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Licensed Unlicensed Requires Authentication Published by De Gruyter February 8, 2017

According to the Spirit and not to the Letter: Proportionality and the Singapore Constitution

  • Jack Tsen-Ta Lee

    Assistant Professor of Law with the School of Law, Singapore Management University (SMU). He wishes to thank Fabian Tan Yingquan, Kimberly Tan Shu Yi, Thiagesh Sugumaran and Sui Yi Siong who assisted with research at various stages, and the SMU for providing a research grant (C234/MSS10L005) to support the writing of this article.

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From the journal ICL Journal

Abstract

When interpreting the fundamental liberties in the Singapore Constitution, courts presently do not engage in a proportionality analysis - that is, a consideration of whether limitations on rights imposed by executive or legislative action bear a rational relation with the object of the action, and, if so, whether the limitations restrict rights as minimally as possible. The main reason for this appears to be the expansive manner in which exceptions to the fundamental liberties are phrased, and the courts’ deferential attitude towards the political branches of government. This paper considers how the rejection of proportionality has affected the rights to freedom of expression and assembly, and freedom of religion, and argues that although proportionality was originally a European legal doctrine, its use in Singapore is not only desirable but necessary if the Constitution is to be regarded as guaranteeing fundamental liberties instead of merely setting out privileges that may be abridged at will by the Government.

About the author

Jack Tsen-Ta Lee

Assistant Professor of Law with the School of Law, Singapore Management University (SMU). He wishes to thank Fabian Tan Yingquan, Kimberly Tan Shu Yi, Thiagesh Sugumaran and Sui Yi Siong who assisted with research at various stages, and the SMU for providing a research grant (C234/MSS10L005) to support the writing of this article.

Published Online: 2017-2-8
Published in Print: 2014-9-1

© 2017 by Walter de Gruyter Berlin/Boston

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