-going vessels and vessels of inland navigation”.Footnote 44 The plaintiff argued that the collision did not fall within this description: it was between two “vessels of inland navigation”.
But there was a twist. Singapore had a domestic statute called the Maritime Conventions Act (Act) (which it had inherited from the United Kingdom). The purpose of that statute was to give domestic effect to the Collision Convention. But that statute said that a claim was time-barred after two years if it related to damage caused “by the fault of two or more vessels” – without specifying what kind of vessels.
The court held that the word in the Act – “vessels” – was clear enough, meaning that the claim was time-barred.Footnote 45 The court rejected the argument that word should be interpreted as referring – like the Collision Convention – only to a case where at least one of the vessels was a “sea-going vesse[l]”.
Tan Ah Yeo affirmed that while “an Act should be interpreted to conform with international law”,Footnote 46 it is ultimately the Act to which the court must give effect.Footnote 47 If (as with the Act) domestic legislation goes beyond what international law requires,Footnote 48 it cannot be argued that international law limits the scope of the domestic legislation.
Similarly, if domestic legislation falls short of what international law requires, even if that puts Singapore in breach of international law, then that is a problem that exists “on the international plane”Footnote 49; it is for international law mechanisms (if any), not the domestic courts, to address that breach. Ultimately, “if indeed in a particular case there is a real conflict between international law and national law”, and that conflict cannot be removed by interpreting the domestic legislation, then “national law must prevail”.Footnote 50
C. The Constitution and international law
1. The text of the Constitution trumps international law
Let us now turn to cases involving constitutional issues. A preliminary observation must be made: because of the circumstances (described above) in which the Singapore Constitution came to be what it is today, several issues which one may describe as being small-c constitutional – such as rights relating to labour and education – have little to do with the Singapore Constitution, and so would not be considered “constitutional issues” in Singapore law.
The Singapore courts take the same approach towards interpreting the Constitution and interpreting ordinary statutes: the courts’ task is to give effect to the original intention of the legislature (which has the power to amend the Constitution). The courts determine this intention primarily by reference to the legislative text, but in the case of ambiguity – and rights provisions in constitutions are almost always ambiguous – by reference to the purpose of the enactment, making such use of extrinsic materials as is appropriate.Footnote 51
The rights in the Constitution, in turn, are intrinsically circumscribed, often by design.Footnote 52 Consider the right to freedom of assembly in Article 14(1)(b) of the Constitution. Article 14(2)(b) goes on to provide that “Parliament may by law impose” on this right “such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof or public order”. This gives a wide berth to Parliament, out of a desire to keep “essentially political” questions out of courts.Footnote 53 In particular, it does not say that Parliament may only impose, for example (as the ICCPR says), restrictions which are “necessary in a democratic society”.Footnote 54 Therefore – putting aside the fact that Singapore is not a party to the ICCPR – there is simply no scope for the courts applying, by analogy, ICCPR jurisprudence on what kinds of state action would be “necessary” as opposed to disproportionate. Similarly, Singapore’s Constitution, in providing that “[n]o person shall be deprived of his life … save in accordance with law”, implies that it is possible for the law to provide for a person to be deprived of life; this forecloses arguments, based on international law or otherwise, that the death penalty is in itself unconstitutional.Footnote 55
Nor can the courts necessarily apply, by analogy, foreign case law that embodies doctrines which are similar to international law doctrines.Footnote 56 For example, in Chee Soon Juan,Footnote 57 the High Court held that Canadian case law relating to section 2(b) of the Canadian Charter of Rights and Freedoms (which relates to, among other things, the freedom of expression) was not relevant to interpreting Singapore’s provision on that freedom. This was because the Canadian Charter, but not the Singapore Constitution, stated that the freedom could be “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.Footnote 58 In other words, the Canadian Charter imports a proportionality test similar to that under the ICCPR, but, for the same reason that ICCPR jurisprudence on proportionality would not apply to Singapore, neither would Canadian jurisprudence.
