Eng Foong Ho v. Attorney-General
Encyclopedia
Eng Foong Ho v. Attorney-General is the name of two cases of the Singapore
courts
, a High Court
decision delivered in 2008 and the 2009 judgment by the Court of Appeal
. The main issue raised by the case was whether the Collector of Land Revenue had treated the plaintiffs (later appellants), who were devotees of the Jin Long Si Temple
, unequally by compulsorily acquiring for public purposes the land on which the temple stood but not the lands of an Indian mission and a Christian church nearby. It was alleged that the authorities had acted in violation of Article 12(1)
of the Constitution of the Republic of Singapore
, which guarantees the rights to equality before the law
and equal protection of the law.
The High Court held that the plaintiffs lacked locus standi
to bring the action as they were not the temple's legal owners. In any case, as there was evidence that the authorities had rational reasons for treating the temple property differently from the property of the Mission and the Church, the High Court found that there had been no breach of Article 12(1). Furthermore, the Court determined that the plaintiffs were guilty of inordinate delay in bringing the action.
On appeal, this decision was upheld in part by the Court of Appeal. The Court of Appeal found that the plaintiffs (appellants) had locus standi to bring the action as they were members of a Buddhist
association, for whose benefit the temple property was held by its trustees. In addition, the Court found that the plaintiffs had not been guilty of inordinate delay in commencing the suit. However, the Court agreed with the trial judge that the Collector had not acted in violation of Article 12(1). In determining this issue, the Court held that the test to be applied is "whether there is a reasonable nexus between the state action taken and the object of the law". Such a nexus will be absent if the action amounts to "intentional and arbitrary discrimination" or intentional systematic discrimination. It is insufficient if any inequality is due to "inadvertence or inefficiency", unless this occurs on a very substantial scale. In addition, inequalities arising from a reasonable administrative policy or which are mere errors of judgment are insufficient to constitute a violation of Article 12(1).
, which was a temple then in the Serangoon
area of Singapore
espousing Buddhist
, Confucian
and Taoist
teachings. The temple property, which was located near the site of the Bartley Mass Rapid Transit (MRT) Station
, was compulsorily acquired
pursuant to the Land Acquisition Act. The Government Gazette notification relating to the acquisition published on 20 January 2003 specified that the temple property (together with another piece of land nearby) had been acquired for the construction and comprehensive redevelopment of the Mass Rapid Transit
's Circle Line
.
The trustees of the temple property noted that the nearby Ramakrishna Mission
("the Mission") and the Bartley Christian Church ("the Church") were not similarly acquired, and proceeded to appeal against the acquisition through various avenues, including an appeal to the Prime Minister
. Their attempts were unsuccessful.
for a declaratory order against the compulsory acquisition. Their filing was based on Article 12(1) of the Constitution of Singapore, which reads: "All persons are equal before the law and entitled to the equal protection of the law." The filing alleged that the executive action of acquiring the temple land was discriminatory and in violation of Article 12(1).
to commence the action. The plaintiffs claimed to have a strong emotional connection to the temple which gave them a "legitimate interest" in this issue. However, Justice Tan Lee Meng
held that the plaintiffs, who were merely temple devotees, did not have the required locus standi to institute the proceedings, as opposed to the trustees of the temple who were its legal owners. He relied on the Court of Appeal
's judgment in Karaha Bodas Co. LLC v. Pertamina Energy Trading Ltd. (2006), which stated that "to have the necessary standing, the plaintiff must be asserting the recognition of a 'right' that is personal to him". The Court also referred to Lord Diplock
's judgment in Gouriet v. Union of Post Office Workers (1977) where he held that the courts should only be concerned with rights in so much as they are legal rights which are enforceable by one party against another.
Tan J. rejected the plaintiffs' argument that, by compulsorily acquiring a temple, the Government
was limiting a person's right under Article 15(1)
of the Constitution
to profess, practice and propagate his or her religion, and that this in turn gave him or her the legal right to commence an action on the ground that where an individual's constitutional rights are affected, he or she has a sufficient interest to ensure that his or her rights are protected. He held that this land acquisition matter was not in any way related to religious freedom. As such, only the trustees who were the legal owners of the temple property had the requisite locus standi to institute proceedings if they were of the view that their rights had been infringed.
