JUDICIAL PRECEDENT IN EMERGING CONSTITUTIONAL JURISDICTIONS: FORMULATING A DOCTRINE OF . CONSTITUTIONAL STARE DECISIS FOR SINGAPORE

Kenny Chng*

Abstract: The binding effect of judicial precedents in constitutional law — constitutional stare decisis — raises unique considerations. Being authoritative pronouncements on the proper interpretation of the Constitution, judicial precedents are essential for the effective working of constitutional governance as components of constitutional law: but they are merely judicial precedents and as such susceptible to being overturned. These considerations have been the subject of signifi cant attention in mature constitutional jurisdictions. For instance, in the US Supreme Court, there is a well-established doctrinal framework within which stare decisis operates. However, there does not appear to be in younger constitutional democracies the same serious consideration of how the doctrine of stare decisis should operate in the area of constitutional law. This article aims to investigate how younger constitutional jurisdictions, such as Singapore, can draw upon the experience of other jurisdictions in this regard, and will seek to propose a principled constitutional stare decisis framework that builds upon such experience and is normatively justifi able in the Singapore context.

Keywords: Singapore; constitutional law; stare decisis; precedent; Planned Parenthood v Casey; US Supreme Court

I. Introduction

In constitutional democracies of the common law tradition governed by a written constitution, such as the United States of America (United States), judicial precedents play a crucial part in the interpretation and enforcement of the constitution. Because of “their importance to the architecture of government and their impact on the fundamental relationship between sovereign and citizen” in a constitutional democracy, constitutional judicial precedents have a unique prestige and authority.1 By virtue of this close relationship between constitutional judicial precedents and the constitution, the rule of law concerns of legitimacy and

* Kenny Chng, Assistant Professor of Law, Singapore Management University School of Law, 55 Armenian Street, Singapore 179943. [email protected]. The author is deeply grateful to Professor Anton Cooray, Professor of Law, City, University of London and Associate Professor Jaclyn L Neo, Associate Professor of Law, National University of Singapore, for their comments and advice on this article. Any mistakes or omissions remain the author’s responsibility. 1 Randy J Kozel, Settled versus Right: A Theory of Precedent (Cambridge University Press, 2017) p.27. [(2020) 7:1 JICL 127–154]

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stability apply with particular force to such precedents, since the overruling of such precedents can potentially “transform entire areas of law as well as fundamental. social relationships”.2 Yet, constitutional precedents, just like precedents in any other areas of law, can be overturned. Notwithstanding their importance and proximity to the fundamental law of the land, constitutional judicial precedents are distinct from the Constitution itself and are certainly not equal in standing to the text of the Constitution. Indeed, Richard Fallon has observed that while constitutional precedents are highly authoritative and infl uential sources of constitutional law, even long-standing constitutional precedents can be overruled based on differing interpretations of the relevant constitutional provisions.3 These considerations present diffi cult and interesting questions for courts faced with an argument that a particular constitutional precedent should be overruled. How should judges strike a balance between these considerations in coming to a decision? What kinds of factors can judges legitimately take into account? These questions have been the subject of a well-developed body of literature in mature constitutional jurisdictions. For example, in relation to US Supreme Court constitutional precedents, a well-established doctrinal framework exists to govern judicial consideration of such issues. However, these issues may not have received the same attention in relatively younger constitutional democracies, such as Singapore. Yet, constitutional stare decisis will inevitably become increasingly important in such jurisdictions as their constitutional jurisprudence matures with the passage of time. This article aims to investigate how younger constitutional jurisdictions can draw upon the experience of mature jurisdictions in developing a principled approach to constitutional stare decisis. As a matter of methodology, it will proceed in three sections. Section II of this article will study the theory and doctrine of constitutional stare decisis in mature constitutional jurisdictions, drawing upon both academic literature and case law. Section III will identify the principles that Singapore judges have taken into account as a matter of fact in their analysis of constitutional precedents, even though they may not have articulated such considerations expressly as stare decisis principles. This will provide a useful example of how a relatively young common law jurisdiction has dealt with constitutional stare decisis issues. Section IV will synthesise the fi ndings of the preceding parts of this article into a principled constitutional stare decisis framework that builds upon the experience of mature constitutional jurisdictions and is at the same time normatively justifi able in the Singapore context. This article will propose that a factor-based approach to stare decisis analysis is best-suited for Singapore constitutional law. Whether a judicial precedent is wrong in law should be the primary consideration in this analysis. The procedural workability of the precedent and the reliance interests it has engendered should

2 Note, “Constitutional Stare Decisis” (1990) 103(6) Harvard Law Review 1344, 1350. 3 Richard H Fallon Jr, Law and Legitimacy in the Supreme Court (Harvard University Press, 2018) pp.80–81.

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be relevant considerations, albeit given less weight than incorrectness as a matter of law. For the avoidance of doubt, the focus of this article is on horizontal stare. decisis; that is, stare decisis in relation to the decisions of the highest court vis- à-vis its previous decisions.4 This article does not address vertical stare decisis, which is concerned with the relationship between decisions of the highest court and decisions of lower-level courts.

II. ConstitutionalStare Decisis — Comparative Insights

This section is concerned with identifying the lessons that we can draw from mature constitutional jurisdictions in the common law world as regards the proper judicial approach to stare decisis in constitutional law. First, we will briefl y set out the theoretical underpinnings of judicial precedents in constitutional law. We will then examine the possible legal approaches towards constitutional precedents that have been suggested and adopted in mature constitutional jurisdictions.

A. Th eoretical underpinnings of constitutional stare decisis In relatively mature constitutional jurisdictions, constitutional precedents are generally treated differently from regular non-constitutional judicial precedents. For example, it is widely accepted in the United States and Australia that constitutional precedents should be (and are indeed) treated uniquely as a matter of stare decisis analysis.5 There are competing views in the case law and academic literature regarding the implications of the uniqueness of constitutional precedents, or precedents on constitutional interpretation. One view is that the rule of law concerns of legitimacy and stability rise to the fore and become particularly accentuated in relation to constitutional precedents, in comparison to other forms of judicial precedent (precedents on statutory interpretation or application of common law).6 Since overruling constitutional precedents can have a potentially wide-ranging impact across the law and the political community,7 judges should be relatively more reluctant to overrule them. The opposing view is that judges should be relatively more prepared to overrule constitutional judicial precedents, as compared to judicial precedents relating to ordinary statutory interpretation. The difference between statutory interpretation and constitutional interpretation

4 SeeKozel, Settled versus Right: A Theory of Precedent (n.1), pp.19–21; Michael Adams, “Escaping the Straitjacket: Canada (Attorney General) v. Bedford and the Doctrine of Stare Decisis” (2015) 78(2) Saskatchewan Law Review 325, 328. 5 For an elaboration of this feature of US constitutional jurisprudence, see Kozel, Settled versus Right: A Theory of Precedent (n.1), p.27. Australia, which also operates as a constitutional supremacy, abides by a similar principle: see Gian Boeddu and Richard Haigh, “Terms of Convenience: Examining Constitutional Overrulings by the High Court” (2003) 31(1) Federal Law Review 167, 168–169. 6 Kozel,Settled versus Right: A Theory of Precedent (n.1), p.27. 7 See works referred to in note 2.

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is that, while the legislature may with relative ease (for instance, with a simple majority in the legislature) amend legislation in order to override a judicial. interpretation that the legislature fi nds unacceptable, it is much more diffi cult for the legislature to amend the constitution (for instance, it might involve approval by a two-thirds majority in the legislature and, in some circumstances, approval by the people at referendum).8 Accordingly, judges must be more prepared to depart from past precedents in the realm of constitutional law, for instance, where a previous judicial precedent proves to be wrongly decided or needs to be given a different interpretation in order to meet changing social circumstances.9 Whatever view is taken, the key point for the purposes of this article is that mature constitutional jurisdictions accept that the unique considerations raised by constitutional precedents merit a unique analysis and a special legal approach as compared to non-constitutional judicial precedents. A second and closely related point is that one’s view of the proper approach that should be taken towards constitutional precedents will be profoundly infl uenced by one’s preferred theory of constitutional interpretation. This is a point that will become abundantly clear as we proceed in this section. Delving into this issue in considerable detail, Randy Kozel points out that originalists such as Gary Lawson and Michael Stokes Paulsen have emphasised the superiority of the written constitution in the legal order, and as a corollary of this emphasis, have argued that fl awed judicial precedents, assessed by originalist standards, 10 must always be overruled if the constitution is to be accorded its rightful place in the hierarchy of legal norms.11 In contrast, Kozel notes that a living constitutionalist approach to the constitution — for example, the version articulated by David Strauss — would take a signifi cantly more deferential approach to judicial precedent.12 On this view, constitutional precedents play a crucial part in the evolution of

