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Grounds publishedDecided 21 Aug 2012
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Court of Appeal

Tan Eng Hong v Attorney-General

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[2012] SGCA 45Case no. Civil Appeal No 50 of 2011

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  1. V K Rajah JA (delivering the judgment of the court):

  2. Introduction

  3. [1] Ought an action which is not certain to fail, brought by an applicant who has locus standi, be peremptorily struck out by the High Court even though it accepts that it has jurisdiction to hear the action? This is one of the pivotal issues at the heart of this appeal by Tan Eng Hong (“Tan”) against the decision of the High Court judge (“the Judge”) in Tan Eng Hong v Attorney-General [2011] 3 SLR 320 (“the Judgment”) striking out his application in Originating Summons No 994 of 2010 for declaratory relief (“the Application”).

  4. [2] The Application under O 15 r 16 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”) was brought by Tan to ask the court to declare s 377A of the Penal Code (Cap 224, 2008 Rev Ed) (“the current Penal Code”) unconstitutional under the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint). For ease of reference, this version of the Constitution of the Republic of Singapore as well as its predecessor versions (where relevant) will hereafter be denoted as either “the Constitution” or “the Constitution of Singapore”, as may be appropriate to the context.

  5. [3] We ought to also emphasise at the outset that the present appeal does not deal with the substantive issue of the constitutionality of s 377A of the current Penal Code (“s 377A”), but only concerns the preliminary issue of whether the Application was correctly struck out under O 18 r 19 of the Rules (“O 18 r 19”) on the basis that it disclosed no cause of action and/or was frivolous and/or was an abuse of the process of the court (referred to hereafter as “an abuse of court process” for short).

  6. Background to the dispute

  7. [4] On 9 March 2010, Tan and another male person (“the co-accused”) were arrested for engaging in oral sex in a cubicle in a public toilet of a shopping complex. Both parties are adult males in their forties.

  8. [5] In due course, Tan and the co-accused were separately charged under s 377A with the commission of “[an] act of gross indecency with another male person”. Tan was charged on 2 September 2010 and the co-accused was charged on 1 September 2010.

  9. [6] On 24 September 2010, Tan brought the Application to challenge the constitutionality of s 377A under the Constitution. Counsel for Tan, Mr M Ravi (“Mr Ravi”), prayed for the following declarations:

  10. (a) s 377A is inconsistent with Art 9 of the Constitution (“Art 9”) and is therefore void by virtue of Art 4 of the Constitution (“Art 4”);

  11. (b) s 377A is inconsistent with Arts 12 and 14 of the Constitution (“Art 12” and “Art 14” respectively) and is therefore void by virtue of Art 4; and

  12. (c) for these reasons, the charge brought against Tan under s 377A is void.

  13. [7] Not long after this, on 15 October 2010, the Prosecution informed Tan that the s 377A charge against him had been substituted with one under s 294(a) of the current Penal Code (“s 294(a)”) for the commission of an obscene act in a public place. The charge against the co-accused was similarly substituted.

  14. [8] The Attorney-General (“the AG”) then applied via Summons No 5063 of 2010 to strike out the Application pursuant to O 18 r 19 and/or the inherent jurisdiction of the court. At the hearing before the assistant registrar (“the AR”), Tan abandoned prayer 3 of the Application (ie, the prayer for the declaration set out at [6(c)] above) as there was no longer a s 377A charge to be voided. On 7 December 2010, the AR struck out the Application on the grounds that it:

  15. [9] Tan appealed via Registrar’s Appeal No 488 of 2010 (“RA 488/2010”) against the AR’s decision to strike out the Application. That appeal formed the subject matter of the Judgment.

  16. [10] Tan subsequently pleaded guilty to the substituted charge under s 294(a) on 15 December 2010, and was convicted and sentenced to a fine of $3,000. The co-accused had earlier pleaded guilty, and had similarly been convicted and sentenced to a fine of $3,000.

  17. The decision below

  18. [11] In RA 488/2010, the Judge had to determine whether the Application could be struck out under O 18 rr 19(1)(a), 19(1)(b) and/or 19(1)(d) for, respectively, disclosing no reasonable cause of action, being frivolous or vexatious and/or being an abuse of court process. Mr Aedit bin Abdullah (“Mr Abdullah”), who appeared on behalf of the AG, did not rely on O 18 r 19(1)(c) (viz, prejudice to, or embarrassment or delay of the fair trial of an action) as a ground for striking out.

  19. [12] Although the Judge unequivocally found that Tan had locus standi to bring the Application, she also found that the Application disclosed no real controversy to be adjudicated (see [25] of the Judgment). For this reason alone, she dismissed Tan’s appeal in RA 488/2010 and upheld the AR’s striking-out order.

  20. [13] In arriving at her decision, the Judge examined the three grounds under O 18 r 19 that the AG sought to rely on and considered the elements in each ground. Her rulings on these grounds were as follows:

  21. (a) Vis-à-vis O 18 r 19(1)(a) (the “no reasonable cause of action” ground), the Judge found that an action could be struck out where the applicant was unable to establish locus standi (see Abdul Razak Ahmad v Majlis Bandaraya Johor Bahru [1995] 2 MLJ 287 (cited at [5(a)] of the Judgment)).

  22. (b) Vis-à-vis O 18 r 19(1)(b) (the “frivolous or vexatious” ground):

  23. (i) The Judge found that an action could be deemed frivolous where it was incapable of legally sustainable and reasoned argument (see Chee Siok Chin and others v Minister for Home Affairs and another [2006] 1 SLR(R) 582 (“Chee Siok Chin”) at [33] (cited at [5(b)] of the Judgment)). The Judge further held that an action could be deemed vexatious where it was without foundation and/or could not possibly succeed (see likewise [5(b)] of the Judgment, citing Chee Siok Chin at [33]). An action could also be said to be vexatious where the party bringing the action was not acting bona fide but merely wished to annoy or embarrass his opponent, or where the action was not calculated to lead to any practical result (see Goh Koon Suan v Heng Gek Kiau and others [1990] 2 SLR(R) 705 at [15] (cited at [5(b)] of the Judgment)).

  24. (ii) As the Application was for declaratory relief, the Judge considered that if the court could not grant the declaratory relief sought, it was arguable that the Application was frivolous and vexatious as it would have no practical value (see the Judgment at [6]). The Judge then considered and applied the test elucidated in Karaha Bodas Co LLC v Pertamina Energy Trading Ltd and another appeal [2006] 1 SLR(R) 112 (“Karaha Bodas”) at [14] for determining whether declaratory relief could be granted.

  25. (c) Vis-à-vis O 18 r 19(1)(d) (the “abuse of court process” ground), the Judge found that an action could be struck out where it: (i) effected a deception on the court; (ii) used the court’s processes for some ulterior or improper purpose or in an improper way; (iii) was manifestly groundless or useless or served no useful purpose; or (iv) was one of a series of multiple or successive proceedings which caused or were likely to cause improper vexation or oppression (see Chee Siok Chin at [34] (cited at [5(c)] of the Judgment)).

  26. [14] From this, the Judge distilled the four key issues below that, in her view, would determine the outcome of RA 488/2010 (see the Judgment at [7]):

  27. (a) Did Tan have locus standi to bring the Application?

  28. The Judge reasoned that if Tan did not have locus standi to bring the Application, the Application could be struck out under either O 18 rr 19(1)(a) or 19(1)(b). The Judge found that Tan had satisfied the “substantial interest” test for locus standi laid down in Chan Hiang Leng Colin and others v Minister for Information and the Arts [1996] 1 SLR(R) 294 (“Colin Chan”) as it was arguable on the facts that Tan’s constitutional rights under Art 12 had been violated (see the Judgment at [19]–[21]). The Judge thus held that the AG’s striking-out application could not be granted on this ground.

