A reconsideration of equal protection and executive action in Singapore

Abstract

ABSTRACT In Syed Suhail bin Syed Zin v Attorney-General [2020] SGCA 122, the Singapore Court of Appeal reconsidered how Article 12(1), the Singapore Constitution's equal protection provision, should apply to executive actions. Departing from the established ‘deliberate and arbitrary’ test, the Court of Appeal proposed to first consider whether the relevant persons were ‘equally situated’ and subject to differential treatment. If so, this treatment had to be justified by legitimate reasons. This case note argues that while the rejection of the ‘deliberate and arbitrary’ test is welcomed, this approach risks returning to an emphasis on classes in equal protection analysis—an emphasis which has been criticised as tautological in the Singapore courts’ own Article 12(1) jurisprudence. A requirement to articulate the substantive requirements of equality in the specific context of the executive decision in question would offer a more principled means of analysing the constitutionality of executive actions under Article 12(1).