Another factor limiting the relevance of international law is that international law played little (if any) role in the drafting of the Constitution, which instead drew on the domestic laws of other countries.Footnote 59 In The Online Citizen, a case involving the freedom of expression (Article 14(1)(a)), the Court of Appeal held that an English case that applied the right in the ECHR to “freedom of expression” was of “limited assistance” because the right in the ECHR includes the “freedom to hold opinions” – in other words, the freedom of belief – which the Singapore Constitution does not mention.Footnote 60
This is not to say that the courts necessarily take a rights-restrictive approach; they interpret rights “generously”Footnote 61 insofar as the text allows them to. For example, in Wham Kwok Han Jolovan, the Court of Appeal accepted that a law would be unconstitutional if it restricts the freedom of assembly (Article 14(1)(b)) even if Parliament considered it “necessary or expedient” on (for example) “public order” grounds if the law had nothing at all to do with public order.Footnote 62 The courts have held – on the basis of Blackstone’s Commentaries, to which the phrase “life [and] personal liberty” in Article 9(1) of the Constitution may be traced – that Article 9(1) also encompasses a right to bodily integrity.Footnote 63 The constitutional right to equality (Article 12(1)) is not circumscribed by such wide restrictions as we see in the text of (say) Article 14, giving the courts greater latitude to fashion a test that in its view avoids “denud[ing] [the provision] of real force”.Footnote 64 More generally, the old idea that the Constitution is “primarily to be interpreted within its own four walls and not in the light of analogies drawn from other countries”Footnote 65 has quietly fallen out of favour.
Even then, there is a clear textual fence circumscribing what the courts can do. This is not the product of a “parochialist”Footnote 66 attitude, but rather of the courts’ vision of the separation of powers, which requires keen sensitivity to the constitutional text, coupled with the drafting history of that text. One may call this “formalis[m]” or excessive deference to the legislature,Footnote 67 but such criticisms are not specific to the courts’ treatment of international law.
A case in point is Yong Vui Kong (2010),Footnote 68 where counsel argued (among other things) that the death penalty was “inhuman punishment”. The Court of Appeal pointed out that Singapore’s Constitution simply “does not contain any express prohibition against inhuman punishment”,Footnote 69 and that this was a deliberate drafting choice.Footnote 70 It is certainly arguable (even if not conclusively so) that customary international law sees the death penalty as a prohibited form of “cruel punishment”,Footnote 71 and one may criticize the Singapore government for taking a contrary view. But the main possible target of criticism of the courts is their reasoning that the Constitution could not contain an implied right against “cruel” or “inhuman” punishment simply because the drafters could have considered including an express right to that effect but did not.Footnote 72 This is, again, a criticism of judicial philosophy towards constitutional interpretation generally, not towards international law. When the court said that:
reference to international human rights norms would not be appropriate where the express wording of the Singapore Constitution is not amenable to the incorporation of the international norms in question, or where Singapore’s constitutional history is such as to militate against the incorporation of those international norms,Footnote 73
its observations may as well have been about any foreign jurisprudence.
2. Capital and corporal punishment: the primacy of domestic law; international law as a soft check
It is now useful to consider in greater detail cases involving the death penalty, which are where litigants have (unsurprisingly) made the greatest efforts to augment their constitutional arguments using international law. These cases have involved the death penalty for trafficking in drugs in certain quantities (which was mandatory until 2012, when the law was changed such that a person who does nothing more than to move the drugs from one place to another and whom the Public Prosecutor certifies as having “substantively assisted” the authoritiesFootnote 74 may, in the court’s discretion, be sentenced to life imprisonment and caning instead.)
The first key case is Nguyen Tuong Van, in which the accused person had made two arguments. First, he argued that Article 36(1) of the Vienna Convention on Consular Relations 1963 (VCCR) – which requires that if a foreign national is arrested, his state’s “consular post” must be notified “without delay” – had been breached. At the time, Singapore had not yet acceded to the VCCR. Nonetheless, the accused argued that Article 36(1) had had the status of customary international law.
Interestingly, the High Court – though it ultimately held that there had been no “delay”Footnote 75 – accepted that “Art 36(1) applies in Singapore”.Footnote 76 As to the admissibility of a statement recorded in breach of Article 36(1), the Court of Appeal cited the test of Article 36(2) and the ICJ’s decision in Avena Footnote 77 for the proposition that the admissibility of a statement depends on the receiving state’s law of evidence.Footnote 78 One wonders why. If the Singapore law on admissibility applies only because international law says so, it follows that international law can in principle trump domestic law in a case before the domestic courts.Footnote 79
This implication does not sit well with how both courts treated the second argument – that execution by hanging violated customary international law. Both courts held that it does not, but even if it did, this would have been irrelevant: “if a statute” – such as that providing for the death penalty – “is unambiguous, its provisions must be followed even if they are contrary to international law”.Footnote 80
Whatever one may make of this inconsistency, the courts’ approach to the first point is an aberration. The courts cling to a dualist view of international law, which is in turn grounded in their conception of the separation of powersFootnote 81 coupled with their approach to constitutional and statutory interpretation. The question of the Singapore courts’ approach to international law, then, cannot be separated from broader questions of the courts’ approach towards constitutional adjudication generally.