  29. (b) Was there a real controversy to be adjudicated?

  30. (i) The Judge held that if there was no real controversy to be adjudicated, the Application could be struck out under either O 18 rr 19(1)(b) or 19(1)(d). (As noted earlier at [12] above, the Judge struck out the Application on this ground alone.) While there were specific facts involving specific parties, the Judge found that the facts were “merely hypothetical” (see [25] of the Judgment).

  31. (ii) Although Tan raised an argument based on the Hong Kong case of Leung v Secretary for Justice [2006] 4 HKLRD 211 (“Leung”) that there could be adjudication on hypothetical facts in “exceptional cases”, the Judge found that Leung could be distinguished (see [26] of the Judgment). First, the Judge noted that Leung was based on the International Covenant on Civil and Political Rights, a treaty which had no force of law in Singapore. Second, she found that the court’s reasoning in Leung – viz, that if the court were to refuse to hear the application on the ground that it concerned a hypothetical scenario, it would mean that the applicant could only gain access to justice by breaking the law – was less persuasive in Singapore as compared to Hong Kong, given the referral mechanism provided for in Art 100 of the Constitution of Singapore (“Art 100”) apropos questions on the effect of any constitutional provision. The Judge opined that the possibility of convening a tribunal (“the Constitutional Tribunal”) under Art 100 was “an established procedure through which guidance [might] be obtained [on constitutional questions] in the absence of specific facts” (see [26(b)] of the Judgment). Further, the Judge expressed concern that the criterion of “exceptional cases” was too vague and might open the floodgates to constitutional challenges (see [26(a)] of the Judgment).

  32. (ii) In addition, the Judge found that there was “nothing at stake for Tan” (see [26(c)] of the Judgment) as Tan had already pleaded guilty and been convicted under s 294(a). In the Judge’s view, Tan’s conduct in pursuing the Application “[went] against the spirit of the adversarial process where the parties’ conduct [was] conditioned by the possibility of gain and/or loss” (see likewise [26(c)] of the Judgment).

  33. (iv) The Judge also expressed concern that since the s 377A charge against Tan had been dropped, there were “no subsisting facts upon which there [could] be res judicata” (see the Judgment at [27]) and the Application thus had “no real practical value” (see likewise [27] of the Judgment).

  34. (c) Was Tan’s claim certain to fail?

  35. The Judge held that if Tan’s claim was certain to fail, the Application could be struck out under either O 18 rr 19(1)(b) or 19(1)(d). Pertinently, the Judge found that Tan’s case was not certain to fail, and in fact raised many novel issues that deserved more detailed treatment (see the Judgment at [30]–[31]):

  36. The Judge therefore did not grant the AG’s striking-out application on this ground.

  37. (d) Did the court have jurisdiction to declare s 377A unconstitutional in view of the fact that Tan had not come to court by way of s 56A of the Subordinate Courts Act (Cap 321, 2007 Rev Ed) (“the SCA”)?

  38. The Judge reasoned that if Tan’s failure to have recourse to s 56A of the SCA amounted to an abuse of court process, the Application could be struck out under O 18 r 19(1)(d). While the Judge found that it was more likely than not that s 56A of the SCA was meant to be an exclusive regime, she also noted (at [42] of the Judgment) that it could not be said that it was a “very clear case” that this was so. She thus ruled that the AG’s striking-out application could not be granted on this ground.

  39. [15] At this juncture, we will confine ourselves to a few brief preliminary remarks on the Judgment, which we will elaborate on later in our decision when discussing the requirement (vis-à-vis applications for declaratory relief) that there must be a “real controversy” for the court to resolve (see [143] below). The anomalous result brought about by the Judgment – specifically, the Judge’s ruling that there was no real controversy to be adjudicated – is that a claim which was not certain to fail and which was brought by an applicant who had locus standi was struck out by a court which had jurisdiction to hear the claim. With respect, we find it difficult to reconcile the Judge’s findings that, on one hand, “Tan’s constitutional rights [might] arguably have been violated” (see the Judgment at [19]) and “Tan’s case was not completely without merit” (see the Judgment at [30]) with her finding that, on the other hand, the Application did not disclose a real controversy to be adjudicated. We note that on the Judge’s view, it appears that: (a) a real controversy refers solely to a real controversy on the facts; and (b) a real controversy of law, even one which possibly has merit and which is brought by a person with locus standi, remains within the realm of the merely hypothetical.

  40. [16] One of the Judge’s chief concerns in coming to her conclusion that there was no real controversy to be adjudicated was that subsisting facts were necessary for a judgment to be res judicata (see the Judgment at [25], and the Judge’s reiteration at [27]), and that unless that condition was satisfied, the court should not hear a matter. With respect, if this were correct, then it would never be possible to seek a declaratory order on the law. In our view, this would be an undesirable state of affairs. There is, undoubtedly, much value in having judicial determinations in appropriate cases on debatable points of law of public interest, not just for the benefit of the parties concerned, but also (and primarily) for the benefit of the public. Clear judicial pronouncements on what the law is help to ensure that the rule of law is upheld. The rule of law requires that the law be capable of fulfilling its function of guiding the behaviour of persons living under the law. For persons to be able to be guided by the law and to act on it, they need to first know what the law is, and it is thus essential that principles of law are correctly and authoritatively decided. This is especially so where the point of law to be clarified is, as in the present case, one of high constitutional importance.

  41. [17] Moreover, as Zamir & Woolf: The Declaratory Judgment (Lord Woolf & Jeremy Woolf eds) (Sweet & Maxwell, 4th Ed, 2011) (“Zamir & Woolf”) aptly states at para 1-07:

  42. In the present case, a judicial decision on the Application would bind the Government, and not just Tan. Further, such a decision would be based on the underlying facts of the case, in particular, Tan’s arrest, detention and charge under s 377A (see [151]–[154] below). This determination would also address the Judge’s concerns about res judicata. We thus disagree with the Judge that Tan’s claim has “no real practical value” (see the Judgment at [27]).

  43. The issues on appeal

  44. [18] The following issues were raised on appeal:

  45. (a) Does Tan have a reasonable cause of action under Art 4, given that, on the face of it, Art 4 only applies to “any law enacted by the Legislature after the commencement of this Constitution” (“Issue 1”)? This is a new issue which was raised by the AG on appeal.

  46. (b) Is the test for locus standi in applications involving constitutional rights different from, and less strict than, the test for locus standi laid down in Karaha Bodas (“the Karaha Bodas test”) (“Issue 2”)? The following sub-issues were raised under this issue:

  47. (i) whether a subsisting prosecution under an allegedly unconstitutional law is a necessary element to found locus standi to challenge the constitutionality of that law; and

  48. (ii) if there is no need for an actual subsisting prosecution under the allegedly unconstitutional law to found locus standi, whether there is at least a need for a real and credible threat of prosecution, or whether the very existence of the allegedly unconstitutional law in the statute books suffices.

  49. (c) Has the applicable test for locus standi (as determined in Issue 2) been satisfied on the facts, ie, does Tan have locus standi to bring the Application (“Issue 3”)? The following sub-issues were raised under this issue:

  50. (i) whether any constitutional rights are at stake in the instant case; and

  51. (ii) whether Tan’s constitutional rights were violated on the facts.

  52. (d) Do the facts of the present case raise any real controversy to be adjudicated (“Issue 4”)?