8 Kozel, Settled versus Right: A Theory of Precedent (n.1), p.27; Amy Coney Barrett, “Precedent and Jurisprudential Disagreement” (2013) 91 Texas Law Review 1711, 1713; Michael J Gerhardt, “The Role of Precedent in Constitutional Decision-Making and Theory” (1991) 60 George Washington Law Review 68, 76–77. 9 A most telling example is the case of Brown v Board of Education 347 US 493 (1954) where US Supreme Court famously held that it would be a breach of the Fourteenth Amendment to segregate white and black students in public schools, disagreeing with the “separate but equal” doctrine adopted by the court in 1896 in Plessy v Ferguson, 163 US 537. Instructively for our purpose, Warren CJ said: “In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout”. See also Kozel, Settled versus Right: A Theory of Precedent (n.1), p.27. 10 Originalism has different meanings. This is merely an example of one such originalist theory. See, eg, Gary Lawson, “The Constitutional Case against Precedent” (1994) 17 Harvard Journal of Law and Public Policy 23, 26; Michael Stokes Paulsen, “The Intrinsically Corrupting Infl uence of Precedent” (2005) 22 Constitutional Comment 289, 289; and Kozel, Settled versus Right: A Theory of Precedent (n.1), pp.61–63. 11 Kozel,ibid . 12 David A Strauss, “Common Law Constitutional Interpretation” (1996) 63 University of Chicago Law Review 877, 895; Kozel, Settled versus Right: A Theory of Precedent (n.1), p.63.

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constitutional law.13 At the same time, this does not mean that precedents can never be overruled: they can, if they are judged to be “terribly wrong”.14 Accordingly,. it is crucial to distinguish merely erroneous precedents from egregiously fl awed precedents: there may be good reasons for the former to remain valid law, but the latter may be validly overruled.15 A fi nal theoretical consideration that should be borne in mind, as one considers the proper legal approach to constitutional precedents, is that the approach taken in any given jurisdiction will often be a refl ection of the courts’ vision of their role in the constitutional order. Indeed, stare decisis more generally is a judge- made doctrine of self-imposed restraint. Applied to constitutional law, judges’ conceptions of their role in the constitutional order will profoundly infl uence the extent to which they will feel the need to be so self-restrained. Indeed, the nature of the issues raised in constitutional law will tend to bring these considerations to the fore. For example, to the extent that judges in a given constitutional order view themselves as the primary defenders of justice,16 they may be less (but not necessarily) inclined towards a robust doctrine of constitutional stare decisis that would place strict limits on themselves in a manner that would hamper performance of their perceived primary function. On the other hand, if judges in a given constitutional order are keenly aware of the limits of their judicial function, as evinced, for example, in expressions of deference towards other branches of government,17 they may be relatively more inclined towards a stricter form of stare decisis.

B. Approaches to constitutional precedent Having regard to the academic literature and case law in mature constitutional jurisdictions such as the United States on constitutional stare decisis, one can discern two broad categories of legal approaches towards constitutional precedents: principle-based approaches and factor-based approaches. Each broad category can be divided into two sub-categories.18

13 Kozel,ibid . 14 Strauss “Common Law Constitutional Interpretation” (n.12), 895; Kozel, Settled versus Right: A Theory of Precedent (n.1), p.63. 15 Kozel,ibid. , pp.63–64. 16 See the Singapore Court of Appeal decision in Yong Vui Kong v Public Prosecutor [2010] 3 SLR 489, 527–528, for an example of a rejection of such a view, in contrast to the Indian Supreme Court decision in Mithu v State of Punjab AIR 1983 SC 473. 17 For examples of such deference in the Singapore context, see Tan Seet Eng v Attorney-General [2016] 1 SLR 779, 817–818, and Lim Meng Suang v Attorney-General [2015] 1 SLR 26, 32–24, 60–61. 18 All four sub-categories broadly correspond to Thomas Healy’s models of stare decisis — see Thomas Healy, “Stare Decisis and the Constitution: Four Questions and Answers” (2008) 83 Notre Dame Law Review 1173, 1207–1209.

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(i) Principle-basedapproaches . Of the two sub-categories of principle-based approaches, the fi rst takes the view that precedent is in principle superior to other types of constitutional reasoning and the other takes the view that precedent is in principle inferior to other types of constitutional reasoning. The fi rst approach takes the view that precedent is absolutely binding and can never be overruled regardless of how strongly a court disagrees with a previous decision or how impracticable it has become.19 This, however, was never a view that American courts adhered to, even in the early years of American constitutional history. There were instances where the US Supreme Court refused to follow judicial precedents that they did not agree with.20 We will not discuss this principle any further. The second approach suggests that constitutional precedent presumptively loses out to other sources of constitutional law, such as original meaning, as a matter of principle.21 Such approaches have been referenced earlier. Indeed, the approaches to constitutional precedent espoused by Paulsen and Lawson fall neatly within this category.22 These approaches place an overriding emphasis upon the “correctness” of precedents as measured by the constitution’s text and/or its original public meaning. Where a precedent is found to be inaccurate by these standards, such a precedent must be overruled as a matter of principle.23 For example, Guido Calabresi has argued that where the text of the “brief, abstractly worded” constitution clearly confl icts with a precedent, the courts must always follow the text of the constitution instead of the precedent.24

19 Healy,ibid. , 1207; Neil Finkelstein and Ronald Podolny, “Canada v. Craig — The Common Law as the Servant of Society” (2012) 91(2) Canadian Bar Review 455, 459; Patrick H Glenn, “The Common Law in Canada” (1995) 74(2) Canadian Bar Review 261, 265–266; and London Tramways v LCC [1898] AC 375. 20 Healy “Stare Decisis and the Constitution: Four Questions and Answers” (n.18), 1194–1195. The House of Lords in England had embraced this principle only to free itself from it with the publication of its Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. 21 Ibid., 1208. 22 David L Shapiro, “The Role of Precedent in Constitutional Adjudication: An Introspection” (2008) 86 Texas Law Review 929, 932. 23 Fallon,Law and Legitimacy in the Supreme Court (n.3), pp.133–134. 24 Steven G Calabresi, “Text, Precedent, and the Constitution: Some Originalist and Normative Arguments for Overruling Planned Parenthood of Southeastern Pennsylvania v. Casey” (2005) 22 Constitutional Comment 311, 328. However, it should be noted that not all originalists take such a sceptical view of precedent. Some originalists believe that it is possible to reconcile respect for precedent with originalist interpretive theory. For example, John McGinnis and Michael Rappaport proposed the application of consequentialist reasoning to assess the benefi t of a constitutional precedent: if a consequentialist calculus leaned in favour of retaining the precedent, such a precedent could be retained notwithstanding its confl ict with originalist reasoning. See, eg, John O McGinnis and Michael B Rappaport, Originalism and the Good Constitution (Cambridge, MA: Harvard University Press, 2013) pp. 154–196.

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(ii) Factor-basedapproaches . Here, the emphasis is not so much on a principle — whether a judicial precedent may or may not be departed from — but on what factors a court must take into account in deciding whether or not to depart from a previous decision. Planned Parenthood v Casey (Casey)25 provides a good example. In that case, the US Supreme Court considered the following factors as it deliberated over whether Roe v Wade (Roe)26 ought to be overruled: Has the decision become practically unworkable? Would overruling the decision adversely affect the reliance interests generated by it? Have later related developments in law rendered that decision simply a historical incident? Have facts so changed that the old rule has lost much of its signifi cance?27 Of the two sub-categories of factor-based approaches, the fi rst is a strong presumption approach. On this view, precedents ought to be accorded strong presumptive weight, meaning that errors cannot in themselves be reasons to overrule a precedent, unless there are additional compelling reasons to do so. 28 The second can be described as a moderate presumption approach. On this view, precedents ought to be accorded presumptive weight, but if a precedent is erroneous, the fact of error in itself can serve as a justifi cation for its overruling.29 Nevertheless, both sub-categories are united in affi rming that in stare decisis analysis, courts must properly weigh and balance various factors that are relevant in such a decision. There are several factors that have been considered to be relevant by both judges and commentators espousing an approach falling within the broad category of factor-based approaches. The fi rst relevant consideration is the procedural workability of the constitutional precedent. This was one of the factors that the US Supreme Court regarded as relevant in Casey.30 In a similar vein, in Johnson v United States,31 the US Supreme Court suggested that precedents which increase “uncertainty and arbitrariness” ought to be reconsidered. In Kozel’s view, a precedent is workable if the rule can be easily understood and applied by judges, lawyers and other stakeholders, thus excluding rules which are “hopelessly convoluted or exceedingly vague”.32 On this view, the procedural workability of the precedent has nothing to do with its “correctness” as a matter of legal reasoning or substantive justice. However, as John McGinnis and Michael Rappaport have suggested, while unworkable precedents should not be followed, the workability of

25 505 US 833 (1992). 26 410 US 113 (1973). 27 See works referred to in note 25. 28 Healy, “Stare Decisis and the Constitution: Four Questions and Answers” (n.18), 1207. 29 Ibid., 1209. 30 Planned Parenthood v Casey (n.27), 854–855. 31 135 S Ct 2551, 2562 (2015). 32 Kozel,Settled versus Right: A Theory of Precedent (n.1), p.110.