However, the judge regarded this as an "unsubstantiated allegation". According to a notification published in the Government Gazette, the temple property had been acquired for comprehensive redevelopment of the site. Under section 5(3) of the Land Acquisition Act, the notification was conclusive evidence that the property was required for that purpose. The judge accepted evidence tendered by the Attorney-General
that the property of the Church and the Mission had not been compulsorily acquired because they were unsuitable for redevelopment. As no state land adjoined the Church property or the surrounding lands, there was no reasonable opportunity for amalgamating the Church property with existing state land. As for the Mission property, the three main buildings on it had been under study for conservation since 2002, and were gazetted for conservation in 2006. There was "ample evidence" that, where necessary, the Government had acquired for public purposes properties zoned as places of worship.
Although one of the plaintiffs' witnesses, a chartered
land surveyor
, had suggested that the authorities could redevelop the land in a different manner, he did not submit that the authorities' redevelopment plan was wrong or indefensible. The court was not in a position to decide which plans for redeveloping areas in Singapore were better. Thus, the acquisition of the temple property had not infringed Article 12(1)
of the Constitution.
, delivering the Court's judgment, opined that since according to the land register
the temple was held in trust for San Jiao Sheng Tang Buddhist Association, of which the devotees were members, they had the requisite locus standi to bring the issue before the court.
Eng Foong Ho was subsequently cited in Tan Eng Hong v. Attorney-General (2011) in support of the proposition that in order for a person to have locus standi to launch a constitutional claim, he or she must allege a violation of his or her own constitutional rights – that is, a "substantial interest" – rather than satisfy a lower "sufficient interest" test.
been a delay, the appellants at the time had believed that the trustees and the authorities were engaged in settlement discussions that might lead to resolution of the dispute. In those circumstances, the Court opined that there had not been an inordinate delay by the appellants in starting their lawsuit. Furthermore the Court opined on an obiter
basis that, in any case, a "delay in asserting one's constitutional rights may not always be a relevant factor unless the State has been irreparably prejudiced by the assertion of such rights".
and equal protection of the law, "prohibits laws which require that some individuals within a single class should be treated by way of punishment more harshly than others". In essence, persons belonging to the same class should be treated in the same manner. Bearing in mind the separation of powers
, Lord Diplock was of the opinion that it was up to the legislature to decide the differentia distinguishing different classes of individuals. If the factor which the legislature adopts as constituting the dissimilarity in circumstances is not purely arbitrary but bears a reasonable relation to the social object of the law, there is no inconsistency with Article 12(1) of the Constitution.
This concept was more fully expounded in Public Prosecutor v. Taw Cheng Kong
(1998), in which the Court of Appeal reasoned that since the object of Article 12(1) is to guard against various forms of arbitrariness, the test to be applied is to ask if the law treats different classes of persons differently. If it does, then the court must ask whether the differential treatment is based on intelligible differentia. The court must then go on to consider whether the basis of differential treatment bears a reasonable relation or nexus to the object of the law.
In Eng Foong Ho, the Court of Appeal noted that it was not necessary to discuss the principle of reasonable classification of laws which was the subject of Taw Cheng Kong, since the appellants had not challenged the constitutionality of the Land Acquisition Act. In the present case, the appellants were challenging the application rather than the validity of the Act. Phang J.A. therefore applied a modified form of the Taw Cheng Kong rational nexus test, holding that "[t]he question is whether there is a reasonable nexus between the state action and the objective to be achieved by the law". He relied on the principles set out in the Privy Council
cases Howe Yoon Chong v. Chief Assessor (1980) and Howe Yoon Chong v. Chief Assessor (1990). These cases involved alleged inequality in property valuation
for the purpose of determining property tax
. The significance of the two Howe Yoon Chong cases is that they prescribed limits as to what constitutes inequality. Several salient points were drawn from the cases in Eng Foong Ho:
One academic has noted that it is not clear whether the Court of Appeal was laying down "intentional and arbitrary discrimination" as the sole test for whether executive acts comply with Article 12(1) of the Constitution, or whether it is only one possible test and that executive acts can also be challenged if they fail a reasonable classification test. This is because "[a]rbitrariness implies the lack of any rationality", and it is much harder for a plaintiff to prove that executive action is irrational than to show that there is no reasonable classification in the action.
