The timidity of the Singapore Court of Appeal's approach in Lim Meng Suang to the equal protection clause in Singapore's constitution

Why do I argue that the CA's treatment in Lim Meng Suang v AG [2014] SGCA 53 of Article 12(1) of Singapore's constitution is, with the greatest respect, a timid blot on our jurisprudence?

In short, it is because the CA in effect, said that when Article 12(1) of our Constitution grandly declared that "All persons are equal before the law and entitled to the equal protection of the law." THIS WAS LITTLE MORE THAN MERE ASPIRATION, having no enforceable legal content that a court could apply to protect against discrimination beyond the barest test of logical coherence under the reasonable classification principle, with the result that the only forms of recognised constitutional discrimination are those specifically enumerated under Article 12(2).

With the greatest of respect, I do not think this treatment of Article 12 is sound jurisprudence (and at the least it is extremely timid) and hence I support mounting another challenge.

This is what the CA said :

"To recapitulate, the analysis proffered above ... is that Art 12(1) appears to be more of a declaratory (as well as aspirational) statement of principles, as opposed to a set of specific legal criteria as such. This is, perhaps, not surprising as Art 12(1) is framed at a very general level ... it is perhaps precisely because Art 12(1) is framed at such a general level that it does not furnish the specific legal criteria which can guide the courts in determining, in specific fact situations, whether a particular statute violates Art 12. That having been said, it bears reiterating that any statute must nevertheless pass (threshold) muster under the “reasonable classification” test before it can be found to be consistent with Art 12. More importantly, we emphasise that what we have just said (about the lack of specific legal criteria in Art 12(1)) does not mean that there are no specific legal criteria which can guide the court in specific fact situations. On the contrary, in addition to the “reasonable classification” test, Art 12(2) furnishes specific as well as concrete legal criteria which ensure that any statute which is discriminatory within the scope and meaning of Art 12(2) (and, hence, contravenes the concept of equality embodied in Art 12) will, pursuant to Art 4, be void to the extent of such contravention and inconsistency."

With respect to the nature of the "reasonable classification" test, the CA said this:

"... The “reasonable classification” test is not without its difficulties. This has been articulated in the legal literature (see, for example, Joseph Tussman & Jacobus tenBroek, “The Equal Protection of the Laws” (1949) 37 Cal L Rev 341). Perhaps because of the perceived lack of viable alternative tests and the very thorny nature of the concept of equality itself (especially when it is to be applied in a practical context), the cases (at least in the Singapore context) continue to endorse (only) the “reasonable classification” test as the test for determining the constitutionality of a statute under Art 12. The concept of equality is thorny, not least because whilst it is eminently desirable (in theory) to achieve equality, this (normative) ideal faces the (factual) reality that inequality (in all its various forms) is an inevitable part of daily life. How, then, is the law to ensure that there is a basic level of equality, applying the principle of equality generally, and more importantly, in what situations would such a level of equality be deemed to be legally mandated? As we shall see in a moment, the “reasonable classification” test, whilst useful, does not really address the fundamental questions just posed (see also Peter Westen, “The Empty Idea of Equality” (1982) 95 Harv L Rev 537). This is not surprising because (as we shall also see) the very nature of the “reasonable classification” test renders it incapable of furnishing the requisite (or complete) normative as well as analytical impetus (let alone the requisite criterion or criteria) to answer these questions ...

... the “reasonable classification”test is an important threshold test, without which any attempt to determine whether or not Art 12 has been contravened by an impugned statute cannot even take off the ground in the first place. We shall also see that if a particular statute fails to pass legal muster under this test, it would mean that that statute is so legally illogical and/or incoherent that it would, ipso facto, be repugnant to any idea of legal equality to begin with ...

[As with the first limb the reasonable classification test, the second limb] does not really address the concept of equality as such. Its focus, as explained above, is primarily logical as well as commonsensical ..."

In short, the CA itself readily acknowledged that a reasonable classification test is "incapable" of "really addres[ing] the concept of equality as such" as its "focus is primary logical and commonsensical". It is a bare threshold, no more.

Notwithstanding this, the CA in Lim Meng Suang argued that going beyond the minimalist analysis of the reasonable classification test as the SOLE test to give content to Article 12 would amount to undertaking an extra-legal analysis.

But with the greatest of respect, I cannot agree. The approach taken by numerous apex courts around the world in many countries stand as counter-evidence to this, i.e. it is in my view eminently possible to undertake a LEGAL analysis of an equal protection of the laws clause beyond the barest threshold provided by the reasonable classification test.