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a precedent in itself should not infl uence a determination of whether the precedent should be followed.33 . The second relevant consideration is the factual accuracy of a precedent. In Casey, one of the reasons for the US Supreme Court to uphold Roe was the fact that factual developments since Roe had not rendered its central holding irrelevant or unjustifi able.34 While time had overtaken some of Roe’s factual assumptions, these factual changes had no bearing on the validity of Roe’s central holding, namely that viability marks the earliest point at which the state’s interest in foetal life is constitutionally adequate to justify a legislative ban on non-therapeutic abortions.35 The relevance and weight of factual accuracy of a precedent has been doubted, however. For example, Thomas Healy argues that “elected offi cials are better equipped to make empirical judgments than courts and may also be more in tune with societal understandings than unelected judges”.36 The third relevant consideration is the reliance interest that has been generated by the previous precedent and the extent of disruption that overruling them would cause. In Casey, for instance, the US Supreme Court considered overruling Roe undesirable because people had arranged their intimate affairs and made important choices relying on it. The underlying normative consideration is that adherence to precedent protects legitimate expectations.37 If constitutional precedents are constantly overruled, the fabric of constitutional law becomes uncertain and diffi cult to predict, making it diffi cult for lawyers and citizens to determine how to act in accordance with the law.38 In addition, there are signifi cant costs to overruling a constitutional precedent relying on which generations of people have ordered their lives, even if the precedent is erroneous by any standard.39 Fallon has emphasised the importance of this consideration, arguing that “the normative pressure to adhere to past decisions becomes especially great when large portions of the public have come to rely on the programs or policies that such decisions validated”. He raises the legality of paper money in the United States as a pertinent example.40 As Amy Coney Barrett has pointed out, an adherence to precedent can be useful in protecting reliance interests insofar as doing so places attempts to overturn existing

33 McGinnis and Rappaport, Originalism and the Good Constitution (n.24), p.190. 34 Planned Parenthood v Casey (n.27), 860–861. 35 Ibid. The Supreme Court observed that advances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973 and advances in neonatal care have advanced viability to a point somewhat earlier. 36 Healy “Stare Decisis and the Constitution: Four Questions and Answers” (n.18), p.1218. See also McGinnis and Rappaport, Originalism and the Good Constitution (n.24), pp.190–191. 37 Kozel,Settled versus Right: A Theory of Precedent (n.1), p.29. 38 Ibid., p.47. 39 Ibid., p.49. 40 Fallon, Law and Legitimacy in the Supreme Court (n.3), p.99. In the Legal Tender Cases, 79 US 457 (1870) the US Supreme Court decided that Congress could validly make Treasury notes a legal tender for the discharge of debts, rejecting, inter alia, an argument that the coinage clause of the US Constitution allowed only precious metals to be declared by law to be money. See Legal Tender Cases, ibid., 544–547.

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law at an institutional disadvantage, moderating knee-jerk convictions of rightness and preserving continuity.41 . Commentators have disagreed, however, as to the extent that reliance interests should be relevant in stare decisis analysis. Kozel argued that while reliance interests in commercial transactions, as well as reliance by governmental offi cials, should be relevant, a vague appeal to reliance by society at large, as the Supreme Court in Casey made, should not be relevant.42 In his view, such reliance is much too ambiguous and beyond the scope of judicial competence to determine. Akhil Reed Amar, on the other hand, would view broader societal reliance as at least relevant in stare decisis analysis, even if the proper remedy may not necessarily be to overturn the precedent.43 Fallon, while accepting that “stable expectations” should be relevant in stare decisis analysis, cautioned against their usage as a veto factor — a precedent should be susceptible to overruling if all other considerations pointed towards that conclusion.44 The fourth relevant consideration is the incorrectness of the precedent as a matter of law. Indeed, correctness as a matter of law has played an important part in stare decisis discussions of many scholars, including David Shapiro’s and Michael Gerhardt’s.45 Correctness as a matter of law can cover correctness in various forms, such as, coherence with other precedents and correctness of legal reasoning as a matter of logic or constitutional interpretation. Other academics have doubted the relevance of this factor. McGinnis and Rappaport argue that while a precedent which does not sit easily with other precedents should indeed be more prone to being overruled, a precedent need not remain untouched merely because it is coherent with other precedents.46 Kozel goes further and argues that “incorrectness” should be excluded entirely from stare decisis analysis. In his view, any analysis of “correctness” runs the risk of entrenching interpretive debates into stare decisis analysis, radically undermining the proper role of stare decisis in constitutional law.47 Since judges disagree with each other signifi cantly on constitutional interpretive methodology,48 different judges may come to different conclusions on the correctness of a constitutional precedent.49 To illustrate, originalist theorists such as Lawson and Paulsen take the view that “incorrectness” should be measured by reference to

41 Barrett “Precedent and Jurisprudential Disagreement” (n.8), 1731–1732. 42 Kozel,Settled versus Right: A Theory of Precedent (n.1), p.117. 43 Akhil Reed Amar, “On Text and Precedent” (2008) 31 Harvard Journal of Law and Public Policy 961, 966. 44 Richard H Fallon Jr, “A Constructivist Coherence Theory of Constitutional Interpretation” (1987) 100(6) Harvard Law Review 1189, 1261–1262. 45 Shapiro “The Role of Precedent in Constitutional Adjudication: An Introspection” (n.22), 944–945; Gerhardt “The Role of Precedent in Constitutional Decision-Making and Theory” (n.8), 140–141. 46 McGinnis and Rappaport, Originalism and the Good Constitution (n.24), p.190. 47 Kozel,Settled versus Right: A Theory of Precedent (n.1), pp.118–121. 48 Ibid., pp.94–96. 49 Ibid., p.12.

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the Constitution’s original public meaning, and nothing else,50 a view that scholars and judges adopting a differing constitutional interpretive methodology will surely. disagree with. As such, Kozel argues that, for judicial precedents to properly serve their function of preserving objectivity in constitutional law, uniting judges of varying interpretive stripes, there is a compelling need to adopt an approach to constitutional precedents which is independent of disagreements over interpretive methodology.51 The fi fth relevant consideration is the incorrectness of a precedent as a matter of morality or justice. For example, Fallon suggests that moral judgments are a permissible source of constitutional meaning in judicial evaluation of precedents, and argues that even though judges should be cognisant of their responsibility to ensure stability, clarity and consistency of law, this obligation “does not hold when suffi ciently powerful legal or moral considerations call for a different course”. 52 Shapiro makes a similar point. In his view, a precedent should be overruled if it posed “a signifi cant obstacle to the pursuit of other important recognised objectives or the vindication of basic rights”.53 On the other hand, there has been some criticism of the relevance of morality and justice in constitutional stare decisis analysis. While accepting that morality of a precedent can become relevant in exceptional situations where the demands of justice are manifestly clear and unambiguous,54 Kozel argues that incorrectness of any stripe should still be generally irrelevant to stare decisis analysis. 55 It should be observed that Kozel’s arguments against the relevance of “correctness”, premised as they are upon protecting stare decisis analysis from intractable disagreements, apply with the greatest force against the applicability of this factor. This is because a consideration of morality brings to bear not only disagreements over constitutional interpretive methodology but also disagreements in the entire realm of moral philosophy. In other words, his concerns of pluralism between judges are magnifi ed tremendously when judges rely on this factor.

III. ConstitutionalStare Decisis in Emerging Constitutional Jurisdictions: A Case Study of Singapore

The preceding section surveyed general theoretical considerations that underlie any legal approach to constitutional stare decisis, and a catalogue of possible approaches that have been taken in more mature constitutional jurisdictions. Younger constitutional jurisdictions, however, have paid little attention both in

50 Ibid., pp.53–54. 51 Ibid., p.61. 52 Fallon,Law and Legitimacy in the Supreme Court (n.3), pp.100–101. 53 Shapiro “The Role of Precedent in Constitutional Adjudication: An Introspection” (n.22), 944–945. 54 Kozel,Settled versus Right: A Theory of Precedent (n.1), pp.14, 122. 55 Ibid., pp.121–122.

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academic literature and case law to constitutional stare decisis. Singapore provides a good example. While constitutional stare decisis as a distinct legal doctrine has. not attracted signifi cant judicial or academic attention in Singapore, constitutional stare decisis is likely to increase in importance when older precedents come up for consideration. Indeed, these issues have already arisen in Singapore.56 We will now proceed to study how a relatively young constitutional jurisdiction can tap on the experience of other constitutional jurisdictions to develop a robust doctrine of constitutional stare decisis that will sit nicely with its own political and constitutional context. This section of the article will fi rst seek to identify the de facto principles that Singapore judges have thus far applied in their consideration of constitutional precedents, although the Singapore courts may not have articulated such considerations expressly as part of an authoritative framework of constitutional stare decisis doctrine. Section IV will synthesise the insights from the preceding sections of this article to propose a principled stare decisis framework for Singapore.

