Constitutional and Administrative Law (LAW204)
2011–2012, Semester 1
Individual Research Paper
Instructor:Assistant Prof. Jack Tsen-Ta Lee
I declare that this research paper contains 2993 words.
An assertion that the unequal constitutional treatment of minorities in Singapore must exist to the extent necessary to achieve substantive equality is not entirely justified. It is submitted that the unequal constitutional treatment of minorities cannot be squarely situated within the theoretical framework of substantive equality. In particular, the redistributive aim of substantive equality does not fit in with Singapore’s unique historical background and policies. The predominant purpose of unequal treatment under the Constitution is not to achieve substantive equality, but to preserve multiculturalism and meritocracy.
The unequal treatment of minorities finds its place in three different Constitutional institutions and safeguards: the Presidential Council for Minority Rights (“PCMR”), the Group Representation Constituencies (“GRC”) scheme, and Articles 152 and 153. The scope of this paper is confined to the unequal treatment of constitutionally defined minorities ie racial and religious minorities. Minorities not expressly identified in the Constitution, such as sexual minorities, will not be discussed.
This paper examines whether the constitutional institutions providing for unequal treatment of minorities are geared towards the achievement of substantive equality. Firstly, the inadequacies of formal equality and the equal protection clause will be examined. The need for unequal treatment to resolve issues with formal equality will also be examined. The next section will canvass the theoretical landscape of substantive equality. Additionally, Fredman’s multi-dimensional framework outlining the aims of substantive equality will be utilised to understand the amorphous concept of equality.
The third section will assess whether the different constitutional institutions and safeguards in Singapore, providing for the unequal treatment of minorities, can be housed within the multi-dimensional approach to substantive equality.
Lastly, this paper will conclude that the concept of achieving substantive equality is an aspiration, or at most a peripheral aim, of Singapore’s unique approach to politics and government. There are various historical and policy-based reasons for the unequal treatment of minorities under the Constitution.
II.Formal equality and Art 12
To justify the need for unequal constitutional treatment of minorities, the theoretical underpinnings and practical implications of formal equality must first be examined.
A formal conception of equality, often represented by the Aristotelian axiom that like cases should be treated alike has been described as a “general axiom of rational behaviour”. However, a discussion of the empty concept of formal equality is meaningless without any context. Aristotle himself acknowledged that equals are entitled to equal things but he asked equals and unequals in what? In what respect are people to be equally treated? Formal equality does not answer the question of how people are to be equally treated. One must turn to a more substantive conception of equality to identify the principles to be applied in a given context.
Another shortcoming of formal equality is that it entrenches difference where there is antecedent inequality. Therefore, a departure from consistent treatment is necessary; unequal treatment is required to achieve genuine or substantive equality. The necessity of such treatment is described as a “positive duty to provide”.
B.Art 12 and minority rights
Formal equality finds its place in the guarantee of consistent treatment under the equal protection clause of Art 12. Unless the...