Article 9 of the Constitution of Singapore

Contrary to the broad position taken in jurisdictions such as Malaysia and the United States, the High Court of Singapore has said that personal liberty only refers to freedom from unlawful incarceration or detention.

In Ong Ah Chuan v. Public Prosecutor (1980), an appeal to the Judicial Committee of the Privy Council from Singapore, it was held that the term law means more than just legislation validly enacted by Parliament, and includes fundamental rules of natural justice.

(5) Clauses (3) and (4) shall not apply to an enemy alien or to any person arrested for contempt of Parliament pursuant to a warrant issued under the hand of the Speaker.

[11] In the Malaysian case Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan (1996),[12] the appellant had appealed against his wrongful dismissal from employment on the grounds of procedural unfairness.

In the US Supreme Court case of Allgeyer v. Louisiana (1897),[20] where a Louisiana statute was struck down on the ground that it violated an individual's right to contract, it was held that liberty in the Fourteenth Amendment of the Constitution meant not only the right of the citizen to be free from any physical restraint of his person, but also the right to freely enjoy all his faculties – that is, to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts that may be proper, necessary, and essential to his carrying out those purposes.

The Court stated that liberty ... denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

[23]It was held in the Malaysian Court of Appeal case of Sugumar Balakrishnan v. Pengarah Imigresen Negeri Sabah (1998)[24] that the term life in Article 5(1) of the Constitution is not limited to mere existence, but is a wide concept that must receive a broad and liberal interpretation.

However, the apparent inconsistency could be resolved by permitting an ouster clause to immunise from judicial review only those administrative acts and decisions that are not infected by an error of law.

[29] In its view: ... it is the duty of a court to adopt a prismatic approach when interpreting the fundamental rights guaranteed under Part II of the Constitution.

[30] It has been suggested that since Article 9(1) of the Singapore Constitution is pitched at a high level of generality,[31] there is no limitation in the ordinary natural meaning of the phrase.

This could lead to a watering-down of the emphasis on fundamental liberties, as any infringement might be considered legitimate so long as the statute in question was validly enacted.

[34] However, in 1980 the Privy Council rejected this interpretation in the case of Ong Ah Chuan v. Public Prosecutor,[32] a decision on appeal from Singapore.

This appeal questioned the constitutional validity of section 15 of the Misuse of Drugs Act,[35] and one of the issues that had to be decided was the interpretation of the word law in Article 9(1).

[36] In a judgment delivered by Lord Diplock, the Privy Council rejected this interpretation, finding the Public Prosecutor's argument fallacious.

[42] In Ong Ah Chuan and the subsequent decision Haw Tua Tau v. Public Prosecutor (1981),[43] the Privy Council declined to set out a comprehensive list of fundamental rules of natural justice and merely stated some principles to deal with the issues at hand.

[50] Traditionally, at common law, natural justice is taken to be a procedural concept that embodies the twin pillars of audi alteram partem (hear the other party) and nemo iudex in causa sua (no one should be a judge in his or her own cause).

Substantive due process involves the courts assessing the reasonableness of executive actions and legislation using rational basis review if a fundamental right is not implicated and strict scrutiny if it is.

[52] Another argument against substantive natural justice is the fear that it may become an avenue for judges to invalidate laws on the basis of their own subjective opinions, leading to unbounded judicial activism.

On the other hand, it has also been suggested that substantive natural justice would merely be a full exercise of the judiciary's proper role as conferred by the Constitution.

In that case, the appellant argued that effecting a death sentence for drug trafficking by hanging is unconstitutional as a form of cruel and inhuman punishment not "in accordance with law".

The Court agreed that there was a prohibition against torture and cruel and inhumane treatment in Article 5 of the Universal Declaration of Human Rights and that this is considered customary international law.

However, a customary international law rule had to be "clearly and firmly established" before it was adopted by the courts,[59] and there was insufficient practice among states to hold that death by hanging was within the ambit of this prohibition.

[60] The Court of Appeal clarified in Yong Vui Kong v. Public Prosecutor (2010),[4] that customary international law cannot be read into the Constitution for two reasons.

[64] In Yong Vui Kong the Court of Appeal accepted that domestic law, including the Constitution, should "as far as possible" be consistently interpreted with Singapore's international obligations.

In Singapore, the Penal Code[71] lays out sanctions for non-compliance with the Termination of Pregnancy Act,[72] which limits abortion to women who have not been pregnant for more than 24 weeks.

[73] By not conferring the right to life upon fetuses younger than the stipulated period, the legislation has accorded greater weight to the safety and security of expectant mothers who are threatened by their unborn children.

[74] Similarly, the Charter of Fundamental Rights and Basic Freedoms of the Czech Republic states that human life deserves to be protected before birth.

The majority held that as assisted suicide is not a fundamental liberty interest, it was not protected under the due process clause of the Fourteenth Amendment.

Preventive detention is the use of executive power to detain individuals on the basis that they are predicted to commit future crimes that will threaten national interest.

[92] Section 8(1) of Singapore's Internal Security Act ("ISA")[93] gives the Minister for Home Affairs the power to detain a person without trial for any period not exceeding two years on the precondition that the President is: "satisfied ... that ... it is necessary to do so ... with a view to preventing that person from acting in any manner prejudicial to the security of Singapore ... or to the maintenance of public order or essential services therein".