In essence, the Court found that the decision of the Collector of Land Revenue was "based solely on planning considerations". This finding satisfied the rational nexus test, and thus it was clear that Article 12(1) of the Constitution had not been violated.
Phang J.A. also held that section 5(3) of the Land Acquisition Act was not necessarily determinative of the matter in the Collector's favour, as acquisitions can be challenged for having been made in bad faith. However, the provision applied in this case as no bad faith on the Collector's part had been alleged by the appellants.
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
courts
Judicial system of Singapore
The full Judicial power in Singapore is vested in the Supreme Court as well as subordinate courts by the Constitution of Singapore. The Supreme Court consists of the Court of Appeal and the High Court. The Court of Appeal exercises appellate criminal and civil jurisdiction, while the High Court...
, a High Court
High Court of Singapore
The High Court of the Republic of Singapore is the lower division of the Supreme Court of Singapore, the upper being the Court of Appeal. It consists of the Chief Justice of Singapore and the Judges of the High Court. Judicial Commissioners are often appointed to assist with the Court's caseload...
decision delivered in 2008 and the 2009 judgment by the Court of Appeal
Court of Appeal of Singapore
The Court of Appeal of the Republic of Singapore is the nation's highest court and its court of final appeal. It is the upper division of the Supreme Court of Singapore, the lower being the High Court. The Court of Appeal consists of the Chief Justice of Singapore, who is the President of the...
. The main issue raised by the case was whether the Collector of Land Revenue had treated the plaintiffs (later appellants), who were devotees of the Jin Long Si Temple
Jin Long Si Temple
Jin Long Si Temple , which is located on a hilltop at Lorong How Sun , is a unique "san-jiao" village temple in Singapore, with its teachings derived from the books of Buddhism, Taoism and Confucianism. Within its premises, lies a Bodhi tree dating to the late 1880s, which is the oldest of its...
, unequally by compulsorily acquiring for public purposes the land on which the temple stood but not the lands of an Indian mission and a Christian church nearby. It was alleged that the authorities had acted in violation of Article 12(1)
Article 12 of the Constitution of Singapore
Article 12 of the Constitution of the Republic of Singapore guarantees to all persons equality before the law and equal protection of the law. The Article also identifies four forbidden classifications – religion, race, descent and place of birth – upon which Singapore citizens may not be...
of the Constitution of the Republic of Singapore
Constitution of Singapore
The Constitution of Singapore is the supreme law of Singapore and it is a codified constitution.The constitution cannot be amended without the support of more than two-thirds of the members of parliament on the second and third readings . The president may seek opinion on constitutional issues...
, which guarantees the rights to equality before the law
Equality before the law
Equality before the law or equality under the law or legal egalitarianism is the principle under which each individual is subject to the same laws....
and equal protection of the law.
The High Court held that the plaintiffs lacked locus standi
Standing (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
to bring the action as they were not the temple's legal owners. In any case, as there was evidence that the authorities had rational reasons for treating the temple property differently from the property of the Mission and the Church, the High Court found that there had been no breach of Article 12(1). Furthermore, the Court determined that the plaintiffs were guilty of inordinate delay in bringing the action.