  53. [19] The AG, quite correctly, is not pursuing the issue of whether Tan’s failure to have recourse to the mechanism provided for in s 56A of the SCA was an abuse of court process as there are no longer any subsisting proceedings in the Subordinate Courts. As was the case in the court below (see [31] of the Judgment), in this appeal, the AG is confining his arguments on certainty of failure to Tan’s lack of locus standi. Therefore, the issue of certainty of failure now pivots on the issue of locus standi, and not on the merits of the Application.

  54. [20] We add that it must be remembered that this is an appeal against a striking-out order, and the threshold for striking out is a high one. As this court emphasised in Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin and others [1997] 3 SLR(R) 649 at [21]:

  55. Similarly, in The “Tokai Maru” [1998] 2 SLR(R) 646 at [44], this court held:

  56. [21] Therefore, all that Tan has to show is that he has on the facts and law an arguable case. We add that, for the purposes of a striking out application, even if the statement of claim is inadequately drawn up, an opportunity to amend will be given, unless the court is satisfied that the defect cannot be cured by an amendment (see see Singapore Civil Procedure 2007 (G P Selvam gen ed) (Sweet & Maxwell Asia, 2007) at para 18/19/2). This is particularly so where there are substantive merits in the matter.

  57. [22] Before we turn to consider the issues on appeal proper, we will first set out the legislative history of s 377A so as to give body to the context of our decision. In this regard, it should be noted that the Indian Penal Code 1860 (Act 45 of 1860) (“the IPC”), which sired Singapore’s Penal Code, was not enacted British law, but rather, a code derived from British legal doctrines and policies that were then viewed as necessary to maintain social order among the colony’s natives.

  58. The legislative history of s 377A

  59. [23] Section 377A provides as follows:

  60. [24] To provide a more accurate understanding of the legislative origins of s 377A, we will also examine its sister provision, viz, s 377 of the Penal Code (Cap 224, 1985 Rev Ed) (“the 1985 Penal Code”). Section 377 of the 1985 Penal Code (“s 377”) has now been repealed (see below at [31]–[32] for the reasons for its repeal). It provided as follows:

  61. [25] The earliest version of s 377, which was modelled on the English offence of buggery, was enacted in Singapore in 1872 by the Penal Code (Ord 4 of 1871) (“the Straits Settlements Penal Code”) when Singapore was part of the Straits Settlements. The Straits Settlements Penal Code, which was the earliest precursor of the current Penal Code, was derived from the IPC. Section 377 of the Straits Settlements Penal Code was in pari materia with s 377 of the IPC. In Naz Foundation v Government of NCT of Delhi and Others WP(C) No 7455 of 2001 (2 July 2009) (“Naz”), a decision of the High Court of Delhi, the court considered the legislative history of s 377 of the IPC in some detail as follows:

  62. [26] Pertinently, the above extract shows the historical umbilical cord between the “parent” English legislation and the legislation enacted in British colonies at the time. A year after s 377 of the IPC was enacted, the maximum penalty for buggery in England was amended from the death penalty to that of life imprisonment (see s 61 of the Offences Against the Person Act 1861 (c 100) (UK) (“the UK Offences Against the Person Act 1861”)), bringing the position under English law into line with that under the IPC. Following this, s 11 of the Criminal Law Amendment Act 1885 (c 69) (UK) (commonly known as “the Labouchere Amendment” after Henry Labouchere, the Member of Parliament who introduced it) was passed. Section 377A can be traced to the Labouchere Amendment, which provided as follows:

  63. It is clear that the Labouchere Amendment was unlike the offence of buggery in two respects. First, the buggery laws were gender neutral, whereas the Labouchere Amendment focused on sexual conduct between male homosexuals. Second, the Labouchere Amendment expressly extended to private acts. The next legislative development of note came in the form of a report published in 1957 (viz, Report of the Departmental Committee on Homosexual Offences and Prostitution (Cmnd 247, 1957) (Chairman: Sir John Frederick Wolfenden) (“the Wolfenden Report”)), which ignited a vigorous debate that eventually led to the passage of the Sexual Offences Act 1967 (c 60) (UK) (“the UK Sexual Offences Act 1967”). The UK Sexual Offences Act 1967 amended s 12(1) of the Sexual Offences Act 1956 (c 69) (UK) (“the UK Sexual Offences Act 1956”) to partially decriminalise consensual homosexual acts, including anal intercourse. Following the enactment of the Criminal Justice and Public Order Act 1994 (c 33) (UK) (“the 1994 UK Act”), non-consensual anal intercourse in England was classified as rape (see s 142 of the 1994 UK Act). English law currently no longer criminalises consensual heterosexual and homosexual anal intercourse in private, nor acts of “gross indecency” in private between consenting males, subject to limits such as an age of consent (see, eg, s 12 of the UK Sexual Offences Act 1956, s 1 of the UK Sexual Offences Act 1967 as well as ss 142 and 143 of the 1994 UK Act). In other words, English law no longer has provisions corresponding to s 377 and s 377A in its statute books. We note that on this issue, Scottish law was brought into line with that of England and Wales through the Criminal Justice (Scotland) Act 1980 (c 62) (UK), and the law of Northern Ireland was brought into line with that of the rest of the United Kingdom after the decision in Dudgeon v The United Kingdom [1981] ECHR 5. Interestingly, of the great colonial powers of Western Europe (viz, Britain, France, Germany, the Netherlands, Portugal and Spain), only Britain and France left the legacy of s 377 to its colonies (see Douglas E Sanders, “377 and the Unnatural Afterlife of British Colonialism in Asia” (2009) Asian Journal of Comparative Law vol 4, issue 1, article 7 (“Sanders”) at p 1). This, it also bears mention, happened during a period in which parallel prohibitions were eliminated in the other major European colonial powers except Germany (see Sanders at p 15).

  64. [27] Although provisions equivalent to s 377 were enacted in both the Straits Settlements and British India, the same cannot be said of s 377A. While a provision similar to s 377A was never enacted in the IPC, such a provision was enacted in the successor to the Straits Settlements Penal Code (viz, the Penal Code (Cap 20, 1936 Rev Ed) (“the 1936 Penal Code”)) by s 3 of the Penal Code (Amendment) Ordinance 1938 (No 12 of 1938) (“the Penal Code (Amendment) Ordinance 1938”). During the second reading of the Penal Code (Amendment) Bill 1938 (viz, the Bill which was subsequently enacted as the Penal Code (Amendment) Ordinance 1938) in the Straits Settlements Legislative Council, Mr C G Howell (“Mr Howell”), the then Attorney-General, made the following comments on the decision to enact a provision in pari materia with s 377A (see Proceedings of the Legislative Council of the Straits Settlements (13 June 1938) at p B49):

  65. [28] Prior to the enactment of s 377A of the 1936 Penal Code, the law making “gross indecency” between male homosexuals an offence only targeted public conduct, and Mr Howell’s comment on how small the chances of detection were was probably stated in this context. As private acts were largely out of the law’s reach, Mr Howell stated that the Legislature desired to “strengthen the law” (see Proceedings of the Legislative Council of the Straits Settlements (13 June 1938) at p B49) by extending it to reach the private domain. Section 377A of the 1936 Penal Code thus expressly provided that acts of “gross indecency”, whether committed “in public or private”, were equally to be treated as offences. It appears from this that the enactment of s 377A of the 1936 Penal Code was a calculated move to criminalise private sexual conduct between males.

