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A broader application of the reasonable relation test

A legislation consistent with the Constitution may nevertheless be discriminatory in its application, hence leading to a violation of Article 12(1). The rational relation test has been developed and broadened to serve as a legal test for the constitutionality of such administrative decisions. This is achieved through the consideration of another element - that of the arbitrariness of a law.

Chng Suan Tze v Minister for Home Affairs

In an early case of Chng Suan Tze v Minister for Home Affairs, the appellants contested the validity and legality of sections 8 and 10 of the Internal Security Act (Cap. 143, 1985 Rev. Ed.) ("ISA"), and the powers it conferred upon the Minister. The judgment dealt with the Minister's discretionary powers under the ISA and whether such discretion should be objective or subjective. At the same time, it was argued that the Minister's discretion was not subject to judicial review.

The Court of Appeal of Singapore held that sections 8 and 10 were not arbitrary as they could be applied to specific situations and each "[bore] a reasonable relation to the object of the law." However the court agreed with the argument of the appellants that "if the discretion in sections 8 and 10 of the ISA is subjective" or "if the discretion is not subject to review by a court of law", the decision is rendered arbitrary and contrary to Article 12(1).

The court, in considering the arbitrariness of an administrative decision, seemed to suggest arbitrariness as an additional element of or an alternative approach to the reasonable relation test expounded in Ong Ah Chuan. It found that an arbitrary exercise of power by the Minister bears similarity to a situation where the Parliament failed to provide specific provisions in the statute. As such, an arbitrary exercise of power by the Minister also lacked a reasonable relation to the object of law.

Development of principle and application to local context

The notion of arbitrariness with regards to an equality clause was first primarily elucidated in the Indian case of Maneka Gandhi v Union of India ("Maneka”), Here, in reference to its own equality clause – Article 14 of the Indian Constitution – the court stated that along with the notion of reasonable classification, there must also be a consideration of arbitrariness in an equality clause. It highlighted:

Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits ... Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment.

Such a concept has also been adopted in the Malaysian courts. In Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor ("Tan"), Article 8(1) of the Constitution of Malaysia, which is in pari materia to Article 12(1) of the Singapore Constitution, was discussed. The court in Tan held that the principle espoused in Maneka was valid, and that the failure to adopt such a principle would result in an 'archaic and arcane approach' to the interpretation of Article 8(1).

Such reasoning may have exerted influence in the local context, where local courts have suggested the consideration of arbitrariness as relevant factor in determining if a decision violates Article 12(1). While it was not conclusive, the recent case of Eng Foong Ho ("Eng Foong Ho") seems to have encapsulated this element in its development and formulated of a modified rational relation test for Article 12(1).