A. Stare decisis in Singapore law generally The starting point of any discussion of stare decisis in Singapore is the 1994 Practice Statement (Judicial Precedent)57 (“1994 Practice Statement”) published by the Court of Appeal, the apex court of Singapore.58 The 1994 Practice Statement declared that the Court of Appeal would henceforth not be bound by its previous decisions and also those of the Privy Council, where adherence to such decisions would “cause injustice in a particular case or constrain the development of the law in conformity with the circumstances of Singapore”.59 This power to depart from previous judicial decisions would be exercised “sparingly”, in order to preserve certainty of law.60 While not specifi cally directed towards constitutional law, the 1994 Practice Statement illustrated two general considerations relevant to stare decisis analysis in Singapore. First, certainty and stability will weigh heavily against overruling a judicial precedent. Second, overruling a judicial precedent would be justifi ed if justice so requires, or if the precedent is an inadequate refl ection of “the fundamental values of Singapore society”.61 This statement in itself, however, does not provide suffi cient substantive content to facilitate a principled doctrinal approach to stare decisis. Indeed, although it has been suggested that the purpose of the 1994 Practice Statement was to allow incorrect decisions to be corrected, while at the same time

56 At the time of writing, fresh constitutional challenges to s.377A of the Singapore Penal Code have been brought before the Singapore courts. See Rei Kurohi, “Three Court Challenges Against Section 377A to Be Heard in November” The Straits Times (Singapore, 9 October 2019). Such challenges effectively amount to an invitation to overrule Lim Meng Suang v Attorney-General (n.17), where the Court of Appeal held that s.377A was constitutionally valid. 57 Practice Statement (Judicial Precedent) [1994] 2 SLR 689 (CA). 58 The Court of Appeal and the High Court constitute the Supreme Court of Singapore. The Court of Appeal hears civil and criminal appeals from the High Court. 59 Practice Statement (Judicial Precedent) (n.57). 60 Ibid. 61 Ibid.

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preserving public confi dence in the administration of justice,62 there is considerable controversy regarding what amounts to an “incorrect” constitutional precedent. . Nevertheless, while the Singapore courts have not expressly articulated a legal framework to govern the judicial approach to constitutional precedents, there are certain de facto considerations that the Singapore courts have consistently taken into account in constitutional stare decisis analysis. We will now proceed to identify these considerations.

B. Constitutional stare decisis considerations in Singapore (i) Change in legal matrix since the time of a previous judicial precedent The Singapore Court of Appeal has found it relevant to consider whether there has been a change in the legal matrix since the time of the judicial precedent in question.63 In Yong Vui Kong v Public Prosecutor64 (Yong Vui Kong), it was argued that being a cruel and inhuman punishment, the mandatory death penalty violated art.9 of the Singapore Constitution which provides that: “no person shall be deprived of his life or personal liberty save in accordance with law”. Making a judicial pronouncement along those lines, however, would have been contrary to the Court of Appeal’s previous decision in Nguyen Tuong Van v Public Prosecutor65 (Nguyen), as well as an older Privy Council decision in the Singapore case of Ong Ah Chuan v Public Prosecutor,66 which had both affi rmed the constitutionality of the mandatory death penalty. The Court of Appeal declined this invitation to declare the mandatory death penalty unconstitutional, on the ground that there had been “no change in the legal matrix” since Nguyen that would justify a different interpretation of “law” in art.9 of the Singapore Constitution.67 While the decision here was not to depart from the

62 Lau Kwan Ho, “The 1994 Practice Statement and Twenty Years On” (2014) 1 Singapore Journal of Legal Studies 408, 410. 63 The application of this factor is not unique to the Singapore courts. The US Supreme Court has also affi rmed the relevance of this factor — see Kozel, Settled versus Right: A Theory of Precedent (n.1), p.114; Planned Parenthood v Casey (n.27), 855. The Supreme Court of Canada has also considered that a change in legal matrix is relevant in stare decisis analysis. See Canada (Attorney General) v Bedford [2013] 3 SCR 1101, [42]–[45]; R v Bernard [1988] 2 SCR 833, 855; Adams “Escaping the Straitjacket: Canada (Attorney General) v. Bedford and the Doctrine of Stare Decisis” (n.4), 341; Debra Parkes, “Precedent Revisited: Carter v. Carter (AG) and the Contemporary Practice of Precedent” (2016) 10(1) McGill Journal of Law and Health S123, S139; and Finkelstein and Podolny “Canada v. Craig — The Common Law as the Servant of Society” (n.19), 470. 64 See notes referred to in note 16. 65 [2005] 1 SLR(R) 103 (CA). 66 [1979–1980] SLR(R) 710 (PC). 67 Yong Vui Kong v Public Prosecutor (n.16), 528. For an insightful comment on this decision, see Yvonne McDermott, “Yong Vui Kong v Public Prosecutor and the Mandatory Death Sentence for Drug Offences in Singapore: A Dead End for Constitutional Challenge?” (2010) 1 International Journal on Human Rights and Drug Policy 35–52.

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prior constitutional precedents, it is implicit in the Court of Appeal’s reasoning that if there had indeed been a change in the legal matrix, the court might have come to. a different conclusion on the matter. In Ramalingam Ravinthran v Attorney-General68 (Ramalingam), the Court of Appeal considered the constitutional limits of prosecutorial discretion. In so doing, the Court of Appeal disapproved of a previous judicial decision, Thiruselvam s/o Nagaratnam v Public Prosecutor69 (Thiruselvam), as an authority for the requirements of art.12, the equal protection provision of the Singapore Constitution, as applied to prosecutorial discretion. In Thiruselvam, the Court of Appeal had taken the view that the prosecutorial discretion was so wide that should the prosecution prefer a capital charge against one accused person and a non-capital charge against another, there would be no violation of art.12 even if the second accused person had in fact played a larger role in the criminal enterprise. The Court of Appeal in Ramalingam cast serious doubt on this proposition, holding that it would be:

contrary to any notion of justice that (all other things being equal) a less culpable offender should be charged with a more serious offence (and subjected to a more serious punishment) than a more culpable offender when both are involved in the same criminal enterprise, especially when one offence is a non-capital offence and the other is a capital offence.70

Notably, the Court of Appeal in Ramalingam found the Thiruselvam approach to prosecutorial discretion unacceptable because it suggested that prosecutorial discretion was effectively untrammelled, and this was not consistent with a subsequent Court of Appeal decision on the prosecutorial discretion: Law Society of Singapore v Tan Guat Neo Phyllis71 (Phyllis Tan). In Phyllis Tan, the Court of Appeal emphasised that the prosecutorial discretion is not unfettered and is subject to constitutional limits.72 Accordingly, one of the considerations justifying a departure from the Thiruselvam approach to prosecutorial discretion was a change in the legal matrix of Singapore law since Thiruselvam, namely, the decision in Phyllis Tan. It is submitted, however, that reliance on a “change in the legal matrix” as a relevant factor in stare decisis analysis is problematic. The key problem with this factor is its ambiguity and lack of normative content. Indeed, the substantive effect of this factor is simply to provide that overruling a constitutional precedent involves

68 [2012] 2 SLR 49 (CA). 69 [2001] 1 SLR(R) 362 (CA). 70 Ramalingam Ravinthran v Attorney-General (n.68), 68. 71 [2008] 2 SLR(R) 239 (CA). 72 Ibid., 313.