  66. [29] As Mr Howell referred to the position in Hong Kong, we will add a few brief words on the same. Hong Kong previously had a section equivalent to s 377A in the form of s 51 of the Offences Against the Person Ordinance (Cap 212, 1981 Rev Ed) (HK) (“s 51”). Section 51 was located in a chapter entitled “Abominable Offences”. That chapter also included the offence of buggery under s 49, which, like the corresponding English provision, was gender neutral. The provisions on “Abominable Offences” were introduced into Hong Kong law in 1865 when the UK Offences Against the Person Act 1861 was adopted. In 1983, the Law Reform Commission of Hong Kong (“the Commission”), in its report dated 15 April 1983 entitled “Laws Governing Homosexual Conduct (Topic 2)”, recommended that the law should not prohibit consensual sexual conduct between adults of the same sex in private (at para 11.50). The Commission defined “in private” as a situation where not more than two persons were present. These proposals were not implemented by the Hong Kong government. In 1990, with the imminent passage of the Hong Kong Bill of Rights Ordinance (Cap 383) (this was eventually passed in 1991), the Hong Kong Legislative Council held a debate and the Chief Secretary of Hong Kong noted that the laws against homosexual conduct would soon be “open to challenge under the [proposed] Bill of Rights” (see Hong Kong Legislative Council, Official Report of Proceedings (11 July, 1990)). Following the debate, the Crimes (Amendment) Ordinance (No 90 of 1991) (HK) was passed, decriminalising consensual sexual conduct between two homosexual adults, with adults defined as persons of 21 years and above. The relevant provisions of the Crimes Ordinance (Cap 200) (HK) (“the Hong Kong Crimes Ordinance”) were subsequently challenged in Leung (see below at [96]), and were found to be unconstitutional as they infringed the right to privacy and equality. The Hong Kong Court of Appeal found (at [51(2)] of Leung) that there was no justification as to “why the minimum age requirement for buggery [was] 21 whereas as far as sexual intercourse between a man and a woman [was] concerned, the age of consent [was] only 16”.

  67. [30] Developments in the law have not been confined to England and Hong Kong. There have also been further developments in both Singapore and India with regard to the ambit of, respectively, s 377 and s 377A (where Singapore is concerned) and s 377 of the IPC (where India is concerned). In Naz, the High Court of Delhi noted (at [2]) that s 377 of the IPC was extremely broad as it criminalised all “sex other than heterosexual penile-vaginal [sex]”. Further, consent was not a defence, and there were no distinctions made as to the age of the participants. Acts which amounted to “sexual perversity” (see Calvin Francis v Orissa 1992 (2) Crimes 455 and Fazal Rab Choudhary v State of Bihar AIR 1983 SC 323), including oral sex, anal sex and penetration of other orifices (see Lohana Vasantlal Devchand and others v The State AIR 1968 Guj 252), were caught by s 377 of the IPC. This would have included both heterosexual and homosexual oral sex and anal sex. We note that based on such an interpretation (as applied to the Singapore context), s 377A may be seen as a subset of s 377, covering a specific class of persons, viz, men who participate in sexual conduct with other men. In Naz, the court (at [132]) read down s 377 of the IPC to only govern “non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors” [emphasis added]. We note that Naz has since been challenged through public interest litigation before the Supreme Court of India, and at the time of writing this judgment, the appeal has yet to be determined.

  68. [31] In Singapore, the predecessor versions of s 377 and s 377A were absorbed unchanged into the Penal Code (Cap 119, 1955 Rev Ed). As alluded to above at [24], s 377 was subsequently repealed by the Penal Code (Amendment) Act 2007 (Act 51 of 2007) (“the 2007 Amendment Act”). During the parliamentary debates on 22 and 23 October 2007 (“the October 2007 parliamentary debates”) regarding the Bill which later became the 2007 Amendment Act (viz, the Penal Code (Amendment) Bill 2007 (Bill 38 of 2007)), the then Senior Minister of State for Home Affairs, Assoc Prof Ho Peng Kee (“Assoc Prof Ho”), explained the decision to repeal s 377 as follows (see Singapore Parliamentary Debates, Official Report (22 October 2007) vol 83 at cols 2198–2200):

  69. [32] It can thus be seen that the over-breadth of s 377, which criminalised consensual heterosexual oral and anal sex in private, was a key reason for its repeal. The gender neutrality of s 377 was affirmed in Public Prosecutor v Kwan Kwong Weng [1997] 1 SLR(R) 316 (“Kwan Kwong Weng”), which held (at [17]) that s 377 was an “all-embracing provision concerning ‘unnatural offences’”. The scope of s 377 was clarified by this court to cover more than just the offences of sodomy and bestiality (at [17]), and to include consensual fellatio between a man and a woman where fellatio did not lead to consensual sexual intercourse (at [31]). Where fellatio was a substitute for “natural sexual intercourse”, the woman’s consent to perform the act of fellatio “[could not] save it from being an offence under s 377” (at [32]). Kwan Kwong Weng was followed in the later case of Annis bin Abdullah v Public Prosecutor [2003] SGDC 290 (“Annis bin Abdullah”), which Assoc Prof Ho referred to in the October 2007 parliamentary debates (see above at [31]). In Annis bin Abdullah, the accused engaged in the act of fellatio with a female (“the complainant”). The fellatio did not lead to sexual intercourse. The complainant subsequently lodged a police report, and the accused was charged under s 377. He pleaded guilty, and was convicted and sentenced to two years’ imprisonment, a sentence which was subsequently lowered to one year’s imprisonment on appeal (see Annis bin Abdullah v Public Prosecutor [2004] 2 SLR(R) 93). The charge sheet and the statement of facts stated that the complainant was 16 years old at the time of the offence. While there was a side issue regarding the complainant’s age (it was subsequently revealed that the charge sheet and the statement of facts were erroneous, and that the complainant was actually 15, rather than 16, years old at the time of the offence), this had no effect on the accused’s conviction under s 377. The complainant’s age would only have been relevant to the accused’s conviction if the complainant’s consent had been a defence to the charge under s 377 (the age of consent is 16 years of age). Pursuant to Kwan Kwong Weng, the District Court in Annis bin Abdullah held (at [2]) that consent was irrelevant to a charge under s 377 where fellatio was performed “as a substitute for natural sexual intercourse”. Nonetheless, the fact that the complainant had voluntarily performed fellatio on the accused was published by the media, leading to an intense public debate (see, eg, Tanya Fong & Glenys Sim, “Oral sex ruling vexes many” The Straits Times (8 November 2003) at p H1). The tenor of the views publicly expressed was largely supportive of the repeal of s 377, and this did not go unnoticed by the Legislature, which consequentially undertook the updating of the 1985 Penal Code to “reflect societal norms and values” (see Singapore Parliamentary Debates, Official Report (22 October 2007) vol 83 at col 2198). The archaic wording of s 377 was also found to be too vague to be effective, and more precise provisions were enacted to cover cases which were thought to be deserving of criminal sanction and which would formerly have been within the ambit of s 377 (see now ss 376A–376G and 377B of the current Penal Code).

  70. [33] As is well known, and as the facts of the present case attest, while s 377 was repealed by the 2007 Amendment Act, the then equivalent of s 377A (viz, s 377A of the 1985 Penal Code) was retained. While it was uncontroversial that the 2007 Amendment Act was timely and necessary, the issue which attracted the most press and public debate was, ironically, a non-amendment, viz, the retention of the then equivalent of s 377A. With this overview of the relevant legislative history in place, we will proceed to examine the issues on appeal set out at [18] above.

  71. Issue 1

  72. [34] As noted above, what has to be ascertained with regard to Issue 1 is whether Tan has a reasonable cause of action under Art 4, given that, on the face of it, Art 4 only applies to “any law enacted by the Legislature after the commencement of this Constitution” [emphasis added]. This is a new issue raised on appeal by the AG that was not before the Judge. The crux of this issue is whether laws enacted prior to the commencement of the Constitution can also be voided under Art 4 (hereafter called “the Art 4 issue”).