On appeal, this decision was upheld in part by the Court of Appeal. The Court of Appeal found that the plaintiffs (appellants) had locus standi to bring the action as they were members of a Buddhist
Buddhism in Singapore
As of 2010, 33.6% of Singaporeans identified themselves as Buddhist. Adherents of Buddhism are mostly of the Chinese majority ethnic group, although small minorities of Sinhalese and Thai Buddhists do exist as well....
association, for whose benefit the temple property was held by its trustees. In addition, the Court found that the plaintiffs had not been guilty of inordinate delay in commencing the suit. However, the Court agreed with the trial judge that the Collector had not acted in violation of Article 12(1). In determining this issue, the Court held that the test to be applied is "whether there is a reasonable nexus between the state action taken and the object of the law". Such a nexus will be absent if the action amounts to "intentional and arbitrary discrimination" or intentional systematic discrimination. It is insufficient if any inequality is due to "inadvertence or inefficiency", unless this occurs on a very substantial scale. In addition, inequalities arising from a reasonable administrative policy or which are mere errors of judgment are insufficient to constitute a violation of Article 12(1).
Background
The plaintiffs in this case were devotees of the Jin Long Si TempleJin Long Si Temple
Jin Long Si Temple , which is located on a hilltop at Lorong How Sun , is a unique "san-jiao" village temple in Singapore, with its teachings derived from the books of Buddhism, Taoism and Confucianism. Within its premises, lies a Bodhi tree dating to the late 1880s, which is the oldest of its...
, which was a temple then in the Serangoon
Serangoon
Serangoon is town situated in the central part of the city-state of Singapore, within the North-East Region. The Housing and Development Board housing estate of Serangoon New Town in Serangoon is one of the smaller new towns. Its town centre is known as Serangoon Central, and is the target of...
area of Singapore
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
espousing Buddhist
Buddhism in Singapore
As of 2010, 33.6% of Singaporeans identified themselves as Buddhist. Adherents of Buddhism are mostly of the Chinese majority ethnic group, although small minorities of Sinhalese and Thai Buddhists do exist as well....
, Confucian
Confucianism
Confucianism is a Chinese ethical and philosophical system developed from the teachings of the Chinese philosopher Confucius . Confucianism originated as an "ethical-sociopolitical teaching" during the Spring and Autumn Period, but later developed metaphysical and cosmological elements in the Han...
and Taoist
Taoism in Singapore
Taoism is adhered to by 8.5% of the entire population of Singapore. In general, nearly all adherents of Taoism in Singapore are associated with the mainstream Zhen Yi school...
teachings. The temple property, which was located near the site of the Bartley Mass Rapid Transit (MRT) Station
Bartley MRT Station
Bartley MRT Station is an underground Mass Rapid Transit station on the Circle Line in Singapore. The station is situated along Bartley Road outside Maris Stella High School. There are 2 exit and entry points for this station which was constructed under Stage 3 of the Circle Line...
, was compulsorily acquired
Eminent domain
Eminent domain , compulsory purchase , resumption/compulsory acquisition , or expropriation is an action of the state to seize a citizen's private property, expropriate property, or seize a citizen's rights in property with due monetary compensation, but without the owner's consent...
pursuant to the Land Acquisition Act. The Government Gazette notification relating to the acquisition published on 20 January 2003 specified that the temple property (together with another piece of land nearby) had been acquired for the construction and comprehensive redevelopment of the Mass Rapid Transit
Mass Rapid Transit (Singapore)
The Mass Rapid Transit or MRT is a rapid transit system that forms the backbone of the railway system in Singapore, spanning the entire city-state. The initial section of the MRT, between Yio Chu Kang Station and Toa Payoh Station, opened in 1987 establishing itself as the second-oldest metro...
's Circle Line
Circle MRT Line
The Circle Line is Singapore's fourth Mass Rapid Transit line, operated by SMRT Corporation. This underground line is currently long with 28 stations and is fully automatically operated...
.
The trustees of the temple property noted that the nearby Ramakrishna Mission
Ramakrishna Mission
Ramakrishna Math and Ramakrishna Mission are twin organizations which form the core of a worldwide spiritual movement known as Ramakrishna Movement or Vedanta Movement. The Ramakrishna Mission is a philanthropic, volunteer organization founded by Ramakrishna's chief disciple Swami Vivekananda on...