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two steps.73 It does not provide signifi cant normative guidance beyond this, and taken by itself, cannot facilitate principled decision-making. We will return to this. issue later, but an illustration will be apposite at this point. If the court had relied on the change of legal matrix as evidenced by Phyllis Tan as the sole justifi cation to depart from the Thiruselvam approach, it would not necessarily have followed that the Thiruselvam approach should be departed from. Indeed, it could very well have been that Phyllis Tan which was the problematic decision. This illustration supports the view that there is a pressing need for a principled framework of stare decisis analysis in Singapore constitutional law.74

(ii) Flawed legal reasoning The second principle that can be elucidated from Singapore case law is that a precedent which is the product of fl awed legal reasoning is susceptible to being overruled or substantially narrowed. 75 A precedent which is “fl awed”, in this context, encompasses precedents which are inconsistent with prevailing precedents at the time of the decision, and/or with the Constitution and fundamental constitutional principles.76 A relatively recent case well illustrates this principle. In Prabagaran a/l Srivijayan v Public Prosecutor77 (Prabagaran), it was argued that art.162 of the Singapore Constitution, which grants the courts the power to construe laws in force at the time the Constitution was promulgated so as to be in in conformity with the Constitution, also grants the courts the same power with respect to laws

73 A strategic way of going about these two steps would be to fi rst include certain criticisms in obiter with respect to a precedent and proceed to cite these comments as a change in legal matrix in the second step to overruling the precedent. 74 For criticisms of this factor as applied in Canada, see Parkes “Precedent Revisited: Carter v. Carter (AG) and the Contemporary Practice of Precedent” (n.63), S148; and Dwight Newman, “Judicial Method and Three Gaps in the Supreme Court of Canada’s Assisted Suicide Judgment in Carter” (2015) 78(2) Saskatchewan Law Review 218. 75 The US Supreme Court has considered fl awed legal reasoning to be an important reason for overruling a precedent. See Citizens United v Federal Election Commission 558 US 310 (2010), 362; Burnet v Coronado Oil & Gas Company 285 US.393 (1932), 407–408; Payne v Tennessee 501 US 808 (1991), 834; and Kozel, Settled versus Right: A Theory of Precedent (n.1), p.24. The Supreme Court of Canada also views this as an important factor. See Craig v Canada [2012] 2 SCR 489, [27]; and Janelle Souter, “Clearly the Arc Bends: Stare Decisis and Saskatchewan Federation of Labour v. Saskatchewan” (2015) 78(2) Saskatchewan Law Review 397, 404. Flawed legal reasoning is an established general principle of stare decisis in Australian law. See McGinty v Western Australia (1996) 186 CLR 140, 235; Queensland v Commonwealth (1977) 139 CLR 585, 599; Damjanovic & Sons Pty Ltd v Commonwealth (1968) 117 CLR 390, 396; Australian Agricultural Co v Federated Engine-Drivers and Firemen’s Association of Australia (1913) 17 CLR 261, 278; Rolston F Nelson, “New Final Appellate Courts in the Commonwealth and the Doctrine of Precedent” (2006) 32(4) Commonwealth Law Bulletin 635, 642; and Boeddu and Haigh “Terms of Convenience: Examining Constitutional Overrulings by the High Court” (n.5), 170. 76 It should be noted that there is some debate in US jurisprudence as to whether an error of law should be enough in and of itself as a reason to overrule a precedent. See Harris v Quinn 134 S Ct 2618 (2014), 2652; Alleyne v United States 133 S Ct 2151 (2013), 2164; Kimble v Marvel Entertainment, LLC 135 S Ct 2401 (2015), 2409; Kozel, Settled versus Right: A Theory of Precedent (n.1), pp.24–25, 33. 77 [2017] 1 SLR 173 (CA).

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passed since the proclamation of the Constitution. This argument had prevailed in a previous case, Tan Eng Hong v Attorney General78 (Tan Eng Hong). . The Court of Appeal in Prabagaran cast serious doubt on this proposition of law adopted by the Court of Appeal in Tan Eng Hong. First, the court pointed out that Tan Eng Hong was “fundamentally incongruent”79 with an earlier Court of Appeal decision, Attorney General v Wain Barry J,80 which had declined to apply art.162 to a post-Constitution case. Second, it held that such a construction of art.162 would not be consonant with its historical context, given that art.162 was intended to ensure the continuity of the legal regime after the coming into force of the Singapore Constitution. As such, the more correct interpretation of art.162, which was in Part XIV of the Constitution titled “Transitional Provisions”, was that it applied to laws predating the Constitution and also laws which had been passed prior to the commencement of the Constitution but had not yet been brought into force, but not to all laws in general.81 The appropriate recourse to “cure” laws enacted post-Constitution rested instead in art.4, which gave the courts the power to sever any unconstitutional provisions of such laws.82 The Court of Appeal’s reasoning in this decision indicates that fl awed legal reasoning was the principal reason for its disapproval of Tan Eng Hong. In coming to its decision on the incorrectness of the legal proposition in Tan Eng Hong vis-à-vis art.162, the considerations that the Court of Appeal in Prabagaran took into account included its incompatibility with the prevailing precedents and its inconsistency with the Constitution’s purpose and context. Aside from inconsistency with other constitutional precedents and the Constitution itself, the Singapore courts have taken into account a precedent’s consistency with fundamental constitutional principles which may not be explicit in the Constitution itself.83 A constitutional precedent found to be inconsistent

78 [2012] 4 SLR 476 (CA). 79 Prabagaran a/l Srivijayan v Public Prosecutor (n.77), 194. 80 [1991] 1 SLR(R) 85 (HC). 81 Prabagaran a/l Srivijayan v Public Prosecutor (n.77), 195. Article 162 of the Singapore Constitution reads as follows: Subject to this Article, all existing laws shall continue in force on and after the commencement of this Constitution and all laws which have not been brought into force by the date of the commencement of this Constitution may, subject as aforesaid, be brought into force on or after its commencement, but all such laws shall, subject to this Article, be construed as from the commencement of this Constitution with such modifi cations, adaptations, qualifi cations and exceptions as may be necessary to bring them into conformity with this Constitution. 82 Ibid., 191–192. Article 4 of the Singapore Constitution reads as follows: This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void. 83 Correctness, in the sense of being consistent with constitutional fundamentals, is also a key consideration in stare decisis analysis for the Supreme Court of Canada. Indeed, the Canadian courts have taken this factor so seriously that they have even held that any new legal issue can allow court to revisit precedent. See Canada (Attorney General) v Bedford [2013] 3 SCR 1101, [47]; Ontario (Attorney General) v

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with fundamental constitutional principles will be susceptible to overruling. In Chng Suan Tze v Minister for Home Affairs84 (Chng Suan Tze), the Court of Appeal. had the opportunity to consider the standard of review that should be applied in judicial review of detention orders issued under the Internal Security Act (ISA), an Act which allows for persons to be detained without trial in the interest of national security. Until then the applicable approach in Singapore towards judicial review of ISA detention orders remained the approach taken by the Singapore High Court in Lee Mau Seng v Minister for Home Affairs85 (Lee Mau Seng): all that needed to be shown for a detention order to be legal was the subjective satisfaction of the Minister that national security concerns required the detention. In Chng Suan Tze, the Court of Appeal held that the subjective approach towards judicial review of ISA detentions was no longer good law. Instead, the courts should review objectively whether the Minister’s decision was indeed based on national security grounds.86 Most famously, one of the key reasons that led the Court of Appeal to this conclusion was that “the notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power”.87 Put in terms relevant to present purposes, the subjective approach in Lee Mau Seng was inconsistent with a fundamental constitutional principle: the rule of law. The corollary of this principle is that consistency with fundamental constitutional principles can provide a justifi cation for not modifying an existing legal framework. Indeed, in Lim Meng Suang v Attorney General88 (Lim Meng Suang), the Court of Appeal declined to modify the reasonable classifi cation test, the relevant test for infringement of the equality provision (art.12) of the Singapore Constitution, as had been suggested by the High Court at fi rst instance. The High Court had suggested that beyond looking at whether the legislatively prescribed classifi cation was intelligible, and whether there was a rational nexus between the classifi cation and the purpose of the Act, the courts should also be able to review the legitimacy of the legislative purpose under art.12.89 Should the legislative purpose be illegitimate, for example, if it was arbitrary and manifestly unreasonable, the

Fraser [2011] 2 SCR 3, [134]–[139]; Bedford v Canada (Attorney General) 2010 ONSC 4264, [75]; R v Henry (Henry) [2005] 3 SCR 609, [44]; Adams “Escaping the Straitjacket: Canada (Attorney General) v. Bedford and the Doctrine of Stare Decisis” (n.4), 331–332; Parkes “Precedent Revisited: Carter v. Carter (AG) and the Contemporary Practice of Precedent” (n.63), S130–S131; Finkelstein and Podolny “Canada v. Craig — The Common Law as the Servant of Society” (n.19), 470. The Australian courts have expressed similar sentiments as well — see Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 554; Queensland v Commonwealth (n.75); Nelson “New Final Appellate Courts in the Commonwealth and the Doctrine of Precedent” (n.75), 644; Boeddu and Haigh “Terms of Convenience: Examining Constitutional Overrulings by the High Court” (n.5), 170–171. 84 [1988] 2 SLR(R) 525 (CA). 85 [1971–1973] SLR(R) 135 (HC). 86 Chng Suan Tze v Minister for Home Affairs (n.84), 525, 545. 87 Ibid., 553–554. 88 See works referred in note 17. 89 Lim Meng Suang v Attorney General [2013] 3 SLR 118 (HC).