  73. The AG’s case

  74. [35] On behalf of the AG, Mr Abdullah contends that Art 4 cannot be relied on to invalidate s 377A. Given that s 377A was enacted (in the form of s 377A of the 1936 Penal Code) by the Penal Code (Amendment) Ordinance 1938 (see above at [27]), ie, well before the commencement of the Constitution on 9 August 1965, Mr Abdullah submits that Tan may not rely on Art 4 to have s 377A declared void. Mr Abdullah thus submits that the Application discloses no reasonable cause of action under Art 4 and must be struck out under O 18 r 19(1)(a).

  75. [36] According to Mr Abdullah, the proper constitutional provision under which a constitutional challenge against s 377A can be brought is Art 162 of the Constitution (“Art 162”). He emphasises that the material difference between Art 4 and Art 162 is that only the former provides for the voiding of unconstitutional laws. While Mr Abdullah concedes that it is open to Tan to argue for the modification, etc, of s 377A under Art 162, he contends that it is incumbent on Tan to distinctly state the modification, etc, which he seeks in the Application itself as his standing depends on the precise modification, etc, sought. As Tan did not do so in the Application, Mr Abdullah argues that it is “fatally deficient, discloses no reasonable cause of action, and ought to be struck out”.

  76. Tan’s case

  77. [37] Before us, Mr Ravi stated that he did not intend to address the Art 4 issue as it was a new point which was raised only on appeal. As such, he confined himself to stating that Art 4 stressed the supremacy of the Constitution and that Art 162 should be read subject to it.

  78. Our analysis and decision

  79. [38] As noted above at [34], the Art 4 issue is a new issue that the AG has raised on appeal. Under O 57 r 9A(4)(b) of the Rules, where a party intends to introduce on appeal a new point not taken in the court below, it is incumbent on that party to state this clearly in its Case. This was not done in the present appeal: the Respondent’s Case filed by the AG does not clearly disclose the Art 4 issue as a new point. Be that as it may, O 57 r 13(4) of the Rules provides that even if the requirements of O 57 r 9A are not met, this court may make “any order, on such terms as the Court thinks just, to ensure the determination on the merits of the real question in controversy between the parties”. An appellate court should only hear a new point on appeal where it is competent and where it is “expedient, in the interests of justice” to do so (see Connecticut Fire Insurance Company v Kavanagh [1982] AC 473 at 480 (cited in Feoso (Singapore) Pte Ltd v Faith Maritime Co Ltd [2003] 3 SLR(R) 556 (“Feoso”) at [28])). One of the factors going to an appellate court’s competency to hear a new point on appeal is whether the new point can be disposed of without deciding questions of fact (see Feoso at [28]). If the new point cannot be disposed of without deciding questions of fact, the appellate court will be in a less advantageous position to determine that point than the court below. In the present case, the Art 4 issue is purely a question of law, and given that it is a novel issue of constitutional interpretation, we find that it is expedient and in the interests of justice for us to proceed to determine the issue.

  80. [39] On our understanding, Mr Abdullah’s submissions on the Art 4 issue amount to a claim that Art 4 and Art 162 create exclusive parallel regimes under which:

  81. (a) laws enacted after the commencement of the Constitution, and only such laws, may be voided for incompatibility with the Constitution (pursuant to Art 4); and

  82. (b) all laws shall be construed to bring them into conformity with the Constitution, regardless of when they come into force (pursuant to Art 162).

  83. [40] To decide if this is indeed the correct interpretation of Art 4 and Art 162, we will examine the respective scopes of these two Articles and the relationship between them.

  84. The relevant constitutional provisions

  85. [41] Article 4 provides as follows:

  86. The date of the “commencement of this Constitution” is defined in Art 2(1) of the Constitution (“Art 2(1)”) as 9 August 1965.

  87. [42] Article 162 provides as follows:

  88. For the purposes of Art 162, the term “existing law” is defined in Art 2(1) as “any law having effect as part of the law of Singapore immediately before the commencement of this Constitution”, and the term “law” is defined (likewise in Art 2(1)) as including, inter alia, “written law and … the common law in so far as it is in operation in Singapore”. In the context of Art 162, existing law thus includes the common law that was in operation in Singapore prior to the commencement of the Constitution (see Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1992] 1 SLR(R) 791 at [57]).

  89. The position in Malaysia with regard to the Art 4 issue

  90. [43] Certain provisions of the Federal Constitution of Malaysia 1963 (“the Constitution of Malaysia”, which expression will also include, where appropriate, the relevant predecessor version of the Federal Constitution of Malaysia 1963), including the then equivalent of Art 4 and Art 162, continued to be in force in Singapore post-independence pursuant to s 6 of the Republic of Singapore Independence Act 1965 (Act 9 of 1965), which provided as follows:

  91. [44] The following table shows a comparison of the relevant Articles of the Constitution of Malaysia with Art 4 and Art 162 of the Constitution of Singapore:

  92. [45] Article 162 of the Constitution of Malaysia provides for two avenues to deal with existing laws that are unconstitutional. The first, provided for by Art 162(1), is legislative – such laws may be repealed by legislation. The second, provided for by Art 162(6), is judicial – such laws may be applied by the courts with the necessary modifications to bring them into accord with the Constitution of Malaysia.

  93. [46] We note that there are four differences between the wording of Art 162 of the Constitution of Singapore and its Malaysian counterpart. The first difference is relatively minor, namely, that Art 162 of the Constitution of Singapore only expressly provides for judicial interpretation and makes no mention of legislative repeal. We find this difference to be minor as it is trite that the Singapore legislature has the power to repeal or modify any law (Arts 38 and 58 of the Constitution of Singapore vest the legislative power in Singapore’s legislature), and this must apply with particular force where the law in question is unconstitutional. The second difference is that Art 162 of the Constitution of Singapore provides that all laws shall be construed with the necessary modifications, etc, to bring them into conformity with the Constitution, whereas Art 162(6) of the Constitution of Malaysia speaks instead of applying existing laws with the necessary modifications. As both the construction and the application of the law involve a process of judicial interpretation, we do not find this difference to be material. The third difference is that Art 162 of the Constitution of Singapore provides that the courts shall construe all laws with the necessary modifications, etc, to bring them into conformity with the Constitution, whereas Art 162(6) of the Constitution of Malaysia provides that the courts may apply existing laws with the necessary modifications. This difference may be more apparent than real as the word “may” was interpreted by the Privy Council in B Surinder Singh Kanda v The Government of the Federation of Malaya [1962] MLJ 169 (“Surinder Singh”) (at 171) to mean “must”, which aligns the positions under the two Constitutions in this respect. The fourth difference is that the Singapore courts’ power of modification, etc, under Art 162 of the Constitution of Singapore applies to all laws, and is thus broader than the Malaysian courts’ corresponding power under Art 162(6) of the Constitution of Malaysia, which is expressly limited to “existing law” [emphasis added]. For our purposes, the relevance of this fourth difference is that it shows that under the Constitution of Singapore, there is no stark dichotomy between the Singapore courts’ power to deal with, respectively, unconstitutional existing laws and unconstitutional laws enacted after the commencement of the Constitution. Both types of laws fall under Art 162 and can be construed with the appropriate modifications, etc, to bring them into conformity with the Constitution. The question that we now have to decide is whether both types of laws also fall under Art 4 such that they can be held to be void to the extent of their inconsistency with the Constitution.

  94. [47] While this is the first time that the Singapore courts have had to confront the Art 4 issue, it has previously arisen for decision in Malaysia. We will thus begin by considering the line of Malaysian cases which have interpreted the equivalent provisions of Art 4 and Art 162 in the Constitution of Malaysia. While we have noted certain differences between the relevant constitutional provisions of Singapore and Malaysia (see above at [46]), we find that these differences do not detract from the Malaysian cases as a helpful reference point. These cases were not cited to us by the AG, perhaps because they do not speak with one voice. Upon a close scrutiny, we find that the tenor of these cases does not go so far as to support the position contended for by the AG. We now proceed to analyse these cases.