("the Mission") and the Bartley Christian Church ("the Church") were not similarly acquired, and proceeded to appeal against the acquisition through various avenues, including an appeal to the Prime Minister
Prime Minister of Singapore
The Prime Minister of the Republic of Singapore is the head of the government of the Republic of Singapore. The President of Singapore appoints as Prime Minister a Member of Parliament who, in his opinion, is most likely to command the confidence of a majority of MPs.The office of Prime Minister...
. Their attempts were unsuccessful.
Lawsuit
Following the failure of the last appeal by the trustees of the temple, in January 2008 the plaintiffs filed an application in the High CourtHigh Court of Singapore
The High Court of the Republic of Singapore is the lower division of the Supreme Court of Singapore, the upper being the Court of Appeal. It consists of the Chief Justice of Singapore and the Judges of the High Court. Judicial Commissioners are often appointed to assist with the Court's caseload...
for a declaratory order against the compulsory acquisition. Their filing was based on Article 12(1) of the Constitution of Singapore, which reads: "All persons are equal before the law and entitled to the equal protection of the law." The filing alleged that the executive action of acquiring the temple land was discriminatory and in violation of Article 12(1).
Plaintiffs lack locus standi
The preliminary issue arising during the trial in the High Court was whether the plaintiffs had locus standiStanding (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
to commence the action. The plaintiffs claimed to have a strong emotional connection to the temple which gave them a "legitimate interest" in this issue. However, Justice Tan Lee Meng
Tan Lee Meng
Justice Tan Lee Meng is a judge of the Supreme Court of Singapore. He was first appointed Judicial Commissioner in February 1997, and then appointed Judge in August 1997....
held that the plaintiffs, who were merely temple devotees, did not have the required locus standi to institute the proceedings, as opposed to the trustees of the temple who were its legal owners. He relied on the Court of Appeal
Court of Appeal of Singapore
The Court of Appeal of the Republic of Singapore is the nation's highest court and its court of final appeal. It is the upper division of the Supreme Court of Singapore, the lower being the High Court. The Court of Appeal consists of the Chief Justice of Singapore, who is the President of the...
's judgment in Karaha Bodas Co. LLC v. Pertamina Energy Trading Ltd. (2006), which stated that "to have the necessary standing, the plaintiff must be asserting the recognition of a 'right' that is personal to him". The Court also referred to Lord Diplock
Kenneth Diplock, Baron Diplock
William John Kenneth Diplock, Baron Diplock, KC was an English judge and Law Lord.-Early life:Born the son of a Croydon solicitor, he attended Whitgift School and University College, Oxford, where he read chemistry and was later to become an Honorary Fellow.-Career:Diplock was called to the bar by...
's judgment in Gouriet v. Union of Post Office Workers (1977) where he held that the courts should only be concerned with rights in so much as they are legal rights which are enforceable by one party against another.
Tan J. rejected the plaintiffs' argument that, by compulsorily acquiring a temple, the Government
Government of Singapore
The Government of Singapore is defined by the Constitution of the Republic of Singapore to mean the Executive branch of government, which is made up of the President and the Cabinet of Singapore. Although the President acts in his personal discretion in the exercise of certain functions as a check...
was limiting a person's right under Article 15(1)
Article 15 of the Constitution of Singapore
Article 15 of the Constitution of the Republic of Singapore guarantees freedom of religion in Singapore. Specifically, Article 15 states: "Every person has the right to profess and practise his religion and to propagate it."...
of the Constitution
Constitution of Singapore
The Constitution of Singapore is the supreme law of Singapore and it is a codified constitution.The constitution cannot be amended without the support of more than two-thirds of the members of parliament on the second and third readings . The president may seek opinion on constitutional issues...
to profess, practice and propagate his or her religion, and that this in turn gave him or her the legal right to commence an action on the ground that where an individual's constitutional rights are affected, he or she has a sufficient interest to ensure that his or her rights are protected. He held that this land acquisition matter was not in any way related to religious freedom. As such, only the trustees who were the legal owners of the temple property had the requisite locus standi to institute proceedings if they were of the view that their rights had been infringed.