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statute would contravene art.12, notwithstanding the intelligibility of the differentia and the existence of a rational nexus.90 . On appeal, the Court of Appeal in Lim Meng Suang declined to modify the legal approach to art.12. In its view, the proposed modifi cation to the reasonable classifi cation test would “confer on the court a licence to usurp the legislative function”.91 Allowing the courts to declare a statute unconstitutional on the basis of illegitimacy of object, with the courts wielding the power to defi ne the contours of “legitimacy”, would be an arrogation of power to the judiciary going beyond their “proper sphere of jurisdiction”.92 Cast in terms relevant to present purposes, the proposed modifi cation to the doctrinal framework of art.12 failed because it would contravene the fundamental constitutional principle of separation of powers.93

(iii) Factualaccuracy The third principle that we can discover in Singapore case law is that in the area of constitutional stare decisis, the factual accuracy of the precedent is relevant to a limited extent. The starting point is that factual arguments on the effi cacy and effectiveness of the prior precedent will not be relevant in the Singapore courts’ stare decisis analysis. In Yong Vui Kong, a case already discussed above, another argument that the appellants raised to persuade the Court of Appeal to overrule the prior precedents was that the mandatory death penalty had a poor deterrent effect and was thus ineffective in achieving its purpose.94 The Court of Appeal rejected this argument, holding that it was “not within the purview of this court to determine the effi cacy” of the mandatory death penalty.95 Put another way, the effi cacy of the mandatory death penalty as a matter of fact was considered to be irrelevant to the consideration of whether the prior precedents upholding its constitutionality should be reconsidered.96

90 Ibid., 165–169. 91 Lim Meng Suang v Attorney General (n.17). 92 Ibid., 56–57. 93 For an insightful analysis of this decision, see Jaclyn L Neo, “Equal Protection and the Reasonable Classifi cation Test in Singapore: After Lim Meng Suang v Attorney-General” (March 2016) Singapore Journal of Legal Studies 95. Notably, this article points out that the Court of Appeal’s reasoning leaves some room for an evaluation of legitimacy of legislative purpose, despite the court’s disapproval of such an inquiry as an explicit component of the reasonable classifi cation test. See also, by way of contrast, the approach of the Hong Kong Court of Final Appeal to right to equality as articulated in Secretary of Justice v Yau Yuk Lung [2007] 3 HKLRD 903 (CFA), which permits an inquiry into the aims of differentiation. The Hong Kong Court of Final Appeal in this case decided that it was unconstitutional to criminalise buggery between homosexual men when buggery between heterosexuals was not equally criminalised. For an elaboration of the approach of the Hong Kong courts to the right to equal protection of the law, see Anton Cooray, Constitutional Law in Hong Kong (Kluwer Law International, 3rd ed., 2019) pp.582–593], and Anton Cooray, Constitutional Law and Human Rights — Halsbury’s Laws of Hong Kong (LexisNexis Butterworths 2nd ed., 2019) para.105.454. 94 Yong Vui Kong v Public Prosecutor (n.16), 539. 95 Ibid. 96 There was a similar inclination against the relevance of factual arguments in the Singapore Court of Appeal decision in Lim Meng Suang v Attorney-General (n.17), 83–90, discussed above under “(ii) Flawed Legal Reasoning”.

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However, factual accuracy appeared to be relevant in the Court of Appeal decision in Tan Chor Jin v Public Prosecutor97 (Tan Chor Jin). There, the Court. of Appeal considered when the right to legal counsel, enshrined in art.9(3) of the Singapore Constitution, can be said to have been waived by an accused person, and when a denial of counsel amounts to a violation of this constitutional right. An earlier High Court decision had suggested that it was entirely within the discretion of the trial judge not to adjourn a trial in order to allow an accused to seek legal representation, and that the courts should be slow to intervene with the trial judge’s decision unless there was a miscarriage of justice.98 The Court of Appeal in Tan Chor Jin considered that this position was a product of a pragmatic emphasis on administrative effi ciency in the scheduling of court hearings, an emphasis which may be less compelling today.99 Accordingly, the Court of Appeal held that a different approach should apply: the proper approach should be a broad-based, holistic one, focused on whether the accused had suffered undue unfairness or prejudice as a result of denial of access to legal representation.100 The Court of Appeal in Tan Chor Jin appears to have been persuaded by pragmatic considerations applying in today’s context: in other words, factual arguments seem to have been considered relevant. A distinction can be drawn here to reconcile the seemingly inconsistent propositions in Yong Vui Kong and Tan Chor Jin. From Yong Vui Kong, it is clear that factual arguments as to the effect of the precedent, being factual arguments wholly untethered to the relevant legal analysis, will be considered irrelevant in stare decisis analysis in constitutional law. However, factual arguments which formed the justifi cations for a constitutional precedent can be validly revisited, as illustrated in Tan Chor Jin. This distinction will be revisited later in this article. As a matter of comparative interest, it is worth noting that the Singapore courts’ acceptance of the relevance of factual arguments as to the justifi cations for a precedent has been echoed by the highest courts in the United States and Canada.101

97 [2008] 4 SLR(R) 306 (CA). 98 Balasundaram s/o Suppiah v Public Prosecutor [1996] 1 SLR(R) 853. 99 Tan Chor Jin v Public Prosecutor (n.97), 338. 100 Ibid., 341. The Court of Appeal stated “with certitude” that the right to counsel is not a right that cannot be waived. However, the court decided that it was not necessary to propound a specifi c test to determine how and when the right to counsel may be validly waived by an accused person, preferring a more broad-based, fact-centric approach which would factor in the competing interests of concerned parties and also maintain a focus on whether any undue unfairness or prejudice has been caused to the accused by his lack of legal representation. See ibid., 336, 341. 101 For the United States, see FCC v Fox Television Stations, Inc 556 US 502 (2009), 533; Kozel, Settled versus Right: A Theory of Precedent (n.1), pp.113, 139. For Canada, see Carter v Canada (Attorney General) 2015 SCC 5, 384 DLR (4th) 14, [47], Canada (Attorney General) v Bedford [2013] 3 SCR 1101, [42]; Leeson v University of Regina 2007 SKQB 252, [9]; Adams “Escaping the Straitjacket: Canada (Attorney General) v. Bedford and the Doctrine of Stare Decisis” (n.4), 331, 338, 340; Parkes “Precedent Revisited: Carter v. Carter (AG) and the Contemporary Practice of Precedent” (n.63), S139.

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(iv) Foreign authorities generally irrelevant . Singapore courts have generally treated foreign authorities as irrelevant in stare decisis analysis. Indeed, it has been noted by Singapore constitutional law scholars that foreign precedents are considered in Singapore only to the extent that they stem from jurisdictions with substantially similar textual provisions in their Constitutions.102 For example, in both Nguyen and Yong Vui Kong, the Singapore Court of Appeal considered that Privy Council decisions presented before it to support a departure from its long-standing approval of the mandatory death penalty were inapplicable; those decisions dealt with different constitutional texts and were set in different social contexts.103 This suggests that foreign authorities might be relevant where they share a similar constitutional and social context with Singapore.

IV. Proposinga Stare Decisis Framework in Singapore Constitutional Law

In this section, we will provide an example of how a relatively young constitutional jurisdiction such as Singapore can fruitfully draw upon the experience of more mature constitutional jurisdictions to develop a robust doctrine of constitutional stare decisis. The insights of the preceding sections will be synthesised with a view to proposing a framework that can guide principled stare decisis analysis in Singapore constitutional law. Indeed, the experience of more mature constitutional jurisdictions yields important insights that help to set the context for the articulation of a legal approach. One such helpful insight is that any legal approach to constitutional stare decisis must fi t with the broader legal and political context of the particular jurisdiction, given the close links between constitutional stare decisis and constitutional interpretation, as well as the judiciary’s vision of their role in the prevailing constitutional order. Accordingly, in the interest of ensuring that the proposed framework fi ts well with the Singapore context, three relevant points relating to Singapore’s constitutional and political context must be noted:

(i) First, Singapore’s Parliament has been and continues to be dominated by a single political party. As such, although constitutional amendments in Singapore may be passed only with a two-thirds majority,104 this is a threshold that is easily met, unlike in many common law jurisdictions.

102 JackLee Tsen-Ta, “Foreign Precedents in Constitutional Adjudication by the Supreme Court of Singapore, 1963–2013” (2015) 24 Washington International Law Journal 253; Thio Li-Ann, “Beyond the Four Walls in an Age of Transnational Judicial Conversations Civil Liberties, Rights Theories, and Constitutional Adjudication in Malaysia and Singapore” (2006) 19 Columbia Journal of Asian Law 428, 456. 103 Nguyen Tuong Van v Public Prosecutor (n.65), 125–127 (CA); Yong Vui Kong v Public Prosecutor (n.16), 514–515, 523–524. 104 Article 5(2), Constitution of the Republic of Singapore.

