Article 12 of the Constitution of Singapore
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.
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).
(2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens of Singapore on the ground only of religion, race, descent or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.
(3) This Article does not invalidate or prohibit — In the 1998 decision Public Prosecutor v. Taw Cheng Kong,[3] 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.
The first expresses the immutable principle of equal subjection of all classes of persons to the law, and the second is the positive aspect of that principle which reaches out, when invoked, to strike down unequal laws and discriminatory administrative or executive action as unconstitutional and void.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: 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 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).
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".
[9] 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.
[15] 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.
[16] The Federal Court of Malaysia later adapted the rational nexus test by including an additional preceding stage, namely, whether the law was discriminatory.
[22] While earlier cases expressed this stage of the test as a determination of whether a law is discriminatory, the Court of Appeal has warned against the confusing of the concepts of differentiation and discrimination.
It is presumed that Parliament knows best for its people, and is experienced in making laws directed at societal problems, hence its differentiation is based on adequate grounds.
Examples of such features include gender, age, race, religion, seniority of professional qualification and area of residence.
[27] The law is not arbitrary if the basis for discrimination has a rational relation to the object sought to be achieved, and the statute will be declared valid and constitutional.
Under-inclusiveness occurs when the legislative classification fails to embrace all persons within the ambit of the objective sought to be achieved by the law.
[40] Despite this, resort to legislative wisdom to justify under-inclusiveness, if used indiscriminately, may result in the watering down of the equal protection guarantee provided by Article 12(1).
Although the Court noted that distinctions between citizens solely on the basis of ancestry "are, by their very nature, odious to a free people whose institutions are founded upon the doctrine of equality",[42] because the US was at war with Japan the race-based classification bore a rational relation to the aim of the order, which was to protect from sabotage war materials and utilities in areas believed to be in danger of Japanese invasion and air attack.
The Court said: "We cannot close our eyes to the fact, demonstrated by experience, that, in time of war, residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry.
[48] Further, the exercise of the Attorney-General's prosecutorial discretion was an executive act which satisfied the rational nexus test and was therefore not in contravention of Article 12 of the Constitution.
[49] In Yong Vui Kong v. Public Prosecutor (2010),[50] the Court of Appeal had to determine the validity of a differentiating factor prescribed by the legislature for distinguishing between different classes of offenders for sentencing purposes.
In that case, the differentiating factor was found in the Misuse of Drugs Act ("MDA"),[51] which stipulated that an accused trafficking in more than 15 grams (0.53 oz) of diamorphine (heroin) would result in him or her facing a mandatory death penalty upon conviction.
[54] In other jurisdictions, courts have applied standards of judicial review more exacting than the rational nexus test in Singapore when deciding if a law is unconstitutional.
In footnote 4 of United States v. Carolene Products Co. (1938),[55] Justice Harlan F. Stone opined that where legislation was aimed at "discrete and insular minorities" who lack the normal protections of the political process, a more exacting standard of judicial review with no presumption of constitutionality should be applied.
Firstly, if a law categorizes on the basis of race or national origin (which are regarded as suspect classifications), or infringes a fundamental right, strict scrutiny is applied.
[59] It held that the impugned Act was concerned with economic and social welfare and not fundamental rights, and therefore the trial judge had erred in applying a stricter standard of review.
[63] A test of reasonableness was applied to Article 8(1) of the Malaysian Constitution in some cases,[64] but it was later rejected by the Federal Court in Danaharta Urus Sdn.
[29] The rational nexus test is needed to determine if a law applies equally to all persons in the same group, and is therefore an "integral part" of Article 8(1).
[82] A number of private Acts establishing religious organizations expressly confine membership of their governing boards to persons professing the respective religions.
Article 154 states that all persons who are in the same Government service grade must be treated impartially regardless of their race, subject to the terms and conditions of their employment and to other provisions of the Constitution.