We see this in Yong Vui Kong (2010), where the Court of Appeal again considered the relationship between the mandatory death penalty and international law. This time, the argument made more explicit reference to Article 9(1) of the Constitution: “No person shall be deprived of his life or personal liberty save in accordance with law”. The court did not deny that “domestic law, including the Singapore Constitution, should, as far as possible, be interpreted consistently with Singapore’s international legal obligations”.Footnote 82 But as we have seen,Footnote 83 the court held that such interpretation was not possible given the drafting history of Article 9(1). Any international law rule against the mandatory death penalty could therefore at most take effect as a rule of the common law, but that would in turn be overridden by the legislation providing to the contrary.
In Yong Vui Kong (2015), the court similarly rejected arguments that caning was unconstitutional because it amounted to “torture”. The court added that it made no difference whether the international law rule against torture was a peremptory (jus cogens) norm.Footnote 84 That label, said the court, only indicates the status of a rule in the system of international law – for example, that it trumps a treaty to the contrary.Footnote 85 That says nothing about domestic law, which operates at the “intra-state” level and not at the level of “international relations between states”.Footnote 86 Indeed, even if Singapore were to adopt a monist system, that would merely mean that rules of international law automatically became part of Singapore law; that in itself would not say anything about the status of the international law rule within the domestic legal system.Footnote 87
Had the courts stopped there, one might see some force in Thio’s view, expressed in 2004, that:
[w]hile readily borrowing from foreign commercial case law, Singapore courts display a distinct reticence in cases concerning public law values, where the emphasis is on ‘localizing’ rather than ‘globalizing’ case-law jurisprudence in favour of communitarian or collectivist ‘Singapore’ or ‘Asian’ values, in the name of cultural self-determination.Footnote 88
The differing approaches towards the two are not now, as Thio put it, “schizophrenic”.Footnote 89 To claim that the Singapore courts see international law as a “helpful influence” when it comes to areas of law relating to “business or commercial rights”, but not those involving “human or constitutional rights”Footnote 90 would be too simplistic. If “foreign commercial case law” – whether part of international law or otherwise – is cited more frequently by the Singapore courts, it is either because Singapore’s commercial law is contained largely in the common law, and so can be shaped and reshaped by the courts without the constraints of a statutory text; because Singapore’s commercial law shares certain values with those espoused by sources of international law (such as the jurisprudence of the European Court of Human Rights (ECtHR) on procedural rights),Footnote 91 or because it is based on a statute which is meant to mirror an international treaty, such as the International Arbitration Act 1994 which is based on the UNCITRAL Model Law on International Commercial Arbitration.Footnote 92
In any event – as Thio’s updated view in 2015 recognizesFootnote 93 – even when dealing with constitutional issues, the courts have not been reticent. In Nguyen Tuong Van and the Yong Vui Kong cases, the courts did not stop at saying that international law would not trump domestic law. The courts went on to analyze the international law rules and their possible effects anyway, grappling with the arguments presented to them as best as possible; they often – as a commentator said of Yong Vui Kong – “examin[e] and explain[n] a number of legal questions that [are] related to [a] case but not strictly necessary for its determination”.Footnote 94
A clear example is Yong Vui Kong (2015), in which the court took pains to point out that, as a matter of international law, caning was not torture. It is easy to see why they did: it would be undesirable to leave room for doubt as to whether torture was being carried out in Singapore under colour of law. But the court did not merely pay lip service: it engaged thoroughly and in detail with the text of the Third Geneva Convention; decisions of the ICJ, the ECtHR, the Inter-American Court of Human Rights, the African Commission on Human and Peoples’ Rights, and the International Criminal Tribunal for the former Yugoslavia; the drafting history of the Convention Against TortureFootnote 95 (despite the fact that Singapore is not a party to that Convention); and decisions of courts of states whose constitutions outlaw “inhuman punishment” or “torture”. Only then did the Singapore court conclude that caning, as carried out in Singapore, is not torture.
