page_title: Article 9 of the Constitution of Singapore
section_title: Customary international law
hierarchical_section_title: Article 9 of the Constitution of Singapore / Rights to life and personal liberty / Meaning of save in accordance with law / Customary international law
caption_attribution_description: English: Room of the United Nations General Assembly. Español: Salón de la Asamblea General de la ONU.
context_page_description: Article 9 of the Constitution of the Republic of Singapore, specifically Article 9, guarantees the right to life and the right to personal liberty. The Court of Appeal has called the right to life the most basic of human rights, but has yet to fully define the term in the Constitution. Contrary to the broad position taken in jurisdictions such as Malaysia and the United States, the High Court of Singapore has said that personal liberty only refers to freedom from unlawful incarceration or detention.
  Article 9 states that persons may be deprived of life or personal liberty "in accordance with law". In Ong Ah Chuan v. Public Prosecutor, an appeal to the Judicial Committee of the Privy Council from Singapore, it was held that the term law means more than just legislation validly enacted by Parliament, and includes fundamental rules of natural justice. Subsequently, in Yong Vui Kong v. Attorney-General, the Court of Appeal held that such fundamental rules of natural justice embodied in the Constitution are the same in nature and function as common law rules of natural justice in administrative law, except that they operate at different levels of the legal order.
context_section_description: In Nguyen Tuong Van v. Public Prosecutor (2004), the Court of Appeal considered whether law in Article 9(1) includes principles of customary international law. In that case, the appellant argued that effecting a death sentence for drug trafficking by hanging is unconstitutional as a form of cruel and inhuman punishment not "in accordance with law". The Court agreed that there was a prohibition against torture and cruel and inhumane treatment in Article 5 of the Universal Declaration of Human Rights and that this is considered customary international law. However, a customary international law rule had to be "clearly and firmly established" before it was adopted by the courts, and there was insufficient practice among states to hold that death by hanging was within the ambit of this prohibition. Also, even if there was a customary international law rule against death by hanging, domestic statutes would prevail in the event of conflict.
  The Court of Appeal clarified in Yong Vui Kong v. Public Prosecutor (2010), that customary international law cannot be read into the Constitution for two reasons. First, in order for a customary international law rule to have legal effect in Singapore, it has to be incorporated into domestic law. The incorporation can occur either by enactment in a statute or by a court declaration that the rule forms part of the common law. The Court felt it would be incorrect to incorporate customary international law rules into the meaning of law in Article 9(1) as this would cloak the common law with the constitutional status to nullify a statute, thus reversing the usual hierarchy of legal rules. Secondly, the term law is defined in Article 2(1) to include the common law only "in so far as it is in operation in Singapore". However, a court cannot treat rules of customary international law as having been incorporated into Singapore common law if they are inconsistent with existing statutes. Furthermore, if there is a conflict between such a rule and a domestic statute, the latter prevails.
  The Constitution is silent as to the reception of international law in domestic law. In Yong Vui Kong the Court of Appeal accepted that domestic law, including the Constitution, should "as far as possible" be consistently interpreted with Singapore's international obligations. Nonetheless, while international human rights law can increase the normative pool judges may resort to in interpreting the Constitution, there are "inherent limits" such as the express wording of the constitutional text and constitutional history that "[militates] against the incorporation of those international norms".
  It has also been argued that although where possible local statutes should be interpreted in light of international treaties, it is not the role of the judiciary to import international law standards into the Constitution that are inconsistent with legislation instead of deferring to the views of the executive. According to this view, which hinges on a strict adherence to the separation of powers doctrine, the judiciary should guard against unwarranted incursions into the executive sphere, as it is for the executive to determine Singapore's attitude and position in relation to foreign affairs. The judiciary must not undertake its task of interpreting the Constitution arbitrarily, but should accord with legal reasoning and sound principles. This necessarily raises the question of what the applicable legal principle during the interpretation process should be. It has been suggested that the executive and the judiciary should show solidarity by speaking with "one voice", and that the courts should exercise deference in favour of what the executive deems to be the nation's attitude towards the particular international law norm that is sought to be applied.
  It may be submitted that such judicial deference to the executive results in a clear neglect of the enshrined fundamental liberties in the Constitution. The flip side to this criticism is that fundamental liberties may still be given due accord though other avenues, for example, th
caption: The United Nations General Assembly hall in New York. The Singapore Court of Appeal acknowledged in a 2004 case that Article 5 of the Universal Declaration of Human Rights, adopted by the General Assembly in 1948, prohibits torture and cruel and inhumane treatment, and that this is considered customary international law. However, what constitutes "cruel and inhumane treatment" remains unclear.
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