Article 12(1) of the Constitution not violated
Tan J. cited Ong Ah Chuan v. Public Prosecutor (1980) for the proposition that "[e]quality before the law and equal protection of the law require that like should be compared with like. What Art 12(1) of the Constitution assures to the individual is the right to equal treatment with other individuals in similar circumstances." (Emphasis added.) He noted the plaintiffs had made it clear that they were not alleging bad faith on the part of the authorities in acquiring the temple land; rather, that there were no rational reasons for treating the temple property differently from that of the Mission and the Church.However, the judge regarded this as an "unsubstantiated allegation". According to a notification published in the Government Gazette, the temple property had been acquired for comprehensive redevelopment of the site. Under section 5(3) of the Land Acquisition Act, the notification was conclusive evidence that the property was required for that purpose. The judge accepted evidence tendered by the Attorney-General
Attorney-General of Singapore
The Attorney-General of Singapore is the legal adviser to the government of the Republic of Singapore and its public prosecutor.The office was founded in 1867 as the chief legal officer of the British crown colony of the Straits Settlements. The current requirements for appointment as...
that the property of the Church and the Mission had not been compulsorily acquired because they were unsuitable for redevelopment. As no state land adjoined the Church property or the surrounding lands, there was no reasonable opportunity for amalgamating the Church property with existing state land. As for the Mission property, the three main buildings on it had been under study for conservation since 2002, and were gazetted for conservation in 2006. There was "ample evidence" that, where necessary, the Government had acquired for public purposes properties zoned as places of worship.
Although one of the plaintiffs' witnesses, a chartered
Chartered Surveyor
Chartered Surveyor is the description ofProfessional Members and Fellows of the RICS entitled to use the designation in Commonwealth countries and Ireland...
land surveyor
Surveying
See Also: Public Land Survey SystemSurveying or land surveying is the technique, profession, and science of accurately determining the terrestrial or three-dimensional position of points and the distances and angles between them...
, had suggested that the authorities could redevelop the land in a different manner, he did not submit that the authorities' redevelopment plan was wrong or indefensible. The court was not in a position to decide which plans for redeveloping areas in Singapore were better. Thus, the acquisition of the temple property had not infringed Article 12(1)
Article 12 of the Constitution of Singapore
Article 12 of the Constitution of the Republic of Singapore guarantees to all persons equality before the law and equal protection of the law. The Article also identifies four forbidden classifications – religion, race, descent and place of birth – upon which Singapore citizens may not be...
of the Constitution.
Inordinate delay
The Court found that, in any case, the plaintiffs had inordinately delayed commencing an action. The Court noted that the notice to acquire the land had been gazetted on 20 January 2003, more than five years before the High Court decision. Tan J. rejected the plaintiffs' argument that they were not guilty of delay since it was only in November 2007 that they learned that the authorities would not be reversing their decision. In his view, the fact that the decision would not be reversed was "made plain long ago".Court of Appeal judgment
On appeal to the Court of Appeal, three issues were raised. The first issue was whether the plaintiffs (appellants) had the requisite locus standi. The second was whether there had been an inordinate delay on the appellants' part in pursuing the matter in court. The third issue is the most significant and is the focus of this article, namely, whether the acquisition of the temple property violated Article 12(1) of the Constitution.Plaintiffs have locus standi
The Court of Appeal disagreed with the trial judge's finding with regards to locus standi. Judge of Appeal Andrew PhangAndrew Phang
Judge of Appeal Andrew Phang Boon Leong is a Judge of the Supreme Court of Singapore.Born in Singapore in 1957, he received his LL.B. from the University of Singapore in 1982, before earning his LL.M. and S.J.D. from Harvard University in 1984 and 1988 respectively...
, delivering the Court's judgment, opined that since according to the land register
Land registration
Land registration generally describes systems by which matters concerning ownership, possession or other rights in land can be recorded to provide evidence of title, facilitate transactions and to prevent unlawful disposal...
the temple was held in trust for San Jiao Sheng Tang Buddhist Association, of which the devotees were members, they had the requisite locus standi to bring the issue before the court.