So the courts do not merely give international law a token mention in the service of parochial exceptionalism. The courts do seriously consider international law and take seriously the possibility that it has an impact on what decision they should reach. It is just that, ultimately, there are limits to what the courts can do with international law.
Even then, there is an important signalling effect at play. The courts consider international law arguments at length even when they would ultimately not assist the party who invoked them. This practice of the courts could go the other way. If a domestic statute is arguably incompatible with international law, the courts stand ready to evaluate the arguments – and declare the incompatibility if any. The courts might not be able to disapply the statute, but the signal will have been sent: the Legislature would have violated international law. That possibility, in turn, keeps the Legislature on its toes: it may be able to override international law in the domestic courts, but any violation of international law will not go unnoticed.
3. The constitutional rights to equality, and non-discrimination: preserving the political branches’ wide decisional space
But what if there is no textual bar to interpreting a provision of the Constitution in a manner that better comports with international law than one that does not? Consider Article 12 of the Constitution:
12. – (1) All persons are equal before the law and entitled to the equal protection of the law.
(2) Except as expressly authorized 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.
Article 12 was the main basis for (unsuccessful) challenges to the formerFootnote 96 section 377A of the Penal Code 1871, which criminalized acts of “gross indecency” between one man and another. In Lim Meng Suang v. AG, the Court of Appeal rightly summarily dismissed arguments based on Article 12(2). While Singapore has acceded to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Article 12(2), whose text contains an exhaustive list of prohibited grounds of discrimination, cannot be read as prohibiting discrimination on the grounds of “gender, sexual orientation and gender identity”.Footnote 97 What is more remarkable is that the court did not draw on CEDAW to interpret Article 12(1) – which would not have involved a clash with the constitutional text.
The reason why the court did not consider CEDAW in interpreting Article 12(1) is not so much to do with international law, but rather the court’s view of the separation of powers. The court noted that Article 12(1) is “framed at a very general level” compared to Article 12(2), and remarked that Article 12(1) “appears to be more of a declaratory (as well as aspirational) statement of principles, as opposed to a set of specific legal criteria as such”.Footnote 98 Therefore, while the court was free to fashion a test to determine whether state action violated Article 12(1), it considered that it should be wary of becoming a “mini-legislature”.Footnote 99 Hence, the court refused to take into account what it called “extra-legal” matters.Footnote 100
These concerns would explain why the court adopted a test borrowed from Indian constitutional law – called the “reasonable classification test” – which is relatively easy for a law to pass: a law would only violate Article 12(1) if it was either (a) “patently illogical and/or incoherent”Footnote 101 (for example, because of a “clear disconnect”Footnote 102 between the law and its purported aim), or (b) substantively so “unreasonable” that there could be “no reasonable dispute … from a moral, political and/or ethical point of view (or, for that matter, any other point of view)” about its reasonableness.Footnote 103 Section 377A did not fail this test: there was a logical link between the law and its aim, which was to uphold a certain view of morality.Footnote 104
In a later case, Ong Ming Johnson, the High Court rejected an argument that Article 12(1) should be interpreted in line with a principle of “proportionality” borrowed from international law. This, the court said, was a principle drawn from the ICCPR and the ECHR, to which Singapore is not a party. Therefore, said the court, “[i]t would be inappropriate to import such a test [of proportionality] into Singapore law”.Footnote 105 The obvious counter-argument is: even if Singapore was not obliged to apply such a test, the courts were still at liberty to do so (to the extent that the language of the Constitution could accommodate it). The real reason for rejecting the test, then, is a fear that a proportionality test might infringe on the separation of powersFootnote 106 by causing the court to consider “matters which are rightfully the province of the Legislature [or Executive] rather than the Judiciary”.Footnote 107 This concern is not specific to international law; it is, at base, a concern about the vision of the separation of powers in Singaporean domestic law.Footnote 108
This is not to say that constitutional issues relating to international law are merely a variation on domestic constitutional themes. Rather, international law colours the way in which these constitutional themes express themselves.
Consider Taw Cheng Kong,Footnote 109 which involved a Singaporean who had allegedly taken a bribe overseas.Footnote 110 The Prevention of Corruption Act criminalizes bribery, and section 37 states: “… where an offence under this Act is committed by a citizen of Singapore in any place outside Singapore, he may be dealt with in respect of that offence as if it had been committed in Singapore.” Mr Taw argued that section 37 violated Article 12(1) of the Constitution: “All persons are equal before the law and entitled to the equal protection of the law.”Footnote 111 He argued that section 37 discriminated against citizens.
