Article 12 of the Constitution of the Republic of Singapore guarantees to all persons equality before the law and equal protection of the law. The Article also identifies four forbidden classifications – religion, race, descent and place of birth – upon which Singapore citizens may not be discriminated for specific reasons. For example, discrimination on those classifications is prohibited in the appointment to any office or employment under a public authority or in the administration of any law relating to the establishing or carrying on of any trade, business, profession, vocation or employment.
Persons unable to show that one of the forbidden classifications applies to them may try to argue that they are members of a group defined by a law in a way that violates the general guarantee of equality and equal protection. To succeed, they must establish that the classification used in the law fails the rational nexus test, which is a three-stage test formulated by the courts. The first stage of the test involves an examination as to whether the law differentiates amongst classes of individuals. At the second stage, the court considers if the differentiation is founded on an intelligible differentia or distinguishing feature. Finally, the basis of the differentiation must bear a reasonable relation to the object of the statute. However, the test is not foolproof as a classification may satisfy the test even if the object of the law is itself illegitimate. The rational nexus test, as it is currently applied in Singapore, also tolerates over- and under-inclusive classifications. It remains to be seen if local courts will consider other approaches to the issue, such as the three-tier system of scrutiny applied in the United States, the proportionality analysis applied in the United Kingdom to other areas of human rights law, or the reasonableness approach taken by some judges in India and Malaysia.
The rational nexus test does not apply where a statute treats all persons equally, but it is alleged that the authorities have applied the statute in a discriminatory manner. Instead, a modified rational nexus test is used, which requires a court to consider whether there is a reasonable nexus between the state action taken and the object of the law. Such a nexus will be absent if the action amounts to intentional and arbitrary discrimination or intentional systematic discrimination. It is insufficient if any inequality is due to inadvertence or inefficiency, unless this occurs on a very substantial scale. In addition, inequalities arising from a reasonable administrative policy or which are mere errors of judgment are insufficient to constitute a violation of Article 12(1).
Article 12(3) of the Constitution provides that Article 12 does not invalidate or prohibit any provision regulating personal law; or any provision or practice restricting office or employment connected with the affairs of any religion, or of an institution managed by a group professing any religion, to persons professing that religion.
Text of Article 12
Article 12 of the Constitution of the Republic of Singapore. is entitled "Equal protection" and reads as follows:
In the 1998 decision Public Prosecutor v. Taw Cheng Kong,Public Prosecutor v. Taw Cheng Kong SGCA 37, 2 S.L.R.(R.) 489, Court of Appeal (Singapore), archived from the original on 13 April 2009. the Court of Appeal regarded the concept of equality as a component of the wider doctrine of the rule of law, and traced its origin to the 40th article of the Magna Carta of 1215 which states: "To none will we sell, to none will we deny, to none will we delay right or justice."Taw Cheng Kong (C.A.), p. 505, para. 52; and see also . The version in force in the UK is Article 29 of the Magna Carta reissued by Edward I of England in 1297 which reads: "We will sell to no man, we will not deny or defer to any man either Justice or Right": Magna Carta 1297 (1297 c. 9). Article 12(1) of the Constitution bears a strong resemblance to the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution which prohibits any state from denying "to any person within its jurisdiction the equal protection of the laws", and to Article 14 of the Constitution of India which bars the state from denying "to any person equality before the law or the equal protection of the laws within the territory of India". Article 12(1) is identical to Article 8(1) of the Constitution of Malaysia, from which it was adopted following Singapore's independence from Malaysia in 1965., s. 6(1).
In Lim Meng Suang v. Attorney-General (2013), the High Court noted that the concept of equality before the law is derived from English common law which requires all classes of persons to be equally subject to the law, while the concept of equal protection of the law stems from the US Constitution's Fourteenth Amendment and guarantees both procedural and substantive equality.Lim Meng Suang, pp. 130–132, paras. 35–37. The Court said:Lim Meng Suang, p. 132, para. 38.
Discriminatory classification
Forbidden classifications Article 12(2) of the Constitution prohibits discrimination against Singapore citizens (unlike Article 12(1) which applies to "all persons") "on the ground only of religion, race, descent or place of birth" in the following situations:
In any law. In the appointment to any office or employment under a public authority. In the administration of any law relating to (1) the acquisition, holding or disposition of property; or (2) the establishing or carrying on of any trade, business, profession, vocation or employment.
The word only raises the possibility that discrimination may be permissible on the basis of one of the proscribed grounds in combination with some other factor, such as age or state of health.
