Jaclyn L Neo
Faculty of Law, National University of Singapore
The High Court today struck out Wee Kim San Lawrence Bernard’s application for judicial review on the basis that the plaintiff had no locus standi. Mr. Wee had argued that the government’s failure to clarify the position that homosexual males are protected from discrimination under Article 12 of the Constitution of the Republic of Singapore is a violation of his constitutional rights. One of Mr. Wee’s arguments was that the Singapore government’s obligation to provide protections for homosexuals stems from its accession to both the UN Convention on the Rights of Persons with Disabilities (“UNCRPD”) and the Convention to Eliminate All Forms of Discrimination Against Women (“CEDAW”).
Leaving aside the substantive question of whether the provisions under UNCRPD or CEDAW cover and assist claims for protection against sexual orientation discrimination, the case raises interesting legal question of the status of ratified treaties/conventions under Singapore law. Singapore is a dualist state. This means that ratified treaties/conventions are not part of domestic law until specifically incorporated. This contrasts with monist states, where treaties are self-executing/automatically incorporated; no additional legislative act is required.
Problem of non-domestication
The lack of domestication has been an obstacle to the implementation of human rights treaties in dualist states. This is because even though the state has bound itself legally to comply with the provisions of the human rights treaties, there is no recourse in domestic law as long as no incorporating statute has been passed. Judges cannot apply or enforce treaty provisions directly in domestic courts.
Customary International Law in Singapore
The judiciary’s position on the status of international law in Singapore is not entirely clear. In the 2010 case of Yong Vui Kong v Public Prosecutor and another matter  3 SLR 489, the Singapore Court of Appeal held that domestic law (and this includes the constitution) should, as far as possible, be interpreted consistently with Singapore’s international legal obligations. However, the Court also declined to interpret the constitutional guarantee of the right to life to include an implied prohibition against “inhuman punishment”. According to the Court, there are “inherent limits” to the interpretive exercise. The main obstacle here was that a proposal to include an express constitutional provision to prohibit inhuman punishment had in fact been rejected by the constitutional commission that reviewed Singapore’s constitution in 1966. The Court of Appeal therefore held that it was precluded from reading into Article 9(1) a prohibition against inhuman punishment, as it would effectively ‘legislate’ a new constitutional right and one that had been rejected. The Court would have unduly expanded its remit.
However, one distinguishing factor between Yong Vui Kong and the arguments raised by Mr. Wee is that the court in the former was addressing the applicability of customary international law and not of treaty law. Viewed this way, Yong Vui Kong is distinguishable precedent for the incorporation of treaty law in Singapore.
A strong argument could be made for the Singapore Courts to pursue interpretive incorporation because states freely elect to enter into a treaty/convention. Common law judges in other dualist states have developed interpretive techniques to indirectly implement treaty provisions where appropriate. This entails judges referring to relevant international law when interpreting statutes or constitutional provisions, and treating international law as a relevant and legitimate source of law. Melissa Waters observes in this context that judges in many dualist countries are increasingly implementing and “entrenching their nations’ international treaty obligations into domestic law, thus becoming powerful domestic enforcers of international human rights law.” She calls this trend “creeping monism.”
Interpretive incorporation involves a range of interpretive methods. Waters identifies five of them. The first uses human rights treaties to further affirm a particular interpretation of domestic law. A second entails the courts construing ambiguous statutes in such a way that would not violate the country’s human rights obligations. The third method involves updating the common law consistently with human rights standards. The fourth is applied to constitutional or bill of rights cases; it involves using international human rights treaties as persuasive sources of constitutional interpretation. Human rights treaties provide context for judicial interpretation. The fifth method also concerns the constitutional bill of rights but treats international human rights treaties as a binding normative framework.
Legal Status of Treaty Law: Three Possibilities
What then would be the legal status of treaty provisions that are incorporated through interpretation? As I argue elsewhere, one way of clarifying our views on this is to look at the legal effect of interpretive incorporation. As a start, interpretive incorporation does not always mean that treaty provisions would have binding effect and would supersede domestic law. Depending on the interpretive method employed, treaty law could attain varying degrees of authoritativeness under interpretive incorporation: as non-law, soft law, or hard law.
As non-law, treaty provisions are treated as contextual content, similar to community practices, academic opinion, and public policy. They are not binding or necessarily persuasive but are referred to for their confirmatory value. In other words, non-law does not change the state of domestic law, but reinforces its authority. In comparison, soft law shifts domestic law towards one (rather than another) preferred meaning. Human rights treaty provisions are given quasi-legal status, having persuasive, but not binding, authority. As hard law, treaty provisions could even override domestic law. They would be binding rules and could be directly enforceable as a source of rights and obligations.
Of the five interpretive methods discussed, the first method treats human rights treaties as non-law: judges use international law to reinforce their reasoning and confirm an outcome, but the discussion of human rights treaties is not integral to the court’s analysis. The second, third, and fourth techniques that Waters identified essentially treat unincorporated human rights treaties as soft law. Treaties are used to inform and possibly imply substantive content of domestic statutes and the common law. In contrast, the fifth method gives unincorporated human rights treaties effect as hard law, and would constitute the greatest incursion to the dualist regime.
Since interpretive incorporation relies on domestic law to import a human rights treaty, the extent to which the treaty is importable depends on the domestic law itself. The relevant texts and judicial philosophy would be crucial controlling factors. It remains to be seen how these factors play out in Singapore.
Jaclyn is an Assistant Professor at the NUS Law Faculty where she teaches and researches on constitutional law and theory.
Melissa A. Waters, Creeping Monism: The Judicial Trend Toward Interpretive Incorporation of Human Rights Treaties, 107 Colum. L. R. 628 (2007).
Li-ann Thio, Soft Constitutional law in Nonliberal Asian Constitutional Democracies, 8 Int’l J. Const. L. 766 (2010).
Jack Lee Tsen-Ta, The Mandatory Death Penalty and a Sparsely Worded Constitution, 127 Law Q. Rev. 192 (2011).