The High Court agreed that the different treatment of citizens was unjustifiable: if the aim was to “obliterate corruption in Singapore”, why target only corrupt acts with an impact in Singapore performed overseas by citizens, but not non-citizens?Footnote 112
The Court of Appeal did not disagree with the High Court’s basic framework, which, broadly speaking, requires every instance of unequal treatment to be sufficiently justified. The reason why the Court of Appeal overturned the High Court’s decision was that, in its view, there was a sufficient justification for the law treating Singapore citizens differently from non-citizens,Footnote 113 holding that the High Court had neglected one important matter: the doctrine of international comity, according to which “other States may legitimately take umbrage if a country attempts to regulate matters taking place wholly or substantially within their territories”.Footnote 114 That being so, there was a justification for section 37 omitting to criminalize corruption by non-Singaporeans done outside Singapore.Footnote 115
This case did not involve the courts giving direct effect to a rule of international law. Neither did it involve the use of international law as a tool to interpret the Constitution. Rather, the court married the international law principle of comity with the unspoken assumption that it is primarily for the political branches of the state to decide how to give effect to that principle, and so augmented the domestic constitutional principle that matters of broad public policy generally are primarily for the political branches of the state to regulate. (Indeed, in this writer’s submission, the courts would not declare section 37 of the Prevention of Corruption Act under-inclusive merely because there are other statutes which criminalize certain acts done overseas by Singapore citizens and permanent residents who are foreign nationals.Footnote 116)
IV. The backdrop to the case law
So far, in search of the reasons for the courts’ circumspection in applying international law, we have considered what the courts themselves have said. However, our account of the courts’ approaches will not be complete unless we look beyond the case law itself to consider the roles of the political branches, the content of international law, and structural factors limiting the number of constitutional issues that are ventilated in court in the first place.
A. The political branches’ palette
The Singapore courts defer to the political branches in matters of broad public policy.Footnote 117 But one may ask why the courts’ doing so often coincide with their declining to adopt certain international law norms. The answer lies in the political branches’ approaches to international law.
The political branches are not resistant to international law generally. However, beyond the basic rules contained in undisputed international custom, the political branches prioritize securing Singapore’s survival as a sovereign state and “cooperation” with other states in “managing tensions and addressing global trans-boundary problems”,Footnote 118 and not tapping on international law as a source of influence on Singapore’s domestic law. These governmental priorities find expression in Singapore’s limited engagement with certain international treaties – particularly its “lukewarm reception to [international] human rights norms”Footnote 119 – which in turn restricts the courts’ powers to draw on those treaties in the face of domestic legislation to the contrary. To illustrate this point, it will now be necessary to turn our attention towards a brief analysis of the political branches’ engagement with international law.
The theme of survivalism, which we have seen to have been dominant in the early years of Singapore’s independence, has continued to express itself in Singapore’s engagement with international law several decades post-independence. We see this in the Singaporean state’s constant insistence on other states performing their international obligations – most notably, Singapore’s repeated expressions of insistence on Malaysia complying with the “water agreements”, which are treaties by which Malaysia sells raw water to Singapore in return for Singapore selling treated water to Malaysia.Footnote 120 The “sanctity”Footnote 121 of these agreements is a matter of national survival, not merely because something as fundamental as drinking water is at stake, but more generally because Singapore has an interest in an international order in which states uphold their obligations.Footnote 122
This stance illustrates a second point: Singapore does not take on international law obligations unless it is able and willing to uphold them.Footnote 123 And Singapore is unwilling to take on various obligations under human rights treaties. This is not because of indifference to the causes behind those treatiesFootnote 124: for example, Singapore has, of its own accord, committed to withdrawing its reservation to Article 25(e) of the Convention on the Rights of Persons with DisabilitiesFootnote 125 (CRPD) – which creates an exception to the obligation to “[p]rohibit discrimination against persons with disabilities in the provision of health insurance, and life insurance” for “private insurers” – after it put in place guidelines on the “fair treatment” of people with disabilities by insurers.Footnote 126 Rather, the reasons for not acceding to human rights treaties often relate, not to the human rights norms themselves, but rather the question of who gets to decide the precise content of those norms – which ties back to the theme of survivalism. In line with its focus on national sovereignty, the government is anxious to ensure that Singapore is “no one’s proxy, no one’s stalking horse”.Footnote 127