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(ii) Second, there is a general consistency in the constitutional interpretive methodology that the Singapore judiciary has adopted. Judges have. displayed a preference for what has been described as more legalistic methods of interpretation.105 The prevailing interpretive approaches in Singapore are textualism, 106 originalism,107 and a deference to the drafters of the Constitution,108 commonly entailing a search for Parliament’s intent where constitutional amendments are concerned. Indeed, non-textual approaches to constitutional interpretation are frowned upon as “neither lawful nor legitimate”,109 amounting to a repudiation of constitutional supremacy and undermining the legitimacy of the courts. The Singapore courts’ preferred methods of interpretation indicate an inclination towards self-restraint: indeed, they have been rather reluctant to engage with political and moral issues in the course of adjudication, and have stated that Parliament is the more appropriate forum for the resolution of such matters.110 (iii) Third, judges in Singapore have shown what has been called a “constitutional pragmatism or realism” in their approaches to constitutional interpretation.111

Since this framework should broadly fi t the practice of the Singapore courts, one can summarily dismiss the principle-based approaches as poor fi ts in the Singapore context. Indeed, the de facto approach that the Singapore courts have adopted more closely resembles the factor-based category of approaches, and it is clear that the Singapore courts have not accepted the normative commitments that the

105 Yvonne Tew, “Originalism at Home and Abroad” (2014) 52 Columbia Journal of Transnational Law 780, 820–821; Yvonne Tew, “Comparative Originalism in Constitutional Interpretation in Asia” (2017) 29 Singapore Academy of Law Journal 719, 730. 106 See, eg, Rajeevan Edakalavan v Public Prosecutor [1998] 1 SLR(R) 10 (HC), Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1992] 1 SLR(R) 791 (CA), Sun Hongyu v Public Prosecutor [2005] 2 SLR(R) 750 (HC). See also VK Rajah SC, “Interpreting the Singapore Constitution” in Jaclyn L Neo (ed), Constitutional Interpretation in Singapore: Theory and Practice (New York: Routledge, 2017) p.24. 107 See, eg,Yong Vui Kong v Public Prosecutor [2015] 2 SLR 1129 (CA). 108 See, eg, Constitutional Reference No. 1 of 1995 [1995] 1 SLR(R) 803, Tan Cheng Bock v Attorney General [2017] 2 SLR 850. See also Goh Yihan, “The Interpretation of the Singapore Constitution: Towards a Unifi ed Approach to Interpreting Legal Documents” in Jaclyn L Neo (ed), Constitutional Interpretation in Singapore: Theory and Practice (New York: Routledge, 2017), 273. 109 VK Rajah SC “Interpreting the Singapore Constitution” (n.106), p.27. 110 See, eg, Lim Meng Suang v Attorney-General (n.17), 32–24, 60–61, where the Singapore Court of Appeal declined to consider “extra-legal” arguments and considered that it is for Parliament, and not courts, to consider whether it is necessary to add to constitutionally impermissible categories of discrimination. 111 SeeThio Li-Ann, A Treatise on Singapore Constitutional Law (Singapore: Academy Publishing, 2012); Tew “Originalism at Home and Abroad” (n.105), 828; Tew “Comparative Originalism in Constitutional Interpretation in Asia” (n.105), 733.

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principle-based approaches are based on.112 Further, the approach of the Singapore courts towards determining whether a judicial overruling ought to be given only. prospective effect suggests that the Singapore courts will be inclined towards a factor-based approach in the constitutional stare decisis context. Judicial decisions as a rule have retrospective effect, and it is in exceptional situations that the courts will hold that a decision has only prospective effect.113 In relation to this issue, the Singapore courts have adopted a more fl exible factor-based approach, taking into account factors such as the extent to which the law or legal principle concerned is entrenched, the extent of the change to the law, the extent to which the change to the law is foreseeable, and the extent of reliance on the law or legal principle concerned.114 Proceeding on the basis that a factor-based approach will be more suitable for Singapore, the next question is what factors should be relevant in stare decisis analysis. Drawing upon the discussion in the preceding parts of this article, the following sections will propose a list of relevant factors and discuss the proper weight to be accorded to each factor.

A. Proceduralworkability The procedural unworkability of a precedent is a factor that a court may legitimately take into account in considering whether to depart from it. Indeed, there must arise a strong presumption in favour of overruling a precedent if it is so vague or convoluted that it is unintelligible or practically unworkable. While the Singapore courts have not so far taken this factor into consideration, it is likely to be a consideration that they would take into account should an appropriate case come before them in the future. Indeed, the Court of Appeal has recognised the need for law to be clear and unequivocal in the context of the constitutionally protected right to equal protection of the law. For instance, it was held in Lim Meng Suang that a law may treat people differently only if such different treatment is based on clear and intelligible criteria: arbitrary and manifestly unreasonable classifi cations would be unconstitutional.115 It should be emphasised that procedural workability should be viewed as a preliminary threshold factor: it does not warrant intense scrutiny of the precedent

112 Originalist reasoning has been applied by Singaporean judges, but no judge or commentator has suggested that Singapore should adopt the originalist approach to judicial precedent. 113 For deeper analysis of the doctrine of prospective overruling in the United States and Hong Kong contexts, see respectively Walter V Schaefer, “The Control of “Sunbursts”: Techniques of Overruling” (1967) 42 New York University Law Review 631 and Anton Cooray, Constitutional Law in Hong Kong (n.93), p.581. 114 Public Prosecutor v Hue An Li [2014] 4 SLR 661 at [124]–[125]. Before the decision in Public Prosecutor v Hue An Li, the Singapore Court of Appeal had applied the doctrine of prospective overruling in Public Prosecutor v Manogaran s/o R Ramu [1996] 3 SLR(R) 390 and Abdul Raman bin Yusof v Public Prosecutor [1996] 2 SLR(R) 538. 115 Article 12, Constitution of the Republic of Singapore; Lim Meng Suang v Attorney-General (n.17), 48–52.

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for correctness. Akin to the reasoning applied by the Singapore Court of Appeal in Lim Meng Suang in relation to legislative classifi cations, this factor should. aim to weed out only precedents which are clearly vague, arbitrary, or manifestly unreasonable. This serves to take onboard McGinnis’s and Rappaport’s evaluation of this factor, namely that if procedural workability performs the role of a threshold factor, then it is the precedent’s unworkability which becomes relevant in the stare decisis analysis, with the precedent’s workability not providing a positive reason in itself for retaining the precedent.

B. Factualaccuracy Factual accuracy should also be a relevant factor in the Singapore courts’ stare decisis analysis in constitutional law. In considering the legitimate scope of this consideration in stare decisis analysis, however, we must distinguish between three different types of fact. (i) The fi rst type of facts are facts that form part of the framework of legal doctrine. For instance, the doctrinal approach towards the equal protection provision of the Singapore Constitution has been described as the reasonable classifi cation test.116 One of the steps in this approach requires the court to consider if there is a rational nexus between the purpose of the legislation and the differentia in question.117 Accordingly, establishing the purpose of the legislation, as a factual matter, becomes crucial in art.12 analysis. (ii) The second type of facts are facts that are tangentially related to legal doctrine, insofar as the relevant legal doctrine is premised on a certain factual state of affairs. For example, scientifi c advancements which would render obsolete a precedent premised on a particular technological state of affairs would fall under this category of facts. (iii) The third type of facts are facts which are related to the consequences or effects of the precedent but wholly unrelated to legal doctrine, such as the precedent’s factual effi cacy or ability to achieve benefi cial social outcomes.118 It is suggested that any prior inaccuracies in the fi rst type of facts should be highly relevant in a decision to overrule a precedent. Such facts go directly to legal analysis, and are not susceptible to the criticisms that the Singapore courts have levelled against other types of factual arguments in stare decisis analysis.119 Inaccuracies or advancements in the second type of facts should, in principle, be relevant in view of the Singapore courts’ pragmatic approach to constitutional interpretation. It should be noted, however, that while in principle such facts are relevant, there may be little room for the operation of such facts in practice: the Singapore courts have generally been wary of basing judicial decisions on factual premises the way that the US Supreme Court did in Roe, in view of its concerns of institutional competence and its deference in such matters to the legislature and

116 Lim Meng Suang v Attorney-General ibid., 46–47. 117 Ibid., 48. 118 The effects of a precedent as a matter of its morality or justice will be dealt with as a separate factor. 119 Lim Meng Suang v Attorney General (n.17), 83.

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the executive.120 Facts of the third type, however, should not be relevant in stare decisis analysis. Their relevance has been seriously questioned by both academic. commentators and the Singapore courts themselves as being wholly untethered from legal doctrine. As illustrated above, drawing distinctions between these types of facts accords well with the distinction that the Singapore courts have drawn in practice between factual arguments going towards the effects of a precedent and factual arguments forming the premises of a prior decision. The Singapore courts have frowned upon the use of the former type of factual arguments in stare decisis analysis but have applied the latter type of factual arguments in deciding to depart from prior precedent.121 While it has already been noted that there may be little room for the operation of the second type of facts in stare decisis analysis in Singapore, the courts should nevertheless be careful to avoid stretching the boundaries of this category of facts too far. Indeed, if one interprets this second category of facts broadly, one may conceivably argue that a precedent ought to be overruled on the basis of changing social and moral judgments that have undercut the factual premises of the precedent. However, there are two problems with determining the validity of a precedent on the basis of such arguments. First, it might be beyond the institutional competence of the courts to determine whether moral and social judgments have changed. Second, to determine the validity of a precedent on the ground of it being unsuited to changed social circumstances would amount to determining the validity of a precedent on the grounds of justice and morality rather than its legality — grounds which this article will subsequently argue to be generally irrelevant in stare decisis analysis. As such, the application of this factor will have to be conducted with considerable prudence and restraint to avoid this factor becoming a backdoor for the introduction of considerations that should play no role in stare decisis analysis.