Eng Foong Ho was subsequently cited in Tan Eng Hong v. Attorney-General (2011) in support of the proposition that in order for a person to have locus standi to launch a constitutional claim, he or she must allege a violation of his or her own constitutional rights – that is, a "substantial interest" – rather than satisfy a lower "sufficient interest" test.
No inordinate delay
The Court of Appeal also held that although there had prima faciePrima facie
Prima facie is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face", from the feminine form of primus and facies , both in the ablative case. It is used in modern legal English to signify that on first examination, a...
been a delay, the appellants at the time had believed that the trustees and the authorities were engaged in settlement discussions that might lead to resolution of the dispute. In those circumstances, the Court opined that there had not been an inordinate delay by the appellants in starting their lawsuit. Furthermore the Court opined on an obiter
Obiter dictum
Obiter dictum is Latin for a statement "said in passing". An obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision...
basis that, in any case, a "delay in asserting one's constitutional rights may not always be a relevant factor unless the State has been irreparably prejudiced by the assertion of such rights".
Modified rational nexus test
In its ruling, the Court of Appeal cited Ong Ah Chuan, wherein Lord Diplock held that Article 12(1), which sets out the principle of equality before the lawEquality before the law
Equality before the law or equality under the law or legal egalitarianism is the principle under which each individual is subject to the same laws....
and equal protection of the law, "prohibits laws which require that some individuals within a single class should be treated by way of punishment more harshly than others". In essence, persons belonging to the same class should be treated in the same manner. Bearing in mind the separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
, Lord Diplock was of the opinion that it was up to the legislature to decide the differentia distinguishing different classes of individuals. If the factor which the legislature adopts as constituting the dissimilarity in circumstances is not purely arbitrary but bears a reasonable relation to the social object of the law, there is no inconsistency with Article 12(1) of the Constitution.
This concept was more fully expounded in Public Prosecutor v. Taw Cheng Kong
Public Prosecutor v. Taw Cheng Kong
Public Prosecutor v. Taw Cheng Kong is a landmark case decided in 1998 by the Court of Appeal of Singapore which shaped the landscape of Singapore's constitutional law. The earlier High Court decision, Taw Cheng Kong v. Public Prosecutor, was the first instance in Singapore's history that a...
(1998), in which the Court of Appeal reasoned that since the object of Article 12(1) is to guard against various forms of arbitrariness, the test to be applied is to ask if the law treats different classes of persons differently. If it does, then the court must ask whether the differential treatment is based on intelligible differentia. The court must then go on to consider whether the basis of differential treatment bears a reasonable relation or nexus to the object of the law.
In Eng Foong Ho, the Court of Appeal noted that it was not necessary to discuss the principle of reasonable classification of laws which was the subject of Taw Cheng Kong, since the appellants had not challenged the constitutionality of the Land Acquisition Act. In the present case, the appellants were challenging the application rather than the validity of the Act. Phang J.A. therefore applied a modified form of the Taw Cheng Kong rational nexus test, holding that "[t]he question is whether there is a reasonable nexus between the state action and the objective to be achieved by the law". He relied on the principles set out in the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
cases Howe Yoon Chong v. Chief Assessor (1980) and Howe Yoon Chong v. Chief Assessor (1990). These cases involved alleged inequality in property valuation
Real estate appraisal
Real estate appraisal, property valuation or land valuation is the process of valuing real property. The value usually sought is the property's Market Value. Appraisals are needed because compared to, say, corporate stock, real estate transactions occur very infrequently...
for the purpose of determining property tax
Property tax
A property tax is an ad valorem levy on the value of property that the owner is required to pay. The tax is levied by the governing authority of the jurisdiction in which the property is located; it may be paid to a national government, a federated state or a municipality...