The Singaporean state engages with international human rights law: at the UN Universal Periodic Review (UPR), it takes pains to cast its efforts as advancing the various rights in the Universal Declaration of Human RightsFootnote 128 (UDHR), and when Singapore takes different views from other states, Singapore seeks to justify the differences rather than summarily wave international human rights law away as irrelevant. That said, the state engages with international human rights law with the significant caveat that “human rights do not exist in a vacuum but must take into account a country’s specific circumstances including its cultural, social, economic, and historical contexts”.Footnote 129 This would explain Singapore’s various reservations to the International Covenant on the Elimination of All Forms of Racial Discrimination, Convention on the Rights of the Child (CRC), CRPD, and CEDAW (and its non-accession to the Optional Protocols to the CRPD and CEDAW for fear of “foreign interference” through supranational dispute resolution processesFootnote 130 that may fail to recognize Singapore’s “specific circumstances”), as well as Singapore’s non-accession to the ICCPR and ICESCR in favour of instruments such as the 2012 ASEAN Human Rights DeclarationFootnote 131 which declare[s]” and “affirms” certain rights but against the backdrop of the ASEAN Charter’s “cal[l] for the ‘respect for the independence, sovereignty, equality, territorial integrity and national identity of all ASEAN Member States’” and “‘non-interference in the internal affairs’ of other members”.Footnote 132
Further, it is domestic concerns that have shaped Singapore’s international law commitments, and not vice versa. If international law has furnished an impetus for domestic law to change, this has generally not been acknowledged. For example, Singapore’s Constitution used to provide that a person born overseas to a Singaporean father and non-Singaporean mother automatically becomes a citizen by descent, but not a person born overseas to a non-Singaporean father and Singaporean mother.Footnote 133 This was due to the alleged “Asian tradition where husbands are the heads of the households”.Footnote 134 This provision was changed in 2004, but only with effect for children born on or after 15 May 2004.Footnote 135 The government – perhaps, for reasons related to those set out in the previous paragraph – did not cite CEDAW as an impetus for this change, either in ParliamentFootnote 136 or in its November 2004 CEDAW report.Footnote 137 Yet, following the change to the Constitution, Singapore withdrew its reservation to CEDAW relating to “the conferment, acquisitions and loss of citizenship of women who have acquired such citizenship by marriage and of children born outside Singapore”, albeit slightly later (in 2007).Footnote 138
While a fuller account of the Singaporean political branches’ engagement with international law is outside the scope of this paper, the point for present purposes is simply this: Because of the dualist system, the courts’ engagement with international law cannot be separated from the content of domestic law, which in turn is a function of how far the political branches commit (or do not commit) Singapore to certain international law rules and transpose (or do not transpose) those rules into domestic law.
B. The limited content of customary international law
We have so far spoken of treaty law. While customary international law is of course binding on Singapore, it is – as international lawyers know – difficult to show that an international custom has crystallized into a rule of international law. When determining the precise content of customary international law rules, the Singapore courts – like international tribunals – look for evidence of “extensive and virtually uniform state practice”Footnote 139 and opinio juris; they will not stop at considering, say, the conduct of a mere “majority of States”.Footnote 140
The tone had been set by the Privy Council in the 1981 case of Haw Tua Tau.Footnote 141 That case concerned the constitutional provision stating that a person could only be deprived of life or liberty “in accordance with law”. According to the Privy Council in a previous case, the word “law” here refers only to a law that complies with certain “fundamental rules of natural justice” referring to fair procedure.Footnote 142 The Privy Council did not discuss whether international law could have a bearing on what these rules are. It did not need to, because that did not matter. The accused persons claimed that the right to silence had been such a rule. But, said the Privy Council, sources of international law such as the UDHR and the ECHR did not recognize such a right in the first place, so the question of their relevance simply did not arise.Footnote 143