Article 12(2) is subject to an express contrary authorization by the Constitution. Article 39A empowers the Legislature to ensure that members of the Malay, Indian and other minority communities are represented in Parliament by enacting a law to create Group Representation Constituencies (GRCs). Each voter in a GRC casts his or her ballot for a team of candidates, at least one of whom must be from a minority community.Constitution, Arts. 39A(1) and (2). Article 39A(3) exempts any provision enacted by Parliament pursuant to Article 39A from being void due to inconsistency with Article 12.
Another provision that is rescued from potential invalidity by Article 12(2) is the Government's constitutional mandate to exercise its functions in such a way as to recognize the special position of the Malays, who are the indigenous people of Singapore. The Government has a responsibility to "protect, safeguard, support, foster and promote their political, educational, religious, economic, social and cultural interests and the Malay language".Constitution, Art. 152(2). The Constitution also requires the Legislature to enact legislation to regulate Muslim religious affairs and to establish a council to advise the President concerning matters relating to Islam.Constitution, Art. 153. The legislation in question is the Administration of Muslim Law Act..
Other discriminatory classifications: the rational nexus test Aggrieved persons who cannot avail themselves of the protection afforded by Article 12(2) may try to argue that they are a member of a group defined by a law in a way that violates Article 12(1). The rational nexus test, also known as the doctrine of reasonable classification, is a three-stage test formulated by the courts to determine if the manner in which a law classifies a group of persons is discriminatory. The equality guaranteed by the provision is a relative and not an absolute concept; it does not require that all persons are treated alike, but rather that all persons in like situations should be treated alike.Taw Cheng Kong v. Public Prosecutor 1 S.L.R.(R.) 78 at 92, para. 27, H.C. (Singapore).Taw Cheng Kong (C.A.), p. 506, para. 54. Consequently, a law that differentiates between classes of persons is valid and constitutional provided that there is some difference in circumstances, and the factor which the legislature adopts as constituting the dissimilarity in circumstances is not purely arbitrary but bears a reasonable relation to the legislative object of the law., cited in Taw Cheng Kong (C.A.), p. 506, para. 54. If there is no such relationship, the difference is discriminatory and the impugned legislation is unconstitutional and invalid.
History In 1909, the Supreme Court of the United States propounded a test to determine the reasonableness of a classification, stating that the classification "must always rest upon some real and substantial distinction bearing a reasonable and just relation to the things in respect to which the classification is made".Southern Railway v. Greene , Supreme Court (United States). Based on this principle, the Supreme Court of India subsequently formulated a two-stage test to determine if a classification made by a law was constitutional. The relevant stages were (1) whether the classification was founded on an intelligible differentia; and (2) whether the differentia had a rational relation to the object sought to be achieved by the law in question..
The Federal Court of Malaysia later adapted the rational nexus test by including an additional preceding stage, namely, whether the law was discriminatory.Datuk Haji bin Harun Idris v. Public Prosecutor 2 M.L.J. [Malayan Law Journal] 155, Federal Court (Malaysia). This three-stage inquiry was accepted in Singapore in the case Kok Hoong Tan Dennis v. Public Prosecutor (1996).Kok Hoong Tan Dennis v. Public Prosecutor 3 S.L.R. (R.) 570 at 580, para. 36.
Stages of the test
The test that is currently followed in Singapore was re-expressed by the Court of Appeal in Taw Cheng Kong (1998) as comprising three stages:Taw Cheng Kong (C.A.) at pp. 507–508, para. 58, citing Malaysian Bar v. Government of Malaysia 2 M.L.J. 165 at 170, Supreme Court (Malaysia).
Whether the law differentiates – that is, prescribes different treatment – amongst classes of individuals. Whether the differentiation is founded on an intelligible differentia (distinguishing feature). Whether the basis of differentiation bears a reasonable relation to the object of the statute.
The purpose of the test is to ensure that the right to equal protection is upheld by guarding against three forms of arbitrariness. First, individuals in the same class must share common features and should not be classified arbitrarily. Secondly, the treatment of persons falling within the same class must not be arbitrary. Lastly, the basis of classification must not be arbitrary but should bear a reasonable relationship to the object of the executive action.Taw Cheng Kong (H.C.), p. 93, para. 29. The stages of the rational nexus test directly address these forms of arbitrariness. As such, a law that satisfies all the stages of the test will be found to be valid and constitutional.
Stage 1: Whether the law differentiates The first stage of the test considers whether the law prescribes different treatment for one group of individuals as against other groups. For example, in the 1998 High Court decision Taw Cheng Kong v. Public Prosecutor, Judge of Appeal M. Karthigesu found that the Prevention of Corruption Act. differentiated between classes of people as it renders some, but not all, persons open to criminal prosecution in Singapore for offences committed outside Singapore.Taw Cheng Kong (H.C.), p. 96, para. 37.