. The significance of the two Howe Yoon Chong cases is that they prescribed limits as to what constitutes inequality. Several salient points were drawn from the cases in Eng Foong Ho:
- An executive act may be unconstitutional if it amounts to "intentional and arbitrary discrimination". Thus, an intentional systematic undervaluation of property would breach Article 12(1) of the Constitution, though "something less might perhaps suffice".
- However, absolute equality is not attainable and inequalities arising from "the application of a reasonable administrative policy" or "mere errors of judgement" are not sufficient to constitute a violation of Article 12(1). Inequalities due to "inadvertence or inefficiency" need to be on "a very substantial scale" to violate the Article.
One academic has noted that it is not clear whether the Court of Appeal was laying down "intentional and arbitrary discrimination" as the sole test for whether executive acts comply with Article 12(1) of the Constitution, or whether it is only one possible test and that executive acts can also be challenged if they fail a reasonable classification test. This is because "[a]rbitrariness implies the lack of any rationality", and it is much harder for a plaintiff to prove that executive action is irrational than to show that there is no reasonable classification in the action.
Application of law to the facts
On the facts, Phang J.A. remarked that the appellants had not alleged any arbitrary action by the Government in compulsorily acquiring the temple property, and had in fact conceded that the acquisition had been proceeded with in good faith. Thus, the judge noted that "it is not clear where the discrimination lies other than in the consequential fact that the properties of the Mission and the Church were not acquired but that of the Temple was". The Attorney-General (respondent) presented the following evidence:- The Government had a long standing policy of optimizing land use around MRT stations, and the amalgamation of the state landPublic landIn all modern states, some land is held by central or local governments. This is called public land. The system of tenure of public land, and the terminology used, varies between countries...
adjoining the temple property provided an opportunity to realize significant development potential of the land. - In contrast, there was no state land adjoining the Church. It was surrounded by a low density housing area and thus did not provide the same developmental potential as the temple property.
- The Mission site had been under study for conservation since 2002. The three main buildings on the site were eventually gazetted for conservation in 2006, and hence the site was inappropriate for acquisition. Although the appellant had argued that a football field on the Mission site should have been acquired instead of the temple property, the three main buildings were functionally integrated and acquisition of part of the Mission site would have resulted in a plot of state land that was highly irregular in shape. In any case, the appellant's argument did not relate to proper land use planning.
In essence, the Court found that the decision of the Collector of Land Revenue was "based solely on planning considerations". This finding satisfied the rational nexus test, and thus it was clear that Article 12(1) of the Constitution had not been violated.
Phang J.A. also held that section 5(3) of the Land Acquisition Act was not necessarily determinative of the matter in the Collector's favour, as acquisitions can be challenged for having been made in bad faith. However, the provision applied in this case as no bad faith on the Collector's part had been alleged by the appellants.
Cases
- Howe Yoon Chong v. Chief Assessor [1980] UKPC 26, [1979–1980] S.L.R.(R.) [Singapore Law Reports (Reissue)] 594, Privy CouncilJudicial Committee of the Privy CouncilThe Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
(on appeal from Singapore). - Ong Ah Chuan v. Public Prosecutor [1980] UKPC 32, [1981] A.C. 648, [1979–1980] S.L.R.(R.) 710, P.C. (on appeal from Singapore).
- Howe Yoon Chong v. Chief Assessor [1990] UKPC 7, [1990] 1 S.L.R.(R.) 78, P.C. (on appeal from Singapore).
- Public Prosecutor v. Ang Soon Huat [1990] 2 S.L.R.(R.) 246 at 258, para. 23, High CourtHigh Court of SingaporeThe High Court of the Republic of Singapore is the lower division of the Supreme Court of Singapore, the upper being the Court of Appeal. It consists of the Chief Justice of Singapore and the Judges of the High Court. Judicial Commissioners are often appointed to assist with the Court's caseload...
(Singapore). - Eng Foong Ho v. Attorney-General [2008] 3 S.L.R.(R.) 437, H.C. (Singapore) ("Eng Foong Ho (H.C.)"). ("Eng Foong Ho (C.A.)").