The Singapore courts have followed suit. In Chan Kin Foo, the High Court rejected an argument that the compulsory acquisition of property was a violation of international law, not only because Singaporean legislation trumps customary international law but because there is no relevant customary international law rule: “There is no state practice or opinio juris which supports a right to property. In fact, state practice indicates the opposite conclusion”.Footnote 144
Finally, even if something is a rule of customary international law, there remains the question of how it is to be interpreted. For example, even if international law requires that the death penalty only be imposed “for the most serious crimes”Footnote 145 (i.e. “intentional crimes with lethal or other extremely grave consequences”),Footnote 146 it is a question of interpretation whether (say) drug trafficking is one of the “most serious crimes”. The Singapore government evidently takes the view that it is, as drug addiction can cause “ruination” and “disaster”, making drug traffickers “merchant[s] of ‘living death’”.Footnote 147 (Even if the word “intentional” refers to “intentional loss of life”,Footnote 148 there remains the interpretive question of whether the word “intentional” encompasses indirect or oblique intention.) It is also questionable whether the mandatory death penalty would necessarily breach such a ruleFootnote 149: one may well argue that there are some offences which, by reason of certain inherent characteristics, are in the “most serious crimes” category regardless of any case-specific mitigating circumstances.Footnote 150
C. The relatively small number of constitutional cases
Despite a “general increase in the number of public law judgments issued and the length of these judgments”,Footnote 151 public law is hardly as large a field as other areas of Singapore law. Some argue that in Singapore, there is a culture of seeking to resolve rights-related disputes through political rather than judicial processes.Footnote 152 Whether or not such a culture exists, the opportunities are certainly there, and are often taken up. It is difficult to estimate just how many disputes could have gone to court, but were not because they were resolved through other means. This points towards a methodological difficulty with extrapolating from the courts’ engagement with international law to Singapore’s engagement with international law.
Two examples will suffice. In 2002, there was a dispute on whether Muslim girls in public schools should be allowed to wear headscarves (tudung).Footnote 153 The dispute could have gone to court – and, if it had, it may well have involved international law arguments relating to the freedom of religion. But it did not: no such case was filed, and the controversy played out only in the political arena and eventually “died down”.Footnote 154 In 2015, a dispute relating to a restriction on playing live music at the Thaipusam procession in Singapore arose; the High Court held that the restriction was a lawful restriction on the freedom of religion. The applicants appealed, but dropped the appeal after the issue was resolved through negotiation and dialogue outside of the courtroom.Footnote 155
There are also restrictions on who can raise a constitutional issue before the courts, and when. The law on standing is complex,Footnote 156 but in short it is this: except in rare exceptional cases, only a person whose rights are directly affected by legislation or executive action can bring a challenge. Further, the Singapore courts do not perform abstract review: one must demonstrate that one’s rights are presently being violated, or at most that one faces a “real and credible threat of prosecution” for present behaviour.Footnote 157 Again, when considering the Singapore courts’ engagement with international law in their decisions, one must not lose sight of procedural rules restricting what cases can come before the courts for decision in the first place.
V. Conclusions
A. Symmetry between the courts’ and the political branches’ approaches towards international law
One might gain the impression that international law has a relatively small role to play in Singapore’s constitutional law, and be tempted to explain this by reference to certain attributes of Singapore’s constitutional order. But that would miss the point: international law has a relatively small role before Singapore’s courts generally. Because international law rules are binding on states, not on constitutional actors within states, we ought not to be surprised that the Singapore courts play an important role in engaging with international law but not a leading one.
This is not to say that the courts are affected by contextual factors in a merely passive manner, as though they are merely buffeted by the winds of domestic and international politics. To the contrary, the courts are well-aware that they – side by side with the Executive and the Legislature – are “co-equal branches of government, each with its own constitutional territory and institutional space”.Footnote 158 The courts accordingly play their part in the “joint enterprise of governing”Footnote 159 bearing in mind certain written and unwritten constitutional rules and principles – as do the other branches of the state.