C. Reliance and disruption The disruption that the overruling of a widely relied-upon judicial precedent can cause should be a relevant factor in constitutional stare decisis analysis in Singapore.122 While this factor has not yet been articulated in such terms by the Singapore courts, it is suggested that this is a factor that the Singapore courts would be prepared to accept. The Singapore judiciary has illustrated an abiding concern for certainty as a core principle of the rule of law. As noted earlier, the Singapore

120 See, eg, Review Publishing v Lee Hsien Loong [2010] 1 SLR 52 and Tan Seet Eng v Attorney General (n.17). 121 As noted in Section III of this article. 122 As noted earlier in this paper, the US Supreme Court has affi rmed the relevance of this factor in stare decisis analysis. See Planned Parenthood v Casey (n.27). The Australian courts have also affi rmed its relevance. See H C Sleigh Ltd v South Australia (1977) 136 CLR 475; Boeddu and Haigh “Terms of Convenience: Examining Constitutional Overrulings by the High Court” (n.5), 176.

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Court of Appeal’s 1994 Practice Statement makes explicit reference to the crucial importance of certainty in law. . However, an important caveat should be added to the proper weight to be accorded to this factor. While cognisant of the relevance of this factor, the Singapore courts should be cautious of applying such a factor as a crucial linchpin in their stare decisis analysis. This is because judges may not be best placed to assess the benefi ts of an existing rule or the costs of departing from it. Accordingly, prudence may often require that this factor be considered, but not given decisive or signifi cant weight in stare decisis analysis.

D. Incorrectness of the precedent as a matter of law The incorrectness of a precedent as a matter of law should be the primary factor in determining whether a precedent ought to be overruled or retained. Indeed, as discussed earlier, this factor has thus far been applied consistently by Singapore courts. One might note the criticisms of the applicability of such a factor in stare decisis analysis, discussed earlier in this article. Brie fl y stated, there is grave danger in allowing courts to overrule precedent on account of egregious error for the reason that different judges may have very different ideas of precisely what “error” entails, in view of the prevalence of disagreements over constitutional interpretive methodology. As has been noted earlier, however, the Singapore courts have been generally consistent in their constitutional interpretive methodology. Accordingly, within the Singapore context, there is less reason to fear the possibility of rampant overruling of precedents based primarily on conclusions of egregious error through radically different interpretive methodologies. Therefore, incorrectness as a matter of law should be a primary consideration in stare decisis in Singapore constitutional law, with “correctness” encompassing coherence with other precedents, defensibility of legal reasoning as a matter of logic and constitutional interpretation, and consistency with fundamental constitutional principles. In view of the primacy of this factor and the reduced force of the criticisms against this factor in the Singapore context, it is submitted that the moderate presumption is the preferred option for Singapore. In other words, egregious error of law can be the necessary and suffi cient criterion for overruling a constitutional precedent. To argue that a judicial decision has been wrongly decided is another way of arguing that there has been a change in the legal matrix since it was handed down. How may this be reconciled with the criticism of a change in legal matrix as a relevant factor in stare decisis analysis? This apparent tension can be resolved when one observes that the issue with relying on a change in legal matrix is its ambiguity and lack of normative content. Such a factor, applied broadly, could allow any decision made since the time of the relevant precedent to offer a justifi cation for overruling it, no matter what the nature of the link between them is, allowing adventurous judges, who are minded to leave their imprint on constitutional jurisprudence, to capitalise on tenuous or tangential links. To illustrate its lack of normative content:

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How can a judge feel confi dent that the later decision which is relied on to show that there has been, since the time of the precedent in question, a relevant change in. the legal matrix is not in itself incorrect and warrants disapproval? A change in legal matrix in itself as a consideration in stare decisis analysis would thus provide little principled guidance to courts and would potentially compromise the certainty and consistency of constitutional law. Incorrectness as a matter of law, in contrast, is a more principled factor. Under the rubric of this factor, statements in dicta criticising the relevant precedent would not be enough in themselves to provide a justifi cation for overruling the precedent. Instead, appropriate justifi cations need to be forthcoming: for example, evidence that the relevant precedent was incoherent with other precedents at the time the precedent was decided. Alternatively, other ways of proving incorrectness as a matter of law could be indefensible legal reasoning as a matter of logic or constitutional interpretation, or inconsistency with fundamental constitutional principles.

E. Incorrectness of the precedent as a matter of morality Incorrectness as a matter of the morality of the precedent should generally not be relevant in Singapore constitutional stare decisis analysis. The 1994 Practice Statement seems to accept incorrectness as a matter of morality as a valid consideration, in view of its suggestion that requirements of justice would provide a valid justifi cation to overrule a precedent. However, this proposition should be viewed in its proper context: it was an assertion of the idea that Singaporean values should take priority over values of foreign jurisdictions. This was the idea justifying the declaration in the same document that the Singapore Court of Appeal is not bound by Privy Council decisions. As such, the reference to “justice” in the 1994 Practice Statement does not support the broader proposition that considerations of justice simpliciter are valid grounds for overruling. There are several reasons militating against the relevance of morality and justice in stare decisis analysis in Singapore constitutional law. First, the Singapore courts have made it clear that the key consideration determining the correctness of a precedent is its correctness as a matter of Singapore law, and that considerations of justice raised in other jurisdictions are of less relevance.123 Second, the Singapore courts have displayed an active aversion to considering arguments on morality and justice unless there is a concrete legal underpinning for such arguments.124 Third, the concern of interpretive pluralism harming the consistency and certainty of legal precedent applies with greatest force against the relevance of morality and justice. Should such a factor be relevant, disagreements over the substantive content of justice and morality would exacerbate the diffi culty of determining whether a precedent is “incorrect”.

123 As noted in Section III of this article. 124 See, eg,Lim Meng Suang v Attorney General (n.17), 83.

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It is submitted that courts should not adopt an overly interventionist approach to rectify what is alleged to be a morally wrong decision. However, taking onboard. Kozel’s argument, while the morality of the precedent should be generally irrelevant, it should be taken into account in truly exceptional circumstances where the demands of justice are clearly established. Gustav Radbruch’s formula, as it has been termed by legal theorists, may provide some useful normative guidance in this regard.125

V. Conclusion

This article has sought to study the theory and doctrine of constitutional stare decisis as developed in mature constitutional jurisdictions, and to apply the insights that can be gleaned from them to Singapore, a relatively young constitutional jurisdiction that has not paid signifi cant attention to this issue. To that end, this article has briefl y surveyed case law and academic commentary from mature constitutional jurisdictions on the proper approach to stare decisis in constitutional law, identifi ed the principles that Singapore judges have applied on a de facto basis in their consideration of constitutional precedents, and synthesised these principles and insights into a framework that can guide and shape a principled stare decisis analysis for Singapore. To summarise, it is suggested that stare decisis analysis in Singapore constitutional law should proceed in accordance with the following framework. The procedural workability of the relevant precedent should be examined as a threshold matter — such that if the rule laid down by the precedent is found to be too vague, convoluted, or arbitrary, a strong presumption in favour of overruling the precedent will arise. Two additional factors, qualifi ed appropriately, should also be considered: (a) factual accuracy of the precedent, confi ned to facts relevant to doctrinal analysis or facts forming the premises of the prior decision; and (b) a prudential consideration of the reliance interests that have been generated by the decision, with due regard to the judiciary’s institutional limitations. The primary factor that should shape the court’s stare decisis analysis is whether the prior precedent is incorrect as a matter of law, encompassing coherence with other precedents, correctness of legal reasoning as a matter of logic or constitutional interpretation, and consistency with fundamental constitutional principles. Incorrectness as a matter of the precedent’s morality should generally not play a role in stare decisis analysis, except in exceptional circumstances.

125 RobertAlexy, The Argument from Injustice: A Reply to Legal Positivism (Oxford, UK: Oxford University Press, 2009) p.40. See also Tan Seow Hon, “Between Judicial Oligarchy and Parliamentary Supremacy: Understanding the Court’s Dilemma in Constitutional Judicial Review” (September 2016) Singapore Journal of Legal Studies 307.

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One should be realistic about the value of such a framework. Indeed, one should not expect that the application of this framework would magically lend. precision to stare decisis analysis, capable of churning out solutions to diffi cult issues with mathematical accuracy. References made in this framework to the need for prudence and restraint should have made this quite clear: the time-honoured judicial wisdom and prudence will continue to be critical. Nevertheless, it is hoped that this framework will lend substance to the Singapore courts’ future analyses of stare decisis issues and facilitate principled constitutional decision-making.

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