  95. [48] In Surinder Singh, the applicant, a police inspector, challenged his dismissal as being unconstitutional for a failure to adhere to the constitutionally-stipulated procedure. For our purposes, the relevant issue in Surinder Singh arose from two sets of legislation prescribing conflicting procedures for the dismissal of police officers. There is a need to go into a fair level of detail to appreciate the import of the case. The overarching framework for the dismissal of members of the police service was stipulated in Art 135(1) of the Constitution of Malaysia, which provided that such dismissal could only be carried out by a person who had the power at that time to also appoint officers of the same rank as that of the officer whom he sought to dismiss. In other words, the power of appointment and the power of dismissal went hand in hand. The Privy Council thus had to determine who had the authority to appoint persons of the applicant’s rank. Here is where we come to the two conflicting sets of legislation. The first set consisted of ss 9(1) and 45(1) of the Police Ordinance 1952 (M’sia) (“the Police Ordinance 1952”), an existing law which pre-dated the Constitution of Malaysia. Section 9(1) of the Police Ordinance 1952 provided that the Commissioner of Police could appoint superior police officers, including police inspectors, and s 45(1) provided that the Commissioner of Police could dismiss (inter alia) police inspectors. The second set of provisions was constitutional, viz, Arts 140(1) and 144(1) of the Constitution of Malaysia. Article 140(1) set up the Police Service Commission, and Art 144(1) provided that it had the duty to appoint members of the police service. As the applicant had been dismissed by the Commissioner of Police rather than the Police Service Commission, the procedure for dismissal had failed to comply with the constitutional provisions, and this was the source of the applicant’s complaint. However, his dismissal was in line with the existing law (viz, s 45(1) of the Police Ordinance 1952). Given that Art 144(1) of the Constitution of Malaysia expressly provided that it was “[s]ubject to the provisions of any existing law” [emphasis added], the respondent in Surinder Singh argued that the Constitution of Malaysia was subject to the existing law, and not vice versa. Therefore, it was sufficient that the applicant’s dismissal had been in line with the existing law, even though this inevitably led to a failure to comply with the conflicting constitutional provisions.

  96. [49] This argument was rejected by the Privy Council. Lord Denning, who delivered the judgment of the Privy Council in Surinder Singh, unequivocally upheld the supremacy of the Constitution of Malaysia, stating (at 171):

  97. Therefore, to give effect to the Constitution of Malaysia, the court’s power under Art 162(6) was exercised to apply the existing law with such modifications as were necessary to bring it into accord with the Constitution of Malaysia. As noted earlier at [46] above, the Privy Council stated (at 171) that modification of unconstitutional law “must” be carried out. On the facts of the case, the necessary modification applied was that since Merdeka Day, it was the Police Service Commission, and not the Commissioner of Police, that had the power to appoint members of the police service. As the applicant had been dismissed by the Commissioner of Police, his dismissal was void.

  98. [50] We observe that the Privy Council’s “modification” to the existing law in Surinder Singh involved a substitution in toto of the words “Police Service Commission” in place of the words “Commissioner of Police”. This demonstrates a broad understanding of the court’s power of modification. The breadth of the court’s power of modification meant that the Privy Council did not have to consider a situation where modification of an existing law was impossible, and whether, in such a case, that law could be voided under Art 4 of the Constitution of Malaysia, an argument which was raised in the later case of Assa Singh v Mentri Besar, Johore [1969] 2 MLJ 30 (“Assa Singh”).

  99. [51] Assa Singh also involved the alleged unconstitutionality of an existing law. The applicant in that case had argued that modification of the relevant law under Art 162(6) of the Constitution of Malaysia was impossible because it would involve a complete re-writing of that law. While the Federal Court of Malaysia agreed with the applicant that the existing law in question was inconsistent with a constitutional provision, the court unanimously found that modification was possible. The relevant constitutional provisions were thus read into the existing law to bring it into line with the Constitution of Malaysia. Therefore, the court’s comments on the Art 4 issue were obiter. Ong Hock Thye CJ (Malaya) opined (at 35D) that since Art 4 of the Constitution of Malaysia only spoke of laws passed after Merdeka Day, “the validity or otherwise of the pre-Merdeka [law] w[ould] have to be considered solely by reference to article 162”. Ong CJ went on to affirm the distinction between Arts 4 and 162 of the Constitution of Malaysia, namely, that Art 162 did not provide for the voiding of unconstitutional laws (at 35E, quoting from the submissions of the respondent in Assa Singh):

  100. [52] In so far as Ong CJ’s comments relate to the differences between Arts 4 and 162 of the Constitution of Malaysia, and how Art 162 does not itself provide for the voiding of unconstitutional laws, we share his views. We note, however, that while Ong CJ said that unconstitutional existing laws would continue in force until and unless they were modified by the Legislature (under Art 162(1)) or by the Judiciary (under Art 162(6)) where a constitutional challenge was brought, he did not discuss the extent of the court’s powers when faced with an unconstitutional existing law which could not be modified.

  101. [53] Suffian FJ echoed Ong CJ by stating (at 40A of Assa Singh) that any existing law prior to Merdeka Day would continue in force on and after Merdeka Day “even if it [was] inconsistent with the Constitution [of Malaysia]”. He referred to Surinder Singh in support of this proposition, stating that the relevant legislation in Surinder Singh had openly conflicted with the Constitution of Malaysia, and yet, it had not been held to be void. As noted above, the reason why the relevant existing law in Surinder Singh was not held to be void was that this was not necessary after the modification was effected. As such, we understand Suffian FJ to be saying that existing laws which are inconsistent with the Constitution of Malaysia will remain in force until a constitutional challenge is mounted against them. Once such a challenge is mounted, if the law is found to be unconstitutional, the courts must then remedy the unconstitutionality by making the necessary modifications (see Surinder Singh at 171). Further, given that Surinder Singh held that an action taken under an unconstitutional law was void, Suffian FJ cannot be understood as saying that actions taken under unconstitutional laws would be allowed to have effect. We also note that Raja Azlan Shah J stated in Assa Singh that while existing laws were not allowed to stand in the way of the exercise of fundamental rights, such inconsistent laws “[were] not wiped off the statute book” (at 46C) as to do so “would be to give fundamental rights a retrospective effect which the law [held] they [had] not” (likewise at 46C). Such inconsistent laws would instead be unenforceable. We respectfully diverge from this view as we find that the modification or voiding of an existing law which impinges on constitutionally-protected fundamental rights does not give such rights a retrospective effect so long as the action to modify or void that law is taken after the Constitution in question comes into effect. Once a Constitution comes into effect, the protection of the fundamental rights guaranteed by that Constitution also comes into effect. There is nothing “retrospective” about this.

  102. [54] Assa Singh was applied in the later case of Jamaluddin bin Mohd Radzi & Ors v Sivakumar a/l Varatharaju Naidu (claimed as Yang Dipertua Dewan Negeri Perak Darul Ridzuan), Election Commission, intervener [2009] 4 MLJ 593 (“Jamaluddin”). Jamaluddin also involved an existing law, viz, a provision of the Constitution of the Malaysian state of Perak. The Federal Court of Malaysia referred to Ong CJ’s holdings in Assa Singh (see above at [51]) in support of the finding (at [8] of Jamaluddin) that “[p]re-Merdeka laws [could] never be declared as void”. With respect, we find this conclusion rather puzzling, given that Ong CJ did not say in Assa Singh that pre-Merdeka laws could never be declared to be void. What Ong CJ appeared to say was that pre-Merdeka laws could not be voided under the regime of Art 162 of the Constitution of Malaysia. Further, there is difficulty reconciling the court’s stance in Jamaluddin with the unequivocal view expressed by the Privy Council in Surinder Singh (see above at [49]).

