page_title: Eng Foong Ho v Attorney-General
section_title: Modified rational nexus test
hierarchical_section_title: Eng Foong Ho v Attorney-General / Court of Appeal judgment / No violation of Article 12(1) / Modified rational nexus test
caption_attribution_description: English: Article 12 of the Constitution of the Republic of Singapore (1999 Reprint).
context_page_description: 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, 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 a Hindu mission and a Christian church nearby. It was alleged that the authorities had acted in violation of Article 12 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. Furthermore, the Court determined that the plaintiffs were guilty of inordinate delay in bringing the action.
context_section_description: 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 law 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. The Court 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". The Court opinion 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:
  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 judgment" 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.
  Thio Li-ann 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.
caption: Article 12 in the 1999 Reprint of the Constitution of Singapore
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