Singapore Academy of Law From the SelectedWorks of Jack Tsen-Ta LEE 2019 Singapore [2018] Dr Jaclyn L Neo, Faculty of Law, National University of Singapore Jack Tsen-Ta Lee Makoto C Hong, AGC Academy, Attorney-General's Chambers, Singapore Jiayun Ho, Attorney-General's Chambers, Singapore Available at: https://works.bepress.com/jacklee/66/ I·CONnect-Clough Center 2018 Global Review of Constitutional Law Richard Albert, David Landau, Pietro Faraguna and Simon Drugda Editors © 2019 I•CONnect Electronically published by I•CONnect and the Clough Center for the Study of Constitutional Democracy at Boston College. www.iconnectblog.com | www.bc.edu/cloughcenter ISBN: 978-0-692-15916-3 Table of Contents 4 INTRODUCTION 5 A Renewed Partnership in Support of Constitutional Democracy 6 The Global Review Turns Three 7 COUNTRY REPORTS 9 Argentina 120 Greece 13 Austria 125 Guatemala 18 Bangladesh 131 Hong Kong 23 Belgium 138 Hungary 28 Boznia and Herzegovnia 143 India 33 Brazil 149 Indonesia 37 Bulgaria 154 Iran 42 Cameroon 158 Ireland 47 Cape Verde 163 Israel 52 Chile 167 Italy 58 Colombia 172 Japan 63 Commonwealth Caribbean 177 Kenya 68 Croatia 182 Latvia 74 Cyprus 188 Liechtenstein 79 Czech Republic 193 Malaysia 84 Denmark 199 Mexico 87 Ecuador 204 Moldova 92 Egypt 209 New Zealand 97 Finland 214 Nigeria 102 France 219 Norway 107 Gambia 224 Palestine 112 Georgia 229 Peru 117 Ghana 234 Philippines 2018 Global Review of Constitutional Law | 1 238 Poland 289 Sri Lanka 243 Portugal 294 Sweden 248 Romania 298 Switzerland 253 Russia 303 Taiwan 258 Serbia 309 Thailand 263 Singapore 314 Turkey 269 Slovakia 319 Ukraine 274 South Africa 325 United Kingdom 279 South Korea 331 Vietnam 285 Spain 336 SUMMARY 2 | I•CONnect-Clough Center COUNTRY REPORTS 2018 Global Review of Constitutional Law | 7 Singapore Jaclyn L. Neo, Associate Professor of Law Jack Tsen-Ta Lee, Deputy Research Director Jack Tsen-Ta Lee, Deputy Research Director – Singapore Academy of Law Makoto Hong, Associate Fellow – AGC Academy, Attorney-General’s Chambers Ho Jiayun, Deputy Public Prosecutor – Attorney-General’s Chambers I. INTRODUCTION II. MAJOR CONSTITUTIONAL SINGAPORE DEVELOPMENTS The year 2018 saw courts further grappling with difficult issues concerning There were three major legislative devel- constitutional interpretation. Constitutional opments in 2018 impacting constitutional changes to the elected presidency and the law—amendments to the Films Act, changes subsequent elections held under the terms to the Criminal Law (Temporary Provisions) of those changes continued to reverberate Act (CLTPA), and a proposal to introduce in a case that challenged the government’s legislation regulating ‘fake news’. There refusal to call for a by-election to replace were concerns that these changes would the parliamentarian who became the current broaden executive powers, which could ad- president. Furthermore, there were several versely impact freedom of speech and ex- important initiatives to change the law pression as well as restrict access to justice. with potentially significant implications on constitutional rights as well as the separation The amendments to the Films Act were in- and balance of powers in Singapore. troduced and passed in Parliament in 2018 Nonetheless, one interesting phenomenon following consultation with industry stake- to note is the increasing reliance on public holders and the public. The entire consul- consultation as part of the law-making process. tation process took more than a year. The This is evidenced by the public consultation Films Act provides a regulatory framework on the amendments to the Films Act as for the distribution, exhibition and posses- well as the Select Committee on Deliberate sion of films in Singapore. It is a form of Online Falsehoods. This follows a trend in prior restraint as, under the Act, distributors the past years, particularly with the invitation and exhibitors of films are required to ob- to the public to submit representatives to tain a licence from the Info-communications 1 the Constitutional Commission in 2016. Media Development Authority (IMDA) and Presumably, such public consultations could all films have to be classified by a Board of serve not only as a ‘crowd-sourcing’ of ideas Film Censors. The use of a licencing frame- but also to play a legitimating role in the final work to regulate speech is not uncommon in legislative product. Singapore. Such regulation is often justified as seeking to strike a balance between free- dom of speech and broader public interests such as the maintenance of racial and reli- 1 1HJS`U35LV1HJR;3LL/V1PH`\U 4HRV[V/VUNº:PUNHWVYL!;OL:[H[LVM3PILYHS+LTVJYHJ`»PU9PJOHYK (SILY[:PTVU+Y\NKH7PL[YV-HYHN\UH +H]PK3HUKH\LKZ0Ç*65ULJ[*SV\NO*LU[LY!.SVIHS9L]PL^VM Constitutional Law (I·CONnect 2018). 