  103. [55] In our view, apart from Jamaluddin, the Malaysian cases cannot be taken as support for the AG’s contention that existing laws can never be voided under Art 4. As we explained in the preceding paragraph, it appears that Jamaluddin is itself out of kilter with the approach adopted in earlier cases such as Surinder Singh and Assa Singh. We align ourselves with the latter two cases, and find that while those two cases hold that modification of unconstitutional existing laws must be carried out, this is only in so far as modification is possible. Surinder Singh and Assa Singh leave open the position which the courts should take where modification is impossible, viz, whether the courts can then void the unconstitutional existing law under Art 4. It is this question that we must now turn to, looking at the Constitution of Singapore. Before we do so, we note that our views correspond with those of the authors of the Report of the Federation of Malaya Constitutional Commission (11 February 1957) (Chairman: Lord Reid) (“the Reid Report”) and also with those of leading constitutional experts who have studied the Constitution of Malaysia. The Reid Report at para 161 recommended the inclusion of fundamental rights in the Constitution of Malaysia as only a Constitution, as the supreme law, was able to guarantee fundamental rights:

  104. [56] The same point was noted by Datuk Ahmad Ibrahim (see “Interpreting the Constitution: Some General Principles” in The Constitution of Malaysia, Further Perspectives and Developments: Essays in honour of Tun Mohamed Suffian (F A Trindade & H P Lee eds) (Oxford University Press, 1986) at p 19), who commented that the Reid Report took the view that fundamental rights must be guaranteed by the Constitution of Malaysia as the guarantee afforded by that Constitution was the supremacy of the law. In the commentary on Art 162 of the Constitution of Malaysia in Dato K C Vohrah, Philip T N Koh & Peter S W Ling, Sheridan & Groves: The Constitution of Malaysia (Malayan Law Journal, 5th Ed, 2004), Surinder Singh is cited (at p 708) for the proposition that “inconsistent existing laws must give way to the Constitution [of Malaysia] even where an Article or the Constitution [of Malaysia] was expressed to be ‘subject to existing laws’”. R H Hickling, Malaysian Public Law (Pelanduk Publications, 1997) at p 50 also refers to Surinder Singh as upholding the supremacy of the Constitution of Malaysia. The strongest statement of support for our view comes from Harry E Groves, The Constitution of Malaysia (Malaysia Publications, 1964), who wrote that the Constitution of Malaysia continued existing laws “provided such laws were not inconsistent with [that] Constitution” (at p 36), and that existing laws which were inconsistent with the Constitution of Malaysia and which “[had] not been modified in one of the available ways must be held void” [emphasis added] (at p 37, citing Surinder Singh).

  105. The position in Singapore with regard to the Art 4 issue

  106. [57] As mentioned earlier (see above at [47]), this is the first time that the Art 4 issue has arisen for decision by our courts. While our courts have modified existing laws to bring them into conformity with the Constitution pursuant to Art 162, thus far, there have not been any decisions on whether existing laws can be voided under Art 4.

  107. [58] This is an important issue as Art 162 may not provide an adequate remedy in every case. While Art 162 imposes a duty on the courts to construe modifications, etc, into unconstitutional existing laws, it is clear that there are limits to construction. It is a trite principle of statutory construction that the interpretation adopted cannot be inconsistent with the express statutory wording. The same goes for the construction of constitutional provisions. In our view, Art 162 only directs that all laws be read in conformity with the Constitution as far as this is possible. Even so, it will be remembered that the Malaysian courts’ power of “modification” under Art 162(6) of the Constitution of Malaysia was given a wide scope in Surinder Singh (see above at [50]). It seems to us that a similarly broad reading of the power of modification under Art 162 should likewise be adopted in Singapore, given that the distinction between “apply” in Art 162(6) of the Constitution of Malaysia and “construed” in Art 162 of the Constitution of Singapore is not a material one (see above at [46]). Further, there are hints in our case law that a similar breadth might be accorded to Art 162. For instance, in Butterworth & Co (Publishers) Ltd and others v Ng Sui Nam [1985–1986] SLR(R) 33, an existing statute was construed so as to be in line with the Constitution even though this “[led] to a somewhat bizarre result” (at [25]). As such, it may well be an exceptional case where the necessary modifications, etc, cannot be effected to bring an unconstitutional law into line with the Constitution.

  108. [59] In the event that construing a modification into an unconstitutional law is impossible, the supremacy of the Constitution must continue to be upheld, and the offending legislation will be struck down under Art 162 read harmoniously with Art 4. To the extent that any law does not conform to and cannot be reconciled with the Constitution through a process of construction, it is void. Article 4 provides for the unconstitutional portion of the law to be severed while retaining the remaining part of the law in the statute books. In other words, the court’s power to void laws for inconsistency with the Constitution under Art 4 can be interpreted to include the power to void laws which pre-date the Constitution.

  109. [60] In our view, this interpretation of Art 4 is consistent with Art 162. A purposive approach towards the interpretation of these two constitutional provisions should be adopted pursuant to s 9A read with s 2 of the Interpretation Act (Cap 1, 2002 Rev Ed). Section 9A(1) provides that an interpretation which promotes “the purpose or object underlying the written law … shall be preferred to an interpretation that would not promote that purpose or object”, and s 2 includes the Constitution in the definition of “written law”. Article 4 provides for one of the most important features of the Constitution, viz, that it is the supreme law of Singapore. The supremacy of the Constitution is necessary for the purposes of the Constitution to be protected as it ensures that the institutions created by the Constitution are governed by the rule of law, and that the fundamental liberties under the Constitution are guaranteed. Therefore, we find that the supremacy of the Constitution cannot be dependent on when a law was enacted: constitutional supremacy must apply equally both to laws which pre-date and laws which post-date the enactment of the Constitution (see Surinder Singh above at [49]).

  110. [61] On our understanding, Art 4 and Art 162 share this overarching aim of upholding the supremacy of the Constitution. Nonetheless, the two Articles have different, although not conflicting, means of doing so. As stated above (at [52]), we agree with Ong CJ’s observation in Assa Singh that there is a difference between the two Articles, and that Art 162 does not itself provide for the voiding of unconstitutional laws. Article 162 is clearly a transitional provision which specifically deals with existing laws (in the Constitution, Art 162 is found under Part XIV, which is headed “Transitional Provisions”). The purpose of Art 162 was to expressly provide for the continuity of existing laws in order to: (a) prevent lacunas in the law from arising as a result of the doctrine of implied repeal; and (b) eliminate the need to re-enact the entire corpus of existing laws when Singapore became an independent republic. At the time when the Constitution of Malaysia and the Constitution of Singapore were respectively enacted, the two States already each had a system of law in place: an existing corpus of legislation as well as the common law. While the respective Constitutions vested the legislative power of the States in their respective newly-constituted Legislatures, these new legislative organs could not, within a reasonable period of time, provide the respective States with the complete framework of law necessary for the functioning of the States. Therefore, it was necessary to provide that the existing laws remained in force, and Art 162 was enacted in Singapore for this purpose. In addition to preserving existing laws, Art 162 also provides for the supremacy of the Constitution to be upheld by stipulating that all laws (including existing laws) shall be construed in conformity with the Constitution. Given that Art 162 is concerned with preserving existing laws while keeping them in line with the Constitution through implementing the necessary modifications, etc, there is no need for it to also provide for the power to void unconstitutional existing laws as this is not within the ambit of its subject matter. The fact that Art 162 does not itself provide for the voiding of unconstitutional existing law does not mean that such law cannot be voided under another provision, viz, Art 4.