This would explain why the courts, far from being indifferent to international law, have engaged with it even in areas of the law which do not directly raise what, in Singapore, count as constitutional issues. (As we have seen, even then, there is always the question of the interface between domestic law and international law – which is a constitutional question – lurking in the background.) For example, in AZB, the High Court cited the CRC as support for the courts being open to interviewing children in order to make better decisions on custody, care and control.Footnote 160 The courts also cite Singapore’s international law obligations as a reason to, for example, “regard offences of pollution with the utmost gravity” and impose stiff sentences accordingly,Footnote 161 and have similarly considered that criminal conduct that leads to a breach of Singapore’s international obligations (such as sanctions against North Korea) “creates the potential for harm affecting our relations with other nations and with international organisations”, “would undermine our national interests and participation in the international sphere”,Footnote 162 and hence (at least, in the case of a breach of sanctions) is generally punished with imprisonment and not a mere fine.Footnote 163
What emerges, then, is an interesting symmetry between the political branches’ and the courts’ dealings with international law. Just as the political branches focus on norms relating to national sovereignty and the orderly co-existence of sovereign states, so do the Singapore courts take the initiative to uphold these norms – as in Olofsen. The Legislature draws on international law as inspiration for what are ultimately domestic efforts, and the courts have recognized this in cases like AZB and Yong Vui Kong (2015), which recognize the role of international law as an aid to interpreting domestic legislation. Just as the Legislature engages with international law relating to human rights but on terms specific to the political branches’ vision of human rights in Singapore, the Singapore courts engage with international law to the extent that this can be reconciled with the courts’ ultimate imperative of fidelity to the Constitution of Singapore. The Government engages seriously with the UPR, signalling a commitment to taking human rights discourse seriously even as it takes the position that certain human rights norms espoused by others do not necessarily apply to Singapore; the courts, even while holding that certain international law rules are not binding as part of Singapore law, do not cursorily wave international human rights law away, but instead engage seriously with its content (as in Yong Vui Kong (2010)), to the extent of exhorting the Executive to exercise its discretionary powers in a manner consistent with international law (as in Yong Vui Kong (2015)).
B. Putting the picture in perspective: reflections on methodology
There is something paradoxical about studying international law before the courts: the more the state complies with international law (or any law, for that matter), the fewer opportunities there will be for contestation through the courts, and hence, the greater the temptation to argue that the courts have taken a muted approach towards international law. Perhaps one should be careful what one wishes for: the more the courts find themselves addressing disputes over international law, the more cause for concern we have that the state might be acting unlawfully. It is probably a good thing that the Singapore courts have not had the occasion to discuss the precise scope of the rights against “slavery” (Article 10(1) of the Constitution) or being “banished or excluded from Singapore” (Article 13(1) of the Constitution), relevant as international law would be to such discussion.
A further point of scholarly methodology is that a jurisdiction’s approach towards international law is often an instance of principles of that jurisdiction’s law generally. For example, it is possible (as in Singapore) that international law plays a limited role in constitutional interpretation for the same reasons that it plays a limited role in the interpretation of any written law. The constitutional comparativist must also note that different jurisdictions, with their own constitutional traditions, may well have different ideas of what counts as a constitutional issue.
Moreover, we have seen that focusing on international law before the courts would not paint a complete picture of the role of (and limits to the role of) international law vis-à-vis the state generally. This point is particularly significant because courts are not the only ones with the power to make decisions that affect people and organizations. In Singapore (as in common law systems generally) it is common for the Legislature to delegate discretionary decision-making powers – such as powers to grant, deny, restrict, or revoke licences – to executive officers (over whom the courts play a supervisory role, but whom the courts do not have the power to overrule merely because of disagreement on the merits). It may well be that there are legal systems in which the functions played by such executive officers in Singapore would be labelled judicial, not executive, functions; this would affect one’s analysis of judicial engagement with international law.
Even if we focus on courts, we cannot consider courts’ behaviour only by considering judges’ output: we must not neglect the role of counsel. It is relatively easy to study decisions made by courts as a response to counsel’s arguments relating to international law; it is harder to study the role that international law could have played in cases where lawyers have not raised international law arguments, and harder yet to hypothesize about cases that could have been brought to court, but were not at all. This issue is of course not unique to Singapore, but its effect is amplified by the generally small number of constitutional cases in Singapore. And in these cases, much turns on the way in which litigants choose to plead their cases.
None of this is to say that it is wrong to inquire into the role of international law before constitutional courts. The point is simply that the answer necessarily takes us beyond international law and beyond the courts, and may even call into account assumptions typically made in different jurisdictions about what counts as “law”, what counts as “constitutional”, and what counts as a “court”. It is hoped that this article has contributed in this regard.
Acknowledgments
The author is grateful to Ngoc Son BUI, Maartje DE VISSER, and all participants at the “International Law in Asian Constitutional Courts” workshop. All errors and omissions remain his own.
Funding statement
None.
Competing interests
None.
Benjamin Joshua ONG is Assistant Professor of law at the Yong Pung How School of Law, Singapore Management University.
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