2018 Global Review of Constitutional Law | 263 gious harmony, national security and pub- physical copy of the content does not fall with- This includes ‘any activity […] carried out lic morality as well as the protection of the in the ambit of the Films Act.’4 by a person in Singapore that amounts to a young and vulnerable.2 serious offence and—[…] is carried out in The second major legislative development is furtherance of the illegal purpose of a group The current regime has been criticized for the enactment of the Criminal Law (Tempo- which the person knows or has reasonable restricting speech, particularly political rary Provisions) (Amendment) Act 2018 (No grounds to believe is an organised crimi- speech. Under the Act, ‘party political films’ 12 of 2018), which ‘clarified’ the scope of nal group’.8 The definition of an ‘organised are absolutely banned. A party political film the government’s powers to detain without criminal group’ in section 2(1) of the Organ- is defined fairly broadly to refer to ‘an ad- trial and the scope of judicial review by the ised Crime Act includes a group that seeks vertisement made by or on behalf of any po- courts. The Criminal Law (Temporary Provi- to obtain a financial or other material ben- litical party in Singapore or any body whose sions) Act5 (CLTPA) empowers the Minister efit from the commission of any act outside objects relate wholly or mainly to politics in for Home Affairs to issue a detention order Singapore that, if it occurred in Singapore, Singapore, or any branch of such party or of up to 12 months if he is satisfied that the would constitute a serious offence as defined body’ or ‘which is made by any person and person ‘has been associated with activities of under the Act. directed towards any political end in Singa- a criminal nature’, and where ‘it is necessary pore’. During a parliamentary debate on the that the person be detained in the interests Secondly, the CLTPA amendments inserted proposed changes to the Films Act, the gov- of public safety, peace and good order’ with- a finality clause to the Act. A new section ernment defended the continuing ban on the RXWDFULPLQDOWULDOKDYLQJEHHQKHOG:KLOH 30(2) reads: ‘Every decision of the Minis- basis that such films ‘seek to sensationalise termed ‘temporary’, the law has been in force ter on a matter in subsection (1) is final’. or distort serious issues to evoke emotional since pre-independence days, as it has been The Law Minister explained that this pro- rather than logical debate based on facts’.3 legislatively renewed every five years with vision seeks to clarify that the Court is not little change. On 6 February 2018, however, to scrutinize the evidential basis for deten- There were important changes and clarifica- Parliament made two important amendments tion under the CLTPA. However, he empha- tions for free speech protection. For instance, to the law. First, the Act now spells out in sized that the finality clause is not intended in the revised section 21 of the Films Act, it a new Fourth Schedule the activities that to oust judicial review of detentions on the remains an offence to distribute and public- are regarded as ‘activities of a criminal na- well-established grounds of illegality, irra- ly exhibit unclassified films, but it is no lon- ture’. This amendment appears to have been tionality and procedural impropriety.9 This ger an offence to merely possess unclassified prompted by the Court of Appeal’s judgment clarification is important as there is an ar- films. Furthermore, the IMDA clarified that the in Tan Seet Eng v Attorney-General,6 which gument that ouster of judicial review would section does not cover private viewings with we discussed in last year’s report.7 In this violate the judicial power-vesting clause in family members and friends, though the ques- case, the Court had struck down detention the Constitution of the Republic of Singa- tion of whether a viewing is private or public orders on the basis that they fell outside the pore (‘the Constitution’).10 The substantive is subject to a certain degree of judgment. An- scope of the CLTPA. Following the amend- provisions of the amendment Act came into other important clarification is that, in response ment, the CLTPA now sets out that ‘[p]ar- force on 1 January 2019. to the criticism that the scope of the Films Act ticipating in, or facilitating, any organised may even cover the sharing of ‘home’ videos, crime activity as defined in section 48(1) The third major development is the con- the IMDA stated that ‘the online distribution of the Organised Crime Act 2015 (Act 26 vening of a Select Committee on Deliberate of content over the Internet where there is no of 2015)’ falls within the scope of the Act. Online Falsehoods, which invited propos- 2 Ministry of Communications and Information/Info-communications Media Development Authority, ‘Closing Note to Public Consultation on Proposed Amendments to the Films Act’ (IMDA, 20 February 2018) <www.imda.gov.sg/regulations-licensing-and-consultations/consultations/consultation-papers/2017/public-consultation-on-pro- WVZLKHTLUKTLU[Z[V[OLÄSTZHJ[%HJJLZZLK-LIY\HY` 3,4 @\LU:PUº)HUVUWHY[`WVSP[PJHSÄSTZZOV\SKZ[H`!*OLL/VUN;H[»;OL:[YHP[Z;PTLZ:PUNHWVYL4HYJO#^^^Z[YHP[Z[PTLZJVTWVSP[PJZIHUVUWHY[`WVSP[PJHS ÄSTZZOV\SKZ[H`JOLLOVUN[H[%HJJLZZLK-LIY\HY` 5 Cap 67, 2000 Rev Ed (CLTPA).