  111. [62] To hold otherwise, in accordance with the AG’s argument, means that when the limits of statutory construction are reached, a law will survive despite being in conflict with the Constitution. While this appears to have been the view in Assa Singh, as we have explained (see above at [52]–[53]), the unconstitutional law will only survive as long as the Legislature and/or the Judiciary do not take measures to bring the law into line with the Constitution. We add that we find it counter-intuitive that the Constitution would itself provide (via Art 162) that unconstitutional laws which have existed in our statute books since before 9 August 1965 – and which have infringed constitutional rights since that time – are preserved in our statute books. This cannot be the case. We thus find that the mere accident of vintage should not place an unconstitutional law which pre-dates the Constitution beyond the potency of Art 4.

  112. [63] Additional support for our view is found in the Report of the Constitutional Commission (27 August 1966) (Chairman: Wee Chong Jin CJ) (“the Wee Report”) and the parliamentary debates on the Wee Report. The Wee Report recommended at para 73 that a constitutional supremacy clause should be included in the Constitution:

  113. The supremacy clause is found today in Art 4. As can be seen, the reason for the inclusion of the supremacy clause was to ensure that the Constitution managed to perform its functions of, in the words of para 73 of the Wee Report, providing “meaningful” protection of fundamental rights (the subject matter of the recommendations in the Wee Report) and ensuring “effective safeguards against the abuse of majority power”. This accords with our view (see above at [60]) that the supremacy of the Constitution is necessary for the purposes of the Constitution to be protected. We note that when the Wee Report was debated in Parliament, one Member of Parliament, Mr Ho Kah Leong, expressed his understanding of the report on this issue in the following manner (see Singapore Parliamentary Debates, Official Report (15 March 1967) vol 25 at col 1305):

  114. In our view, “any other law” is clearly broad enough to cover existing laws. While there was no discussion in the parliamentary debate on the Wee Report as to whether unconstitutional existing laws could be declared invalid, we note that there were no proclamations to the contrary. If existing laws had been thought to be an exception to the supremacy of the Constitution, one would expect such an important point to have been debated specifically in Parliament, particularly when the debate on the Wee Report spanned four days (from 14 to 17 March 1967). It is also worth noting that although there was debate on the method of entrenchment that should be employed in the Constitution, there was unanimity over the need for entrenchment. The reason for the entrenchment of constitutional provisions was stated by the then Minister for Law and National Development, Mr E W Barker, as follows: “the Constitution is to be the supreme law of the land and its status as such is to be protected” [emphasis added] (see Singapore Parliamentary Debates, Official Report (17 March 1967) vol 25 at cols 1438–1439).

  115. [64] We ought to add that even if the AG is right such that Art 162 alone applies to any issue relating to the constitutionality of s 377A on the basis that it is an existing law, it is plain that the AG’s objection can be met by a simple amendment to the Application. The AG’s case is simply that since the Application makes no express reference to the modification, etc, sought under Art 162, it should be struck out. We see absolutely no merit in this argument as a ground for striking out the Application as it is an arid procedural objection. It is trite that a court will not strike out proceedings if they can be procedurally remedied by an amendment (see above at [21]). In this case, even assuming that Art 162 is the only relevant route by which the constitutionality of s 377A can be challenged, a court would readily give Tan leave to include a prayer based on Art 162 in the Application were it necessary to do so. In short, the AG’s objection on this aspect of the Application is readily curable procedurally and does not address the pith and substance of the matter. Therefore, even though we find that Tan may rely on Art 4, it would not matter even if we had agreed with the AG on the Art 4 issue.

  116. Issue 2

  117. [65] We turn now to Issue 2, viz, what test for locus standi is to be applied in cases involving constitutional rights. The determination of the applicable test for locus standi in this specific context is logically a prior issue to the determination of whether that test has been satisfied on the facts of this case (which is Issue 3).

  118. Tan’s case

  119. [66] Mr Ravi submits that the Karaha Bodas test for standing is satisfied on the facts of the present case. In the alternative, he submits that even if the Karaha Bodas test is not satisfied, Tan still has standing by way of an exception to the Karaha Bodas test. For the purposes of Issue 2, we are interested in whether this alternative submission, which is set out in the next paragraph, is open to Mr Ravi.

  120. [67] Mr Ravi interprets Eng Foong Ho and others v Attorney-General [2009] 2 SLR(R) 542 (“Eng Foong Ho”) as laying down the proposition that a lower threshold of standing is applicable in constitutional cases by way of an exception to the Karaha Bodas test. He even goes so far as to contend that Tan need not have suffered a violation of his personal rights in order to have standing. Further or in the alternative, he submits that applicants in constitutional cases who wish to challenge the constitutionality of a particular law do not need to be prosecuted under that law before they are found to have standing, citing Colin Chan and a number of Commonwealth cases in support of his submission.

  121. The AG’s case

  122. [68] Mr Abdullah argues that the test for locus standi in constitutional challenges is the Karaha Bodas test. He contends that Tan’s submission of a lower threshold rests on a misapprehension of Eng Foong Ho and Colin Chan, and that there was no indication in Colin Chan that a different test of standing was being applied. He argues that far from obviating the requirement of a violation of personal rights or a personal injury, Colin Chan instead stands for the proposition that the threshold of “sufficient interest” must be met even in constitutional challenges. Further, Mr Abdullah argues that the criterion of “sufficient interest” stated at [14] of Colin Chan is a general concept which the court will need to apply to the specific facts of each case, and it thus cannot be said that “sufficient interest” is necessarily a more lenient standard than that set out in Karaha Bodas.

  123. Our analysis and decision

  124. [69] In Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 at 27, the majority of the Malaysian Supreme Court ruled that to possess locus standi, an applicant must show that he had a private right which had been infringed. If a public right was involved, the applicant must show that he had suffered special damage as a result of the public act being challenged and that he had a genuine private interest to protect or further. It is not disputed that in the present appeal, the rights concerned are not public rights. To clarify the terminology used here, a public right is one which is held and vindicated by public authorities, whereas a private right is one which is held and vindicated by a private individual. Therefore, despite being a matter of public law, a constitutional right is a private right as it is held and can be vindicated by individuals on their own behalf.

  125. [70] The crux of Issue 2 is whether the test for locus standi in applications involving constitutional rights is different from, and less strict than, the Karaha Bodas test. This is an enormously significant matter as the courts have a heavy responsibility to sieve the wheat of merit from the chaff of frivolity. That is to say, while access to justice must not be impeded, the court’s processes must not be allowed to be abused by those with improper collateral motives.

  126. The Karaha Bodas test

  127. [71] In Karaha Bodas, which involved two appeals, the applicant sought a declaration under the then equivalent of O 15 r 16 of the Rules (viz, O 15 r 16 of the Rules of Court (Cap 322, R 5, 2004 Rev Ed)) that a monetary debt be held by the respondent in the second appeal on trust for the respondent in the first appeal, and an order that the former repay the said sum to the latter in Hong Kong. It can be seen that the private rights involved in Karaha Bodas were not constitutional rights.

  128. [72] The Karaha Bodas test provides that the following elements must be met in order for an applicant to possess locus standi to bring an action for a declaration under O 15 r 16 of the Rules (“O 15 r 16”):

  129. (a) the applicant must have a “real interest” in bringing the action (at [19]);

  130. (b) there must be a “real controversy” between the parties to the action for the court to resolve (at [19]); and

  131. (c) the declaration must relate to a right which is personal to the applicant and which is enforceable against an adverse party to the litigation (at [